Arihant Technology Pvt Ltd Vs PR CIT

Whether power of revision is to be exercised where the AO conducted thorough enquiry into the issue at hand during original assessment proceedings as well as during re-assessment proceedings - NO: ITAT

- Assessee's appeal allowed: DELHI ITAT

ACIT Vs AB Pal Electrical Pvt Ltd

Whether payment of commission at 0.5% of the total turnover of the company can be disallowed, considering the peculiar nature of the business and if it is undoubted that the recipients have served the payer-company - NO: ITAT

- Assessee's appeal dismissed: DELHI ITAT

Vinay Toshniwal Huf Vs DCIT

Whether tenancy right is a transferable asset and assessee has proved that he was in possession of it for more than three year and on sale of tenancy right, he is entitled for LTCG - YES : ITAT

Whether based on corroborative evidence being rent receipt of tenanted premises, registered transfer deed of tenancy and receipt of consideration for transfer of tenancy right by assessee, it can be concluded that property belong to assessee - YES : ITAT

- Assessee's appeal allowed: MUMBAI ITAT

Rajkham Builders Pvt Ltd Vs ITO

Whether pooja expenses and payments made to a contractor can be allowed u/s 37 where they are shown to have been incurred wholly & exclusively for business purposes - YES: ITAT

- Assessee's appeal partly allowed: CHENNAI ITAT

Bhagwatiben Vinodkumar Surani Vs ITO

Whether addition u/s 68 for unexplained cash credits can be made if investee is a penny stock company, with no credentials, and sale rates artificially hiked, with no real buyers - YES: ITAT

- Assessee's appeal dismissed: AHMEDABAD ITAT

2020-TIOL-881-HC-AP-CT

ACC Ltd Vs ACCT

Sales Tax - Andhra Pradesh General Sales Tax Act, 1957 - Section 64(1) of the Negotiable Instruments Act, 1881 makes presentation of a bill of exchange (like a demand draft) to the drawee, equivalent to payment - in other words, handing over payment by demand draft tantamount to payment in cash and discharges petitioner of its obligations - presentation of demand draft and its encashment is the exclusive responsibility of the respondents and the petitioner has nothing to do with it and the respondents cannot take advantage of any lapse, if any, in presenting the two demand drafts to the bank for realisation - Once the respondents admit the receipt of both the demand drafts dated 31.05.1998 from the petitioner for the sum of Rs.28,10,432/-, payment by the petitioner is deemed to be complete and the petitioner is absolved of its obligations and the withholding of the refund by the respondents on the alleged ground that the challans are not traceable in Sub Treasury of deposit of the Demand drafts by the Commercial Tax department, after receipt of the demand drafts i.e. cross verification is not possible cannot be a valid reason at all to withhold the refund of the said sum to the petitioner - action of respondents is also violative of Articles 14, 19, 265, 300A of the Constitution - respondents cannot be permitted to take advantage of their own negligence assuming that the demand drafts handed over by the petitioner were not presented and encashed by the respondents - in the instant case, the respondents had withheld the refund for eleven years on ground of ‘want of cross-verification details' which is not a ground mentioned in section 33-C for withholding the refund due to the petitioner - admittedly, no proceeding such as an appeal or revision was pending against the petitioner, so section 33F(2) of the APGST Act is also inapplicable - so also, a refund withholding order must invariably specify (as per section 33C) the period of time during which it will be in force and a refund cannot be withheld indefinitely as has been done in the instant case - Sections 33E and 33F give six months time to the respondents to complete the verification and the authorities cannot withhold the refund beyond the said period - There has been an ex-facie abuse of power by the respondents in denying the refund to the petitioners - Writ petition is allowed with costs of Rs.25,000/- to be paid by the 5th respondent to the petitioner - A Writ of Mandamus is issued declaring that the impugned order dated 05.05.2009 of the second respondent withholding the refund is arbitrary, illegal and without jurisdiction; said order is set aside - respondents are directed to refund the said amount with interest @12% p.a. from 2.8.1993 to 22.1.2004 as per Section 33F of the Act and also @12% p.a from 05.11.2009 till date as per Section 33F of the Act: High Court [25, 29, 30, 43 to 48]

- Petition allowed: ANDHRA PRADESH HIGH COURT

2020-TIOL-654-CESTAT-MAD

Visionary Rcm Infotech India Pvt Ltd Vs CGST & CE

2020-TIOL-880-HC-AHM-CX

CCGST & CE Vs Welspun India Ltd

CX - The issues involved in the present appeal filed by the Revenue are as to whether the assessee-company is eligible for benefit of the Exemption Notification No 39/2001-CCE in respect of goods that were manufactured using plant and machinery installed after cut off date of 31.12.2005 - Another issue is as to whether the expansion of the unit after the cut off date would restrict the appellant from availing benefit of such exemption notification and whether extended period of limitation could be invoked in the present case.

