2020-TIOL-704-ITAT-DEL

Manjit Singh Sarin Vs ITO

Whether transfer of assessment is valid where the AO ignored the objections raised by the assessee to transfer of jurisdiction as per Section 127 of the Act - NO: ITAT

Whether assessment order passed by the AO is void, having being passed despite the AO not having the jurisdiction to do so - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-703-ITAT-INDORE

Sindh Punjab Mercantile Credit Sahkarita Ltd Vs ITO

Whether amendment brought in the Finance Act 2015 in clause (c),(d) & (e) of section 200A(1) are prospective in nature and therefore, fee u/s 234E cannot be levied in statement processed u/s 200A up to 31.05.2015 - YES : ITAT

- Assessee's appeal allowed: INDORE ITAT

2020-TIOL-702-ITAT-MAD

K Srikanth Vs ACIT

Whether processing of return u/s 143(1) cannot be termed as forming of an opinion & hence the AO can exercise jurisdiction of 147 even on the internal material which came to notice subsequently - YES: ITAT

Whether, while computing income under Income Tax Act, ramifications of the provisions of other laws have to be seen - YES: ITAT

Whether mere contention vis-a-vis receipt of some amount is enough to run away from tax provisions - NO: ITAT

Whether non-compete fee, prior to the introduction of section ( va ) 28 was taxable - NO: ITAT

- Assessee's appeal partly allowed: CHENNAI ITAT

2020-TIOL-701-ITAT-JAIPUR

Rama Handicrafts Vs DCIT

Whether assessee shall be liable to pay interest u/s 220(2) from the expiry of period mentioned in the original notice of demand and ending with the day when the same was paid – YES: ITAT

Whether where there is no basis for levy of interest u/s 234D and such levy is ultimately held to be not valid – YES : ITAT

Whether where no refund had been granted u/s 143(1) to the assessee, the question of charging of interest u/s 234D doesn't arise for consideration – YES : ITAT

- Assessee's appeal disposed off: JAIPUR ITAT

2020-TIOL-113-AAR-GST

Gubba Cold Storage Pvt Ltd

GST - Applicant is dealing in services which are in the nature of storage and warehousing of agricultural produce, food grains including pulses and rice etc. - they are renting or leasing of agro machinery or vacant land with or without structure incidental to its use in relation to agricultural produce and they are using leased premises for storage of agricultural produce which is exempted from GST and lessor is insisting to pay GST on lease charges and the lessee has denied to pay GST on lease charges where the lessee is using the premises for storage of agricultural produce only - applicant, therefore, seeks to know the tax implications in respect of the aforementioned activities.

Held: Above supply is taxable @18% except that the same is exempted if the supply of service is for storage or warehousing of ‘agriculture produce' as defined in clause 2(d) of 12/2017-CTR: AAR

- Application disposed of: AAR

2020-TIOL-112-AAR-GST

Penna Cement Industries Ltd

GST - Applicant is manufacturer of cement having two cement plants in Telangana - They occasionally made inter-state sale of cement on ex-factory/works basis from their plants in Telangana - when they make ex-factory sales from their plant, delivery terminates at their factory gate itself but the further movement is carried by recipient or transporter of goods up to the billing address State - inasmuch as in such cases, the delivery terminates in another State and, therefore, applicant is of the view that they should charge IGST in respect of such supplies - Applicant, therefore, seeks to know as to what tax should be charged on ex-factory inter-State supplies made by them.

