ACIT Vs V K Gupta

Whether it is incumbent on the assessee to specify which particular document, seized during search operation, is required by him and further establish that non-receipt of that document prevented him from filing the return – YES : HC

Whether it would be necessary for the assessee to examine all material documents seized during the search and seizure operations before filing the return – YES : HC

- Writ petition disposed off: DELHI HIGH COURT

Renu Jain Vs ITO

Whether de-facto utilization of capital gain is enough and hence deduction u/s 54F cannot be denied belated return of Income Tax u/s 139(4) - YES : ITAT

- Assessee’s appeal allowed: JAIPUR ITAT

Piramal Enterprises Ltd Vs Addl.CIT

Whether provisions of capital gains get triggered simply on the receipt of earnest money irrespective of handing over of possession and execution of deed - NO: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

DCIT Vs Rajahmundry Expressway Ltd

Whether provisions of section 80-IA(13) debars a contractor from claiming deduction of section 80-IA - YES : ITAT

Whether right to collect annuity is valuable commercial right within the meaning of section 32(1)(ii) hence eligible for depreciation- YES : ITAT

Whether before invoking the provisions of section 40A(2)(b) it is incumbent on AO to demonstrate that the transaction with related parties were not at Arm’s length- YES : ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

Union Bank of India Vs Addl.CIT

Whether where there is reasonable cause for non deducting TDS by assessee bank, then the penalty levied for relevant AYs merits being set aside - YES: ITAT

- Assessee's appeal allowed: JAIPUR ITAT

2020-TIOL-1033-HC-KERALA-VAT

Kavan Healthcare Services Ltd Vs State Of Kerala

Whether further addition on account of lower sales warrants being made, other than the difference arrived at from the value disclosed and the sale conceded - NO: HC

- Revision petition partly allowed: KERALA HIGH COURT

2020-TIOL-114-SC-GST-LB

UoI Vs Chogori India Retail Ltd

GST - Petitioner assessee had approached High Court for a direction to the Respondent Revenue to allow the Petitioner to file form GST TRAN-1 online or accept the form manually to enable the Petitioner to avail of the transitional credit (TC) of Rs.1,74,71,030.67 - Petitioner had averred that it tried to file the TRAN-1 Form prior to the above deadline of 27th December, 2017 numerous times but the system displayed an error and it was unable to upload the form - High Court had issued a direction to the Respondent to either re-open the Portal to enable the Petitioner to file its TRAN-1 Form electronically failing which to permit it to file manually on or before 13th September, 2019 - Aggrieved, Revenue is in appeal before Supreme Court.

Held: After condoning delay, Supreme Court observed that it is not inclined to intefere in the special leave petition - Accordingly, SLP filed by Revenue is dismissed but the question of law is kept open: Supreme Court

- Petition dismissed : SUPREME COURT OF INDIA

2020-TIOL-1037-HC-DEL-GST

Mangla Hoist P Ltd Vs UoI

GST - Petitioner seeks directions to the respondents to open the Portal to enable it to file its claim of CENVAT tax credit as on 30th June, 2017, in Form TRAN-1; that despite the categorical order passed by the co-ordinate bench in Brand Equity Treaties Limited = 2020-TIOL-900-HC-DEL-GST, the respondents have not made compliances and the petitioner has been compelled to approach this court for seeking directions to the respondents to open the common portal to enable it to upload its claim in Form GST Trans-1 well before 30.06.2020 - The second relief in the present petition is for declaring Rule 117 of the CGST Rules, 2017 as ultra vires and quashing the same - counsel for Revenue submitted that the respondents have decided to challenge the judgment in Brand Equity Treaties Limited (supra) and are in the process of filing an appeal before the Supreme Court.

Held: Division Bench in Brand Equity Treaties Limited = 2020-TIOL-900-HC-DEL-GST, has held that the time limit of 90 days prescribed in Rule 117 of the CGST Rules is not mandatory but directory in nature; that the judgment is to be publicised by uploading it on the respondent's website and that all the Assessees, who were unable to upload Form/GST Trans-1, could do so on or before 30th June, 2020 - Admittedly, the judgment in Brand Equity Treaties Limited (supra), has not been stayed so far and, therefore, the respondents are under an obligation to abide by the directions issued therein by adequately publicising the said decision and uploading it on their website as also by opening its common portal to enable the petitioner and all similarly placed parties to upload Form GST Trans-1, for claiming CENVAT tax credit - The respondents are directed to ensure compliance of the captioned judgment by 19.06.2020, particularly since the cut of date fixed by the court in the said case is 30th June, 2020, which would leave only ten clear days for the petitioner and similarly placed assessees to take necessary steps - Petition disposed of: High Court [para 7, 8]

- Petition disposed of: DELHI HIGH COURT

2020-TIOL-1036-HC-AHM-GST

Remankhan Belin Vs State of Gujarat

GST - Petitioners have challenged the order dated 14.5.2020 passed under Section 130 of the GST Act in Form GST MOV-11 - predominant ground raised in the petition is that no opportunity of actual hearing was given.