Held - A similar issue was resolved vide the judgment in Tax Appeal No.666 of 2019 wherein it was held that the applicability of a notification had direct bearing on the determination of the rate of duty for purpose of assessment - Hence as per the provisions of Section 35G r/w Section 35L of the CEA 1944, the present appeal is not maintainable before the High Court and the assessee has the remedy of filing appeal to the Supreme Court: HC

- Revenue's appeal dismissed: GUJARAT HIGH COURT

2020-TIOL-879-HC-AHM-CX

CCE & ST Vs Reliance Industries Ltd

CX - The assessee-company is engaged in manufacture of both dutiable goods namely, Motor Spirit, High Speed Diesel, Liquefied Petroleum Gas, Petrochemical and exempted goods namely, SKO for PDS and LPG for PDS - The limited issue to be decided is that for the purpose of calculating Cenvat credit for reversal in terms of Rule 6(3A), whether the total Cenvat credit means it is including the Cenvat credit of input services exclusively used for dutiable product should be taken or total Cenvat credit of only common input service should be taken - If the whole Rule 6(1)(2)(3) is read harmoniously and conjointly, it is clear that "Total Cenvat Credit" for the purpose of formula under Rule 6(3A) is only total Cenvat credit of common input service and will not include the Cenvat credit on input/ input service exclusively used for manufacture of dutiable goods - If the interpretation of Revenue is accepted, then the Cenvat credit of part of input service even though used in manufacture of dutiable goods, shall stand disallowed, which is not provided under any of the Rule of CCR, 2004 - When anomaly was noticed, the Government has substituted the sub-rule (3A) - The legislators very consciously substituted the Rule with intention to give a clarificatory nature to the provision of sub-rule (3A) so as to make it applicable retrospectively - It was all along not the intention of Government to deny Cenvat credit on the input/ input service even though used in the dutiable goods - Keeping the said view in mind, the substitution in sub Rule (3A) of Rule 6 was made - Therefore, the substituted provision of sub-Rule (3A) shall have retrospective effect being clarificatory - As regards jurisdiction, since now in GST regime, there is only one registration for a State and all the units within that State are covered under one registration, the Board has issued Circular 1056/05/2017-CX, which is especially meant for LTUs in the GST regime - In view of clarification which is categorically for the LTUs, the refund claims, even though pertaining to different units, the common jurisdiction lies where the assessee has registration for their principal business location - Therefore, assessee have rightly filed the appeal before Commissioner (A) Rajkot who has the correct jurisdiction over the principal business location of the assessee - Accordingly, the objection raised by Revenue as regards jurisdiction, is not sustainable - Hence the Tribunal sustained the subject orders.

Held - The Revenue's appeal is admitted in respect of the issues as to whether the Tribunal rightly held that the Notfn No 13/2016-CE(NT) dated 01.03.2016 which amended the provisions of Rule 6 of the CCR 2004, would have retrospective effect and as to whether the Tribunal correctly held that the amendment to Rule 6(3A) by Notfn No 13/2016-CE(NT) is clarificatory in nature - The matter be heard along with Tax Appeal No.849 of 2019 and Tax Appeal No.850 of 2019 on 13.02.2020: HC

- Notice issued: GUJARAT HIGH COURT

2020-TIOL-653-CESTAT-AHM

Pidilite Industries Ltd Vs CCE & ST

2020-TIOL-652-CESTAT-ALL

Panasonic Avc Networks India Company Ltd Vs CCE

Cus - In the present case, the silver granules were found in carton boxes on which there was specific mention of the name of foreign manufacturer, lot nos., the date of manufacture etc. - Thus, it can be seen that the markings on the boxes clearly indicated the silver granules was of foreign origin - The burden, therefore, shifts on to the appellant to show how the markings do not relate to the silver contained inside the boxes - facts would sufficiently prove that the case set up by the appellant that the carton boxes were purchased from roadside to be false and unacceptable - appellant has not been able to establish that the goods were licitly imported into India - In such circumstances, confiscation of goods and penalties imposed are legal and proper - no ground to interfere with the impugned order - appeal dismissed: CESTAT [para 6, 7, 7.1]

- Appeal dismissed: CHENNAI CESTAT

Cus - First set of the documents filed by the appellant was inadvertently wrong set which was generated on account of computer and software malfunctioning - It is also on record that appellant, on being pointed out by the CHA, immediately placed the correct document before Customs Authority on the same very date - In such set of circumstances, no mala fide can be attributed to the assessee so as to confiscate the export consignment or to impose penalty upon them - It also needs mention that the second set of documents filed by the appellants correctly covered all the aspects of the export consignment including the quantity, quality description and value etc. - As such, confiscation of the goods was not called for: CESTAT [para 5]

Cus - Drawback - Commissioner has gone by the market inquiries which fact by itself cannot be held to be sufficient to reject the value of the exported goods - appellant has placed on record BRC's indicating and evidencing the total realization of the exported goods and which fact has not been disputed by the Adjudicating Authority - In this scenario, value of the goods cannot be doubted and the declared value has to be accepted - drawback claim would be calculated at the declared value and the appellant would be entitled to the same - impugned order set aside and all three appeals allowed with consequential relief: CESTAT [para 6]

- Appeals allowed: ALLAHABAD CESTAT