Afcons Infrastructure Ltd Vs PR CIT

Whether powers u/s 263 can be invoked if AO has taken one of possible views on the issue and the view taken by AO is sustainable in law - NO: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

Meenu Kapoor Vs ACIT

Whether in the absence of any investigation on documentary evidences furnished there is no justification to make addition u/s 68 for unexplained loans, specially when assessee has even proved source of the source of creditors - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

Choe Jae Won Vs Government Of Tamilnadu

GST - COVID-19 - Case taken up for hearing by means of ‘Video Conferencing' through Zoom App - Allegation against the Company is that it collected GST from their buyers, and has not remitted the same to the Government of India, since August 2017 - liability was assessed to the tune of Rs.40,00,37,447/- - Petitioners, General Manager and the Managing Director of the company were arrested on 24.06.2019 and remanded to judicial custody invoking the power of arrest under Section 69 of the Act, 2017 - It is the case of the Petitioners that, the 2nd Respondent has completed the investigation and filed a Complaint before the Additional Chief Metropolitan Magistrate, Chennai, which is numbered as EOCC No.1 of 2020, hence, they seek permission of this Court to allow them to stay at Belchem 804, Hiranandini Post, Oragadam, Kancheepuram, on the grounds that, the Authorities in the Special Camp at Tiruchirapalli have not taken proper measures of spraying any disinfectant in the Camp and that, social distancing is not properly maintained there - counsel for Revenue submitted that Petitioners alone cannot be shown any indulgence by permitting them to reside in their respective residences, and in the event of granting the relief sought by the Petitioners, there is every possibility of other inmates knocking at the doors of this Court seeking similar relief, in which event, a different yardstick cannot be applied.

Held: After seeing the photographs sent by the counsel for the Petitioners through e-mail, pertaining to the present condition of the rooms in the Special Camp and the inmates staying there, this Court intended to ascertain the veracity of the same and accordingly, one S.N.Suthanthira Rajan, Special Deputy Collector was connected through WhatsApp Video call and he took this Court to the maximum areas of the Special Camp in Tiruchirapalli District - After watching the same, this Court is able to visualize that, the Special Camp is maintained neatly and there are no stains in the Toilets - When sufficient space is available in the Special Camp in Tiruchirapalli District to accommodate 80 persons and that, only 73 inmates are staying there, this Court is of the view that, photographs furnished by the Petitioners to the effect that, more number of persons are detained in a single room without any sign of social distancing, have been taken by the Petitioners only for the purpose of this case - By doing so, Petitioners are inviting diseases and none can be blamed for their act - The cluster in the room is the act of the inmates and not on account of the Respondents - It is pertinent to note that, none detained in the Special Camp in Tiruchirapalli District is infected with COVID-19 - If the Petitioners are released and sent out to live in the address mentioned in Kancheepuram District, and after a few days, assuming that, they are tested positive for COVID-19 on account of shifting them, then, the entire area in which they reside will be sealed, and chances of spreading the virus to other people residing in Kancheepuram District, will be high - Instead of eradicating the pandemic, the Court will directly be responsible for spreading the virus to innocent persons - When the Central and State Governments are taking effective steps to prevent further spread of COVID- 19, public, as responsible citizens must extend utmost co-operation to the Government in eradicating this pandemic and shall not try to disrupt the functioning of the Government - battle is between human beings and nature; unless human beings sail with the nature, nature alone will win the war - Finding justification in the plea made by the Government Pleader and considering the fact that, several Non-Bailable Warrants have already been issued to the Petitioners and that, there is every possibility of the Petitioners fleeing away from the clutches of Law, this Court while declining the relief sought by the Petitioners, without prejudice to the rights of the parties in the pending Habeas Corpus Petitions, directs the learned Additional Chief Metropolitan Magistrate (Economic Offences-I), Egmore, Chennai to take up the case in C.C.No.1 of 2020, after normalcy is restored post COVID-19 lockdown, and proceed with the same on a day-to-day basis, without adjourning it beyond ten working days at any point of time - Writ Petitions are dismissed: High Court [para 17, 18, 21, 23, 25, 27]

GST - Bench wishes to emphasize that, there are advantages in hearing cases through Whatsapp Video Call, and the fact remains that, it is less time-consuming, and it will be helpful to analyze the exact scenario of each case, so as to arrive at a definite conclusion, as was done in the case on hand - The system of viewing disputed sites through "Whatsapp Video Call or any other Application through Video mode" can be implemented in cases pertaining to encroachments on roads, water bodies, poramboke lands, Tanks, illegal constructions, OSR, Parks, etc. to ensure that, the Officials/Authorities discharge their work without any extraneous consideration: High Court [para 26]

- Petitions dismissed: MADRAS HIGH COURT

2020-TIOL-818-HC-AHM-GST

Azad Sahid Khan 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 4 to 6]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-817-HC-AHM-GST

Sanjaybhai Laxmanbhai Gogara Vs State Of Gujarat

GST - Writ-applicant availed the benefits of the orders passed by the Co-ordinate Bench of this Court, in accordance with law, and got the goods and vehicle released - This is a case in which the final order in Form GST-MOV-11 has been passed - In such circumstances, Bench relegates the writ-applicant to prefer an appeal, against such order, under Section 107 of the Act, 2017 - Writ Application disposed of: High Court [para 4 to 6]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-816-HC-AHM-GST

Power Palazzo Pvt Ltd Vs UoI

GST - TRAN-1 – Counsel appearing for the State respondent informed that the Nodal Officer has addressed a letter to the authority Incharge of the portal stating that the claim of the writ applicant to carry forward the Cenvat credit is justifiable and for that purpose, the portal be opened to enable the writ applicant to file his TRAN-1 - In view of such statement being made, no further adjudication of this writ application on merits is now necessary - Exercise is to be undertaken at the earliest and the same is to be completed within a period of two weeks – petition disposed of: High Court [para 4, 5]

Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-815-HC-AHM-GST

Kohitoor Transport Llp 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 4 to 6]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-814-HC-AHM-GST

Devasya Industries Vs State Of Gujarat

GST - Writ-applicant seeks to challenge the notice issued in the form GST MOV-10 for the confiscation of goods and conveyance with levy of penalty & fine under Section 130 of the Act - By virtue of the order of this Court dated 23rd May 2019, the truck as well as the goods have been released - So far as the notice in the form GST MOV-10 is concerned, the writ-applicant shall appear before the authority concerned and make good his case that the notice deserves to be discharged: High Court [para 3, 4]

- Petition disposed of: GUJARAT HIGH COURT

Lalith Corrugating Pvt Ltd Vs ACCT

Whether audit under the Tamil Nadu VAT Act can only be ordered by an officer of Commissioner rank & such proceedings initiated by Joint Commissioner are unsustainable, being contrary to the Act - YES: HC

- Writ petition allowed: MADRAS HIGH COURT

SERVICE TAX

2020-TIOL-582-CESTAT-KOL

Vedanta Ltd Vs CCGST & CE

ST - Benefit of Notification No.40/2012-ST can be availed in either way i.e. the service provider may not tax the amount or the service recipient being SEZ can claim refund - Mere technical discrepancy in the invoices cannot be a ground for denying substantive benefit of refund available to SEZ unit - It is the policy of the Government to exempt or refund the input tax incurred by the SEZ unit - Keeping the policy of the Government in mind and specifically in the light of section 7 and section 51 of the SEZ Act, 2005, denial of refund claim on this ground is not sustainable - re-conciliation of Service Tax payment with evidence of challans is satisfactory - If the service recipient is a SEZ unit, they should pay Service Tax to the service provider and claim the refund of the amount - In the case in hand, the fact that the appellant is SEZ unit is not disputed and the receipt of the services is also not disputed as also the payment of Service Tax to the service provider - In the absence of any adverse findings on these issues, appellant is eligible for claiming refund of the Service Tax paid by the service provider which is in consonance with the law - Impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 12 to 14]

- KOLKATA CESTAT

2020-TIOL-581-CESTAT-MUM

Heligo Charters Pvt Ltd Vs CST

ST - The assessee-company is engaged in contracting to provide transportation by helicopter to offshore locations of companies in the oil & gas industry, on time charter basis, inclusive of all charges - The dispute in the present appeal arises from the assessee's contract with M/s ONGC Ltd, which amongst other clients, required the provider to use its own Aviation Turbine Fuel (ATF) when at Mumbai or at offshore platforms with reimbursement of the actual spending at other locations - The Revenue resorted to valuation u/s 67 of the Finance Act 1994 requiring determination of non-monetary consideration for inclusion in the assessable value - Reliance was placed on Rule 5 of the Service Tax (Determination of Valuation) Rules, 2006 mandating all expenditure/costs incurred for providing the services to be includable in the consideration - For the period before 1.07.2012, the chartering company was discharging tax liability as provider of Supply of Tangible Goods service - SCN was issued proposing that in addition to fixed charges and flying hourly carges, about 3082360 litres of ATF had been consumed on 5973 & 34 minutes of flying which had been excluded from the assessable value and so would attract levy of service tax - Demand was raised u/s 73(1) along with interest u/s 75 of the Act - Penalty was also imposed u/s 78 of the Finance Act - Such proposals in the SCN were sustained on adjudication - Hence the present appeal.

Held - The dispute is limited to the inclusion of cost of fuel supplied or reimbursement for fuel, made by M/s ONGC Ltd with whom the assessee entered into an agreement for chartering of helicopters, in the taxable value of the service, that for a short period at the commencement of the dispute, was subject to levy of tax as SOTG service - It follows from the verdict of the Apex Court in Commissioner of Service Tax v. Bhayana Builders Pvt Ltd that the scope of exemptions cannot be perceived in isolation of the scope of the levy - The levy itself is limited to the service component of the transaction and the addition of goods/materials that have no bearing on the cost of service rendered is an exercise in superfluity - Hence there can be no room for doubt that the goods supplied by the recipient of the service without any charge and which, in consequence, does not find inclusion in the recompense for the taxable service is not includable for the purposes of assessment of tax on services - It was also held that the curative legislation effected from 14th May 2015 may, if at all, be applied only prospectively without going into the legality thereof - Besides, there is no allegation that the assessee was at any stage entitled to use the fuel for operation of other contracts on which higher amounts were charged - Hence the subject order is not sustainable and merits being set aside: CESTAT

- Assessee's appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE

Hercules Hoists Ltd Vs CCE & ST

CX - Appellant is a manufacturer of excisable goods namely Cranes, Hoists and Other Lifting Equipment and avail CENVAT credit - Appellant operates Windmill Plants installed at Dhule Site, which is almost 600 km away from the factory of manufacture of the dutiable final product - The electricity generated from the Windmill Plants are transmitted to the Maharashtra State Electricity Board (MSEB) at Dhule - The appellant did not avail any Cenvat Credit on the inputs and input services used exclusively within the Windmills Site, however, during the disputed period April 2010 to March 2016, the appellant had availed common input services such as professional services, tour operator service, chartered accountant service, telephone service, security service etc., in the factory of manufacture of the excisable goods as well as in the premises of generation of electricity - Taking of cenvat credit on the input services was disallowed by the department on the ground that the requirement of sub-rule (3) of Rule 6 of the CCR, 2004 have not been complied with - demand confirmed by lower authorities, hence appeal to CESTAT.

Held: Phrase "exempted goods" has been defined in Section 2(d) of CEA, 1944 to mean excisable goods which are exempt from the whole of the duty of excise leviable thereon, and includes goods which are chargeable to "Nil" rate of duty - On perusal of the description of goods mentioned in Chapter 27 in the CETA, 1985, it reveals that though electrical energy has been assigned with the Chapter sub-heading therein, but there is no corresponding rate of duty to such goods mentioned in the Tariff Act - Thus, electrical energy cannot be considered "Nil" rated goods - Further, the Central Government in exercise of the powers conferred u/s 5A has not specifically issued any notification, in exempting electrical energy from payment of Central Excise duty, hence, electrical energy cannot be categorized as exempted goods in terms Section 2(d) of the Act - hence, the provisions of Rule 6(3) of the CCR would not be applicable - no merits in the impugned order, hence same is set aside and appeal is allowed: CESTAT [para 5 to 7]

- Appeal allowed: MUMBAI CESTAT

2020-TIOL-579-CESTAT-DEL

Homecare Lifestyle Vs CCGST

CX - The assessee-company is engaged in manufacturing kitchen accessories under the brand name of Homecare which belongs to another entity - The assessee manufactured the goods and cleared them to one M/s Echelon Lifestyle Products Private Limited - Both entities shared a common director - As the assessee was not registered with the Department, it did not pay any Excise duty - Search was conducted at the premises of M/s Echelon Lifestyle Ltd., whereupon it failed to product any documentation to account for the procurement of goods and packing material lying in its premises, which also included those goods manufactured by the assessee - The premises of the assessee were also searched and panchnama was drawn stating that the assessee was also engaged in manufacturing modular kitchen of Homecare brand - The premises of one of a third entity were searched and panchnama was drawn stating that it was engaged in unpacking of goods purchased by it and adding one or two cut to size wooden panel and then repacking the same for clearance - It was also stated to be re-packing the goods under a different brand name - SCNs were served to all three companies proposing to raise duty demand along with penalty u/r 25 of CER on them and u/r 26 on their directors - The assessee paid the duty, with interest and penalty, whereupon the demand was treated as settled as per Section 11AC(1)(d) - Meanwhile, the penalty imposed u/r 25 and u/r 26 was confirmed and payment of redemption fine was also directed - Such order was sustained by the Commr.(A) - Hence the present appeal.

Held - It is seen that the dispute regarding the seizure portion and the alleged clandestine clearance stands settled, as is stated by the Revenue, pursuant to payment of duty, interest and penalty both for the alleged clearances and also for the goods found and seized - In such circumstances, the impugned order is non est in the eyes of law and so merits being set aside: CESTAT

- Assessee's appeals allowed: DELHI CESTAT

TII

TP - Determination of ALP by assessee from an angle different from that of Revenue is per se sufficient to invoke penal provisions under Explanation 7 to Section 271(1)(c), more so where assessee prepared TP report in good faith & due care & no surreptitious mechanism is used by assessee: ITAT

I-T - Tribunal extends stay on recovery of demand for further period of six months, considering that delay in disposal of appeal is not attributed to assessee & that balance of convenience is in its favor: ITAT

TIOL CORPLAWS

CCI - Without any adverse observation in investigation reports can petitioner be held guilty and made liable u/s 48: HC

Trade Marks Act - Defendant's mark PROVIDENT CENTRAL PARK is deceptively and confusingly similar to plaintiffs' trademark 'CENTRAL PARK' and illegally used in relation to identical services: HC