Held: Impugned order dated 14.5.2020 smacks of vice of breach of principles of natural justice - Because of pandemic Corona Virus Covid-19, the petitioner could not remain present and/or preferred to stay safe because of Corona Virus Covid-19 and meanwhile, the impugned order is passed - It is an admitted position that the impugned order dated 14.5.2020 is passed without hearing the petitioner and only on the short ground, the impugned order dated 14.5.2020 is hereby quashed and set aside and the authorities concerned shall pass a fresh order on merits without being influenced by the order impugned after giving an opportunity of hearing to the petitioner - petitioner shall remain present for hearing on the date fixed by the authorities and the authorities shall inform the petitioner in advance - petition is allowed to the aforesaid extent: High Court [para 4, 5]

- Petition allowed : GUJARAT HIGH COURT

2020-TIOL-1035-HC-AHM-GST

SK Green Home Appliances Pvt Ltd Vs UoI

GST - Petition preferred under Article 226 of the Constitution seeking directions to the respondents to permit the petitioner to file revision of GST TRAN-1 electronically or manually and allow the credit of the Input Tax Credit (ITC) of Rs. 16,07,556/- for the goods held in stock - Petitioner claims that they had already filed GST TRAN 02 and claimed Rs.11,29,000/- as a credit - It is averred that by a bona fide misunderstanding of the Accountant who was under the impression that the petitioner was only entitled to 60% of the credit, GST TRAN 02 came to be filed - It is further submitted that the petitioner would be entitled to the entire amount of credit by filling GST TRAN 01, therefore, there remains differential amount of credit of Rs. 4,78,556/- - Petitioner urges that mere procedural mistake in filling of form GST TRAN 01 could not be held as a ground for precluding the petitioner to claim the right even under the existing provisions and they rely on the decision in M/s. Siddharth Enterprises 2019-TIOL-2068-HC-AHM-GST in support.

Held: Having noticed that the petitioner had already filled-in the form GST TRAN 02 and has taken credit worth of Rs. 11,29,000/- which is now sought to be changed to TRAN 01 giving reason of procedural mistake committed by an accountant of the petitioner, it would be apt for this court not to entertain this petition at this stage - Whether there is a procedural lapse and whether such filling of GST TRAN 01 is permissible, are the aspects to be gone into and decided by the competent authority, to which the petitioner has already addressed communication way back in August and September, 2019 - Let the department respond to the same as it is its bounden duty to either accept the request or to deny and it is only after the decision is rendered by the authorities, it will be open for the petitioner to take a further legal recourse in accordance with law - respondent Nos. 6 to 8 are directed to respond to the communication of the petitioner within four weeks from the date of receipt of this order – Petition disposed of: High Court [para 8 to 10]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-1034-HC-AHM-GST

SK Impex Vs UoI

GST - Petitioner seeks directions to the respondents to permit the petitioner to file revision of GST TRAN-1 electronically or manually and allow the credit of the Input Tax Credit (ITC) of Rs. 16,61,040/- for the goods held in stock - Petitioner claims that while filling GST TRAN 01, by mistake in table 7A amount was shown as 'Nil', instead of Rs. 16,61,040/- - It is averred that the same happened due to the bona fide mistake on part of the Accountant of the petitioner - Petitioner also submits that in this regard two communications have already been sent to Deputy State Tax Commissioner as well as State Tax Commissioner respectively on 2.8.2019 and 19.11.2019 but both these communications have not been replied to though much of time is elapsed; that the decision of this court of September, 2019 in Siddharth Enterprises 2019-TIOL-2068-HC-AHM-GST holding that mere procedural mistake in filling of form GST TRAN 01 could not be held as a ground for precluding the petitioner to claim the right even under the existing provisions would bind the authorities.

Held: While the case of the petitioner is that mistake committed was procedural, the court considers appropriate not to entertain the petition at this stage - Whether there is a procedural lapse or otherwise are the aspects to be gone into and decided by the competent authority, to which the petitioner has already addressed communication way back in August and September, 2019 - The authority of the respondent department has not decided to respond to the same so far and it is only after the decision is rendered by the authorities, it will be open for the petitioner to take a further legal recourse in accordance with law - While not entertaining this petition and not touching the merit part of the case of the petitioner, the respondent Nos. 6 to 8 are directed to respond to the communication of the petitioner within four weeks from the date of receipt of this order - Petition is disposed of: High Court [para 8 to 10]

- Petition disposed of: GUJARAT HIGH COURT

SERVICE TAX

2020-TIOL-877-CESTAT-CHD

Saluja Motors Pvt Ltd Vs CCE & ST

ST - The assessee is Authorised Service Station and providing "Business Auxiliary Service" - During audit, it was found that the assessee is providing prospective