Held: IGST is chargeable on ex-factory inter-state supplies since although the goods are made available by the supplier to the recipient at the factory gate, this is not the point where the movement terminates since the recipient subsequently assumes the charge for transportation of the goods up to the destination in another state - place (in the other State) where the goods are destined turns out to be ‘place of supply' in terms of section 10(1)(a) of the IGST Act - consequently, the ‘location of supplier' and the ‘place of supply' fall under different States and the supply qualifies as inter-State supply: AAR

- Application disposed of: AAR

2020-TIOL-111-AAR-GST

Sri Venkateshwara Agencies

GST - Applicant is a distributor of ‘SCOOPS' brand ice cream and ice cream products are supplied by them to sub-distributors, hotels, party orders and retail outlets - applicant has sought a ruling on the activities viz. ice cream and allied products, milk shakes served in the parlour with or without adding any ingredients like fruits or topping sauces; sold in the parlour as such i.e. in cups, cones, bars, sticks, novelties, 1/2 litre packs, party pack and bulk packs etc., party orders i.e. sale of bulk ice creams to caterers as take away; serving of ice cream with ingredients like fruits or topping as per guests requirements or taste; ice cream products of cups, cones, bars, sticks, novelties etc. sold to pushcart vendors who in turn sell it to their customers - Applicant contends that all these activities the ice cream/milk shakes are for human consumption with our without adding some ingredients and, therefore, the applicable rate of tax is 5% without ITC as per amending notification 46/2017-CTR.

Held: Parlour would fall within the term ‘eating joint' and supply of ice cream along with or without service activities would fall within the definition of ‘Restaurant service'; attract GST @5%, Sl. no. 7(ii) of 11/2017-CTR without ITC - Sale of bulk ice creams to caterers as takeaway (Party orders) does not involve any service and, therefore, is to be reckoned as supply of goods, hence 11/2017-CTR is not applicable - Supply/serving of ice creams with ingredients like fruits or topping as per guest requirements at customers premises is covered under Sl. no. 7(iv) of 11/2017-CTR and attracts @5% GST (from 15.11.2017 to 30.09.2019 under Sl. no. 7(v), GST @ 18%) - ice cream and allied products sold to pushcart vendors does not involve any element of service, hence 11/2017-CTR is inapplicable: AAR

- Application disposed of: AAR

2020-TIOL-103-SC-CT-LB

State Of Orissa Vs B Engineers And Builders Ltd

Whether a Circular seeking to deny reimbursement of sales tax paid by a contractor, merits being quashed, where it relies on perverse construction of plain terms of contracts, so as to enable the State to evade honoring its contractual obligations of reimbursing such duty - YES: SC LB

Whether sales tax in relation to execution of works contract, can be levied only on the taxable turnover and not the entire turnover & reimbursement can be claimed only of that duty which was levied & which was paid by a contractor - YES: SC LB

Whether interpretation of the phrase completed item of work as referring to end-products of a works contract, can be accepted for purpose of rejecting reimbursement of sales tax paid by a contractor - NO: SC LB

- Revenue's appeal dismissed: SUPREME COURT OF INDIA

2020-TIOL-999-HC-DEL-SERVICE

PR CCIT Vs Deepak

Service Matter - The petitioners filed the present petition filed to contest the transfer orders issued to them.

Held - The issue at hand is settled against the petitioners by the verdict in the case of Union of India & Ors. vs. Sh. Nitin & Ors. as well as by the verdict of the Supreme Court in Union of India & Ors. vs. Manglalzom Gangte & Ors. - Following such precedent cases, the present petitions merit being dismissed: HC

- Writ petitions dismissed: DELHI HIGH COURT

2020-TIOL-996-HC-ALL-VAT

Nathuram Bajaj Eit Bhatta Vs CCT

Whether order dismissing assessee's appeal on account of non-appearance, merits being quashed, where the mandate of Rule 63(5) of UPVAT Rules is not satisfied - YES: HC

- Applicant's revision petition allowed: ALLAHABAD HIGH COURT

2020-TIOL-833-CESTAT-HYD

Annavarapu Enterprises Vs CC, CE & ST

ST - Issue is regarding charging service tax on reimbursable expenses received by the service provider in terms of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 - This rule itself has been struck down by the Apex Court as ultra vires in the case of Intercontinental Consultants and Technocrats Pvt Ltd - 2018-TIOL-76-SC-ST and the issue is now finally settled that service tax can only be charged on the amount received for the services and not on the reimbursable expenses - Impugned order which is based on such demand is not sustainable and is set aside - Consequently, the demand of interest and penalties also do not survive - assessee's appeal is allowed and the revenue's appeal is rejected: CESTAT [para 7, 8]

