2020-TIOL-975-HC-P&H-IT

CIT Vs Adesh Foundation

On appeal, the High Court finds that the issues raised in the present case were settled in favor of the assessee in its own case for a past AY and so proceeds to dismiss the present appeal.

- Revenue's appeal dismissed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-974-HC-P&H-IT

PR CIT Vs Incite Homecare Pvt Ltd

Whether share capital can be deemed to be a bogus transaction where the assessee is able to secure the attendance of the financers as well as the directors of the investor companies - NO: HC

- Revenue's appeal dismissed: PUNJAB & HARYANA HIGH COURT

2020-TIOL-663-ITAT-DEL

Jindal Steel & Power Ltd Vs Pr.CIT

Whether revisionary order u/s 263 is barred by limitation, where it is passed in respect of an issue pertaining to the original assessment order which was later subjected to re-assessment - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

Addl.CIT Vs PNB Gilts Ltd

Whether when calculating disallowance u/s 14A, the AO is required to apportion part of expenses related to exempt dividend income and consider such part only - YES: ITAT

- Case remanded: DELHI ITAT

Dena Bank Vs Pr.CIT

Whether when the AO adopted one of the courses permissible in law, merely because the same resulted in the loss of revenue, such an assessment order can't be considered as order prejudicial to the interests of the Revenue - YES: ITAT 

- Assessee's appeal allowed: MUMBAI ITAT

ACIT Vs Dorma India Pvt Ltd

Whether goodwill being intangible asset within the meaning of section 32(2) is to be allowed depreciation - YES: ITAT

Whether after insertion of explanation 5 to section 32, depreciation is automatic de hors of any specific claim - YES: ITAT

- Revenue's appeal dismissed: CHENNAI ITAT

DCIT Vs H K Impex

Whether since liabilities continue to exist and reflected in books of accounts, there is no basis to bring same to tax u/s 41(1) - YES : ITAT

- Revenue's appeal dismissed: JAIPUR ITAT

Kisan Sahkari Chini Mills Ltd Vs CCT

Whether delay of over nine years in filing appeal can be condoned if sufficient reasons are put forth in the application for condonation of delay - YES: HC

- Revision petition allowed: ALLAHABAD HIGH COURT

SERVICE TAX

2020-TIOL-799-CESTAT-HYD

GE India Exports Pvt Ltd Vs CC, CE & ST

ST - Refund - Rule 5 of CCR, 2004 - Notification 5/2006-CX(NT) - Main reason for rejecting the refund is that the appellant has not established the nexus of the input services with that of the output services - appeal filed.

Held: A perusal of Rule 5 would show that it does not say that the appellant has to establish the nexus of the input services with the output services - The appellant has provided details of various services that were used during the relevant period for providing output services - Major part of the refund is for the period prior 01.04.2011 and a small amount of refund is for period after 01.04.2011 - It is also submitted by appellant that they have not availed credit on services excluded from the definition of 'input services' after 01.04.2011 - In the case of mPORTAL India Wireless Solutions Pvt. Ltd. as well as KPIT Cummins Infosystems Ltd. - 2013-TIOL-931-CESTAT-MUM , it was held that refund cannot be rejected on the ground that ITSS services were not taxable prior to 2008 - It also needs mention that though the refund claim was rejected on the ground that prior to 2008, the output services are not taxable and, therefore, credit is not eligible, no show cause notice is so far issued proposing to recover any wrongly availed credit - impugned order rejecting refund claims is set aside - appeal allowed: CESTAT [para 5, 6]

- Appeal allowed: HYDERABAD CESTAT

United Rail Road Consultants Pvt Ltd Vs CC, CE & ST

ST - Short point which falls for consideration is whether providing railway siding for non-govt companies by the appellant is taxable under the works contract service or otherwise - it is the case of the department that the exclusion under Section 65(105)(zzzza) in respect of “railways” is meant for the Indian railways themselves and does not extend to those cases where railway siding etc. is made for a private company.

Held: Issue is no longer res integra and an identical case was decided by the Bench in the case of KVR Rail Infra Projects Pvt Ltd - 2019-TIOL-2182-CESTAT-HYD - It is held that Section 65(25b) or Section 65(105)(zzzza) of the Finance Act, 1994 does not use the word 'railways' for public carriage or that the railways should be government railways; the definition uses the words "railways" only - Therefore, the exclusion cannot be restricted to the government railways which are used for public transport of passengers or goods - this decision has not been over-turned by any superior judicial forum and Bench does not find any reason to deviate from its earlier decision (supra) that the word "railways" in the section does not confine it to public railways or Govt railways - impugned order is set aside and appeal is allowed: CESTAT [para 2]

- Appeal allowed: HYDERABAD CESTAT

CENTRAL EXCISE

2020-TIOL-797-CESTAT-MAD

MRF Ltd Vs Commissioner of GST & CE

CX - This appeal is filed by assessee against impugned order whereby the Commissioner (A) has upheld the denial of CENVAT Credit - The assessee referred to the Order of this Bench for the period March 2005 to January 2006, wherein this Bench has inter alia held in favour of assessee after recording the facts that the assessee during the course of manufacture of 'pneumatic tyres' availed the credit of duty paid on inputs and capital goods and Service Tax paid on input services and had paid Service Tax through debit in their CENVAT Account of inputs and capital goods as they were the persons liable to pay the same on GTA Services which was taken as input service credit; the SCN and Adjudication Order were considered and finally it was held that the assessee was entitled to utilize the credit of tax paid on input GTA Services availed by them for payment of Service Tax - The impugned order has once again raised the same demand which has already been settled in favour of the assessee - The only proper course would have been to challenge the same further rather than knocking at the back door, which is not permissible - Therefore, the impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

Chiranjivi Industres Pvt Ltd Vs CCT

CX - None appeared for the appellant on the hearing date - AR informed the Bench that it is learnt that the appellant has opted for Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 but has not submitted any papers to the Registry.

Held: Considering the factual scenario, the appeal is dismissed for non-prosecution: CESTAT [para 3, 4]

- Appeal dismissed: HYDERABAD CESTAT

N Ranga Rao And Sons Pvt Ltd Vs CC, CE & ST

CX - In both the appeals, 14 periodic SCNs were disposed of by the Commissioner by confirming the demand along with interest and penalties - Appellants are the manufacturers of Agarbathi by the process of mixing of odoriferous compound of various fragrances as per this proprietary formula and sprinkling the same on raw Agarbathis - Agarbathis is classifiable under Tariff Item No. 3307 4900 of CETA and is chargeable to 'NIL' duty - Agarbathi Masala is mixed and captively consumed by the appellant for applying on to Agarbathi and is prepared based on proprietary formula which is a trade secret - Further, the appellant does not market the Agarbathi Masala - CBEC Circular No. 495/61/99-CX-3 dated 22.11.99 clarifies that "odoriferous compound used for manufacture of Agarbathi is not excisable" - Further, the said Circular referred to two processes of manufacture of Agarbathi (a) by mixing the Agarbathi Masala with dough and rolling it into Agarbathi, (b) by sprinkling on raw Agarbathi - In the present case, the Respondent has held that the Circular is inapplicable to the appellant's case as the Agarbathi Masala mixed by the appellant is marketable and hence excisable - Further, by its subsequent Circular No. 989/13/2014-CX.3 dated 7.11.2014, the Board clarified that the marketability, if any, has to be determined based on evidence - Further, the impugned order in Appeal No. E/20221/2017 has been passed on ex-parte - Also, when the Commissioner rejected the application seeking cross-examination of certain witnesses relied upon by the Respondent, the appellant filed appeal and Tribunal vide its Final Order No. 21138/2016 dated 01.12.2016 allowed the cross-examination of witnesses which were relied upon by the Revenue but the impugned order was passed before the Tribunal allowed the cross-examination to the appellant without affording any opportunity of hearing to the appellant - Further, Bench finds that in the impugned order, the Original Authority has held that the appellant is entitled to CENVAT credit of duty paid on the inputs used in the preparation of Agarbathi Masala but the said CENVAT credit has not been calculated and the benefit of the same has not been given while confirming the duty demand on the appellant - So also, the method of determination of value of Agarbathi Masala by the Department has not excluded the duty paid on the inputs used for the preparation of Agarbathi Masala which is contrary to CAS-4 standard and the decision of Hon'ble Supreme Court in the case of Dai Ichi Karkaria Ltd. 2002-TIOL-79-SC-CX-LB - both these cases needs to be remanded back to the Original Authority to decide de novo after affording an opportunity of cross-examination of the witnesses relied upon by the Respondent: CESTAT [para 6, 7]

- Matter remanded: BANGALORE CESTAT

CUSTOMS

Indian Agro And Recycled Paper Mills Association Vs CBIC

Cus - In view of the order dated 22.05.2020 passed by this Court in WP(C) 3029/2020 titled M/s Polytech Trade Foundation vs. Union of India & Ors - 2020-TIOL-959-HC-DEL-CUS, as far as the Container Freight Stations (CFSs) and Inland Container Depots (ICDs) in minor ports are concerned, the petitioner, without prejudice to their rights and contentions and subject to the outcome of the present petition, shall be at liberty to have their containers released on payment of such charges as may be demanded by such CFSs/ICDs - Matter to be listed on 23rd July, 2020 alongwith WP(C) 3029/2020 titled M/s Polytech Trade Foundation vs. Union of India & Ors : High Court [para 6, 8]

- Matter listed: DELHI HIGH COURT

2020-TIOL-976-HC-DEL-CUS

Unicharm India Pvt Ltd Vs UoI

Cus - In view of the order dated 22.05.2020 passed by this Court in WP(C) 3029/2020 titled M/s Polytech Trade Foundation vs. Union of India & Ors - 2020-TIOL-959-HC-DEL-CUS, as far as the Container Freight Stations (CFSs) and Inland Container Depots (ICDs) in minor ports are concerned, the petitioner, without prejudice to their rights and contentions and subject to the outcome of the present petition, shall be at liberty to have their containers released on payment of such charges as may be demanded by such CFSs/ICDs - Matter to be listed on 23rd July, 2020 alongwith WP(C) 3029/2020 titled M/s Polytech Trade Foundation vs. Union of India & Ors : High Court [para 6, 8]

- Matter listed: DELHI HIGH COURT

2020-TIOL-794-CESTAT-BANG

MO John And Sons Vs CC

Cus - The assessee is engaged in manufacture and marketing of various food products - The prohibited items are being exported but the same was intercepted - The only defense of assessee was that export was done by the Marketing Manager without his knowledge and consent and he had not given any instruction to his Marketing staff to export the prohibited items - This defense does not inspire confidence - Further, the penalty imposed is also not very exorbitant and therefore, no infirmity found in the impugned order which is upheld: CESTAT

- Appeal dismissed: BANGALORE CESTAT

TII

TP - It is undisputed that royalty is paid for business purposes, such expenditure can be disallowed solely because it failed to generate any economic value for the assessee's business: ITAT

TP - Non-existent entity can be subjected to assessment proceedings: ITAT

TIOL CORPLAWS

Indian Contract Act - There is any standard rule on exemption from payment of rent or suspension of rent during COVID-19 lockdown crisis: HC

Arbitration and Conciliation - If district court at Nashik not having any jurisdiction in matter, not being a 'court' within meaning of Section 2(1)(e), application originally made to it by Applicant u/s 9 does not have effect of restricting future jurisdiction over arbitral proceedings in matter of present Court: HC