PR CIT Vs Sunshine Import And Export Pvt Ltd

Whether admission made by the assessee can be treated as conclusive evidence - NO: HC

Whether statement recorded u/s 133A carries any evidentiary value - NO : HC

- Revenue's appeal dismissed: BOMBAY HIGH COURT

2020-TIOL-758-HC-MUM-IT

PR CIT Vs VVF Ltd

Whether deduction u/s 10(2)(xv) can be allowed in respect of certain expenditure even if any person other than the assessee benefitted from such expenditure - YES: HC

Whether the Tribunal was justified in deleting the addition made in pursuant to the report of the DRI after recording that the report has been quashed by CESTAT without appreciating that the decision of CESTAT had not been accepted by the Customs Department and appeal is pending before High Court – NO : HC

- Revenue's appeal partly allowed: BOMBAY HIGH COURT

2020-TIOL-757-HC-KAR-IT

CIT Vs Corporation Bank

Whether disallowance u/s 14A r/w Rule 8D, of expenses incurred on earning exempt income is sustainable, if the AO did not mention any any basis for such expenses when invoking these provisions - NO: HC

- Revenue's appeal dismissed: KARNATAKA HIGH COURT

2020-TIOL-756-HC-AHM-IT

PR CIT Vs Chittorgarh Kota Tollway Pvt Ltd

Whether disallowance of certain expenses is justly set aside where the assessee would be entitled for deduction u/s 80IA in respect of such expenses - YES: HC

- Revenue's appeal dismissed: GUJARAT HIGH COURT

2020-TIOL-742-HC-KERALA-IT

Ollukkara Service Co-Operative Bank Ltd Vs ITO

Whether limitation of law for the purpose of computing limitation would be date of issuance of notice and not from the date of receipt - YES: HC

- Writ petition dismissed: KERALA HIGH COURT

2020-TIOL-741-HC-P&H-IT

PR CIT Vs Randhir Sood

Whether deletion of additions framed on account of advance money received by the assessee from sale of land, is tenable, where the assessee withholds relevant information in his possession so as to avoid scrutiny - NO: HC

- Case remanded: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-437-ITAT-DEL

National Cooperative Development Corporation Vs DCIT

Whether bank guarantee qualifies as a technical service and any fee paid towards it warrants TDS u/s 194J - NO: ITAT

- Assessee's appeal allowed: DELHI ITAT

Baban B Landage Vs ITO

Whether if the assessee is unable to prove credit entries which were not mentioned in financial statements but deposited in bank accounts, it calls for re-assessment - YES: ITAT

- Assessee's Appeal partly allowed: MUMBAI ITAT

Standard Industries Ltd Vs PR CIT

Whether PCIT is right in invoking jurisdiction u/s 263 as AO fails to make any specific enquiry on the issue that writing off of an advance given for purchase of machinery can give rise to a claim of LTCL to be carried forward is erroneous - YES : ITAT

- Assessee's appeal dismissed: MUMBAI ITAT

KKB Projects Pvt Ltd Vs PR CIT

Whether if AO has made enquiry of various expenses claimed and assessee has also placed on record all necessary documents, PCIT cannot invoke power u/s 263 on ground of lack of enquiry - YES : ITAT

- Assessee's appeal allowed: SURAT ITAT

SD Minerals Pvt Ltd Vs JCIT

Whether disallowance u/s 40A(3) can be made if cash payments to lorry drivers to deliver coke at the doors of customers are made due to business necessity - NO : ITAT

- Assessee's appeal allowed: SURAT ITAT

Jainam Cables India Pvt Ltd Vs UoI

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- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-769-HC-AHM-GST

Radhe Renewable Energy Development 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- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-768-HC-AHM-GST

S Narayan And Company Vs UoI

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- 10, deserves to be discharged - Petition disposed of: High Court [para 5 to 7]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-767-HC-AHM-GST

Shivanshi Enterprise Vs UoI

GST - Writ-applicant preferred an online application for cancellation of the GST No.24APRPK1735Q2Z9 of the Proprietory concern - In fact, the writ-applicant wanted cancellation of the GST No.24BAXPK4271K1Z5 of "Shree Sai Water Purifiers" - The aforesaid mistake committed by the writ-applicant was brought to the notice of the respondent no.2 with a request to restore the original registration - The respondent no.2 passed an order dated 04th June, 2019 restoring the registration - The grievance of the writ-applicant is that although there is an order passed by the respondent no.2 restoring the registration, which was inadvertently cancelled, yet the same has not be given effect to by the GSTN.

Held: Writ-application is disposed of with a direction to the newly impleaded respondent no.4 i.e. the GSTN Council to immediately look into the matter, more particularly, the order passed by the respondent no.2 dated 04th June, 2019, Annexure-A and see to it that the order is given effect to - such exercise is be undertaken at the earliest and be completed within a period of four weeks: High Court [para 5, 6]

- Application disposed of: GUJARAT HIGH COURT

2020-TIOL-766-HC-KERALA-GST

Pact Machines Pvt Ltd Vs State Tax Officer

GST - Subsequent to the filing of this Writ Petition (Civil) on 27.11.2019, the petitioner thereafter has filed Ext.P-6 statutory appeal on 09.12.2019 before the 6th respondent-Deputy Commissioner (Appeals), State Goods and Service Tax (SGST) Department, to impugn Ext.P-4 order of demand and penalty imposed in this case and that the petitioner has also made requisite 10% pre-deposit in the said appeal - Court has already passed an interim stay order on 27.11.2019 in this W.P(C), whereby the 1st, 2nd and 3rd respondents have been directed not to realise Ext.P-3 bank guarantee towards Ext.P-4 demand and not to take any coercive steps pursuant to the forfeiture of the simple bond during the pendency of this W.P(C), etc. and this interim order has been extended by the Court - directions and orders are, therefore, passed in the interest of justice inter alia directing that until orders are passed on the said appellate proceedings, both parties will ensure that the aforementioned bank guarantee offered by the petitioner is kept alive and renewed from time to time; that the 1st respondent or none of the official respondents will take steps to pre-maturely appropriate and encash the said bank guarantee and forfeiture of the bond – Petition disposed of: High Court [para 4, 5]

Petition disposed of: KERALA HIGH COURT

2020-TIOL-765-HC-KERALA-GST

Sobha Ltd Vs ASTO

GST - Petitioner is supplier of goods and services - While marble slabs were being transported, the 1st respondent detained the petitioner's vehicle and a detention order was passed under Section 129(1) of the Central Goods and Services Tax Act, 2017, on the ground of tax evasion - appeal filed along with stay petition challenging the order issued by 2 nd respondent - limited prayer of the petitioner is that Ext.P6 appeal and Ext.P6(a) stay petition may be directed to be considered within a time frame.

Held: Bench deems it just and appropriate to direct the 3rd respondent to consider Ext.P6 appeal and Ext.P6(a) stay petition as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment, on condition that the petitioner deposits 10% of penalty amount before the 3rd respondent on or before 15.01.2020 - All further proceedings pursuant to Ext.P5 penalty order shall be kept in abeyance, till such time a decision is rendered on Ext.P6 appeal - Petition disposed of: High Court [para 5]

- Petition disposed of: KERALA HIGH COURT

2020-TIOL-760-HC-RAJ-GST

Ultra Tech Nathdwara Cement Ltd Vs UoI

GST - Petitioner is aggrieved by the notices and orders issued by respondent whereby the petitioner was called upon to pay Goods and Services Tax for the period before it took over a company named M/s.Binani Cements Ltd. - A restraint order is also sought for against the respondents from raising any further demands or from proceeding with any coercive steps insofar as dues incurred in relation to the period prior to the transfer date on which the petitioner took over the company M/s Binani Cements in proceedings under the Insolvency Bankruptcy Code 2016 .

Held: It cannot be gainsaid that the controversy at hand hovers around the simple issue as to whether the resolution plan approved by the Committee of Creditors (COC) is binding on the department or not - In this regard, it is trite to note that as per the amended Section 31 of the IBC, the Central Govt., State Govt. or any other local authority to whom, a debt in respect of payment of dues arising under any law for the time being in force are owed, have been brought under the umbrella of the resolution plan approved by the adjudicating officer which has been made binding on such governments and local authorities - The purpose of the IBC is salutary as it has been enacted to ensure that an industry under distress does not fade into oblivion and can be revived by virtue of the resolution plan - Once the offer of the resolution applicant is accepted and the resolution plan is approved by the appropriate authority, the same is binding on all concerned to whom the industry concerned may be having statutory dues - No right of audience is given in the resolution proceedings to the operational creditors viz. the Central Govt. or the State Govt. as the case may be - reply given by the Hon'ble Finance Minister emphatically conveys that the revival of the dying industry is of primacy and to secure this objective, the government would be ready to sacrifice, leaving its interest finally in the hands of the resolution professional and the COC, as the case may be - Precedence in the Scheme of the Act is given to secure the interest of the financial creditors - The purpose of the statute is very clear that it intends to revive the dying industry by providing an opportunity to a resolution applicant to take over the same and begin the operation on a clean slate - For that purpose, the evaluation of all dues and liabilities as they exist on the date of finalization of the resolution plan have been left in the exclusive domain of the resolution professional with the approval of the COC - The courts are given an extremely limited power of judicial review into the resolution plan duly approved by the COC - In the case at hand, the situation has proceeded much further - The operational creditors i.e. the Commercial Taxes Department of Govt. of Rajasthan as well as the respondent Commissioner of Goods and Service Tax assailed the resolution plan by filing appeals before Hon'ble Supreme Court with a specific plea that their dues have not been accounted for by the COC in the resolution plan and the objection so raised stands repelled with the rejection of the appeals by Hon'ble Supreme Court - In addition thereto, it may be mentioned here that from the two possible situations; one being liquidation and the other being revival, the respondents will gain significantly in the later because as per the assessed liquidity value, their dues have been assessed as nil, whereas as per the resolution plan with revival of the industry at the instance of the resolution applicant (the petitioner company herein), their rights have been secured to the extent of Rs.72 crores odd - It may be emphasized here that the amount of Rs.72 crores assessed by the resolution professional in favour of the respondent GST Department has already been deposited by the successful resolution applicant i.e. the petitioner company - Bench is of the firm opinion that the respondents would be acting in a totally illegal and arbitrary manner while pressing for demands raised vide the notices which are impugned in this writ petition and any other demands which they may contemplate for the period prior to the resolution plan being finalized - demand notices are ex-facie illegal, arbitrary and per-se and cannot be sustained - impugned demand notices and orders and any further demands pending as on the date of finalization of the resolution plan issued/raised by the respondents Central Goods and Services Tax Department, Govt. of India are quashed and struck down: High Court [para 19, 20, 21, 22, 23, 24]

GST - Bench expresses its serious reservation on the approach of the Officers concerned of the GST in persisting with the demands raised from the petitioner in gross ignorance of the pertinent statement made by Hon'ble the Finance Minister before the Parliament and the amendment brought around in the IBC - Bench is of the firm view that the authorities should have adopted a pragmatic approach and immediately withdrawn the demands rather than indulging in a totally frivolous litigation, thereby unnecessarily adding to the overflowing dockets of cases in the courts: High Court [para 25]

- Petition allowed: RAJASTHAN HIGH COURT

2020-TIOL-743-HC-KERALA-VAT

H Musthafa Vs State Tax Officer

Whether an assessee can claim to have been denied opportunity of personal hearing, when in fact the assessee was given such opportunity where the assessee claimed to have no evidence to produce - NO: HC

- Writ petition dismissed: KERALA HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-761-HC-P&H-CX

CCE Vs Dhruv Industries Ltd

CX - The assessee-company is engaged in manufacture of metalized polypropylene film and availed Cenvat credit on capital goods and inputs - The said inputs were used for manufacturing finished goods which are metalized films used for manufacturing capacitors - The assessee is also availing benefit of Notfn 25/99-Cus and Notfn 25/2002-Cus, as applicable during relevant period and also registered with Customs Rules, 1996 - A SCN was issued to assessee that the activity of metalizing does not amount to manufacture and consequently the assessee was not entitled to take credit of inputs - Later, the Tribunal noted that from the process of manufacture explained by one R.Rohilla working as Production Manager, it is found that as in said process, goods manufactured by assessee have been transformed into good which are different and new after a particular process undertaken by assessee and the goods are marketable as such - Raw material i.e. polypropylene/polyester is subjected to a complex process to ensure that one side of insulating material is converted into a conductor having a desired thickness with adequate free margin and heavy edge - After metallization process, polypropylene film is no longer a film with insulting properties but a metalized film with conducting properties ready to be used in capacitors - Therefore, the raw material has been transformed into something new i.e. Electronic Capacitor Grade Aluminium Metalized Dielectric Plastic Film which can be used for manufacturing electronic capacitors and the Ministry of Communication and Information Technology clarified that there is a great deal of difference between the plastic film and the metalized film manufactured by assessee - From the tenor of notification, it is clear that inputs procured by assessee are altogether different from the goods manufactured by assessee - Therefore the Tribunal held that as the name, character and use of product has been changed, activity undertaken by assessee amounted to manufacture - The assessee was held as being entitled to refund of Cenvat credit under Rule 5 of CCR, 2004 which remains unutilized in Cenvat credit account on export of goods.

Held - The primary objection of the Revenue is that the appeal is not covered u/s 35G but u/s 35L of the CEA 1944 - From the provisions of Section 35L it is evident that an appeal would lie to the Apex Court where the question reates to the rate of duty of Excise or else to value of goods - In the present case, the assessee's claim was that the activity carried out by it was manufacture and hence was covered under exemption notifications - Hence the issue is for determination of the taxability - Hence the case would be covered u/s 35L of the Act because taxability depends on whether the activity carried out by the Assessee is manufacture or not - Hence the appeal is not maintainable before this court: HC

- Appeal dismissed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-552-CESTAT-KOL

Haldia Petrochemicals Ltd Vs CCE & ST

CX - Remission of VAT under West Bengal Incentive Scheme, 1999 - Revenue is of the opinion that the additional amount which has been collected by the appellant from their customers as representing VAT, but which has not been deposited as VAT, forms an additional consideration for sale and therefore, Excise Duty has to be paid on the same - demands confirmed, hence appeal to CESTAT. Held: Since such matters were pending in various States, all these appeals or at least many of them were disposed of by the Hon'ble Apex court in Super Synotex (India) Ltd - 2014-TIOL-19-SC-CX who held that Excise Duty has to be paid on such amounts which are retained by the assessee - It is not for this bench to sit in judgment over the law laid down by the Apex Court, hence, Bench is bound to follow the same - In Central Excise, each individual consignment is an assessment by itself and a mistake made in one assessment by either party and not challenged by the other, does not mean that the other party is bound by such decision contrary to law for all subsequent periods - It is clearly on record that the Revenue is aware of modus operandi of the assessee, hence allegation of suppression so as to invoke larger period of limitation is preposterous - demand for extended period of limitation needs to be set aside - penalties set aside - matter is remanded to the Adjudicating Authority for the limited purpose of re-computation of duty: CESTAT [para 7 to 11]

- Appeal disposed of: KOLKATA CESTAT

2020-TIOL-551-CESTAT-DEL

Hindustan Zinc Ltd Vs CCGST

CX - Issue is disallowance of cenvat credit on some items like Angles, Channels, Sheets and Plates etc. used in structural support and also fabricated structurals like technological structure, cable tray, earthing strip, used in the factory of production. Held: Madras High Court in the case of India Cement Limited - 2015-TIOL-650-HC-MAD-CX has held that steel items like MS Rod, Sheet, MS Channel, MS Plate, Flat, etc., are used for erection of capital goods or used for fabrication of structurals to support various machines, such as crusher, Kiln, hoopers, etc., and without such structural, machinery could not be erected and would not function; that, therefore, on these items, Cenvat credit is allowable in terms of Rule 2(a)(A) of Cenvat Credit Rules, 2004 - Accordingly, following the same, cenvat credit is available in respect of iron and steel items like Angles, Channels, Sheets, Plates etc., used as structural support - impugned order set aside and appeals allowed: CESTAT [para 7, 10]

- Appeals allowed: DELHI CESTAT

TII

TP - Re-opening of assessment based on TPO report is nullity & AO erred is passing final re-assessment order despite directions of DRP holding it to be bad in law: ITAT

I-T - Availment of net-based service can be taxed in India as Fees for Technical Service, where such information has been sourced from and is utilized outside India: ITAT

TIOL CORPLAWS

Companies Act - Petition for voluntary winding up can be allowed considering compliance of entire process of winding up with all statutory conditions and NOCs from relevant authorities and declaration of solvency: HC

SAT - Passing of penalty order based on trade logs, order logs and investigation report is in violation of principles of natural justice if these details have not been supplied to parties involved before passing order: SAT