- Assessee appeal allowed/Revenue appeal rejected: HYDERABAD CESTAT

2020-TIOL-832-CESTAT-DEL

Agrawal Metal Works Pvt Ltd Vs Commissioner, CGST

ST - Transportation of the goods manufactured by appellant was being arranged by their buyers – However, appellant had taken an open insurance policy for the said goods removed and the same was being reimbursed on pro rata basis by customers – ST paid on such insurance policy was being taken as credit by appellant and utilised for further payment of Service Tax on insurance cover given by them to customers – Revenue denied credit on the ground that the said service had no nexus with the manufacture of goods – appeal to CESTAT.

Held: Appellant informed that they had clarified during the course of adjudication that the the said insurance cover was not in connection with the manufacturing activity or removal of the goods from their factory but was a separate identifiable service undertaken by them vide which they were providing insurance cover to their buyers - Inasmuch as since they were paying service tax on the insurance cover given by them to their buyers, they were entitled to avail the service tax paid – It is seen that the lower authorities had not adverted to the aforesaid submissions which were placed before them – matter is, therefore, remanded: CESTAT [para 3]

- Matter remanded: DELHI CESTAT

2020-TIOL-1000-HC-MAD-CUS

Wadpack Pvt Ltd Vs ACC

Cus - The assessee is a manufacturer of corrugated carton boxes - It clears such boxes to a variety of customers and also supplies the same to SEZ units, which are deemed exports as per Chapter 8 of the FTP - The assessee was issued an Advance Authorization, for which it executed a bank guarantee from the Union Bank of India in favor of the jurisdictional Asst Commr. of Customs - Later, the assessee fulfilled its export obligation - Relevant documents were submitted to the DGFT - The assessee received a letter addressed by the Asst Commr to the Union Bank to encash the bank guarantee and remit the same by way of demand draft payable to the jurisdictional Commr. of Customs - Another letter was sent to the DGFT for issuance of EODC - The assessee filed writ petition seeking seeking a mandamum forbearing the Union Bank of India from making payment against the bank guarantee.

Held - It is seen that the remedy available to the assessee against the recovery proceedings lies before the competent jurisdictional authorities of Karnataka - Hence the recovery proceedings initiated by the assessee is to be kept in abeyance for four weeks' time - In such period, the assessee is directed to approach the relevant authorities, failing which the Revenue may proceed to take appropriate action: HC

- Writ petition disposed of: MADRAS HIGH COURT

2020-TIOL-829-CESTAT-BANG

Pointec Writing Instruments Pvt Ltd Vs CC

Cus - The assessee was issued Advance License for importing packing material viz., display boxes and corrugated boxes - They imported the goods as specified in Licence vide Bills of Entry dtd. 28.04.2003 and against Release Advice No. 2741 dtd. 9.9.2004 - The total duty foregone was Rs. 8,97,746/- for which the assessee executed the bond with the Deputy Commissioner - Thereafter a SCN was issued on the ground that the export obligation period has expired and the assessee have failed to produce evidence for discharge of export obligation even during the extended time given to them and therefore they have violated the conditions of the exemption Notfn 43/2002 - Assessee has fulfilled the export obligation and has also produced the written letter dated 01.07.2014 in respect of said Advance Licence which clearly proves that he has fulfilled the export obligation - Since the only ground on which the demand was confirmed was non-submission of EODC and the same has now been submitted by assessee showing that he has fulfilled the export obligation within the time - In view of this redemption letter dated 01.07.2014 produced on record, the impugned order is not sustainable in law and therefore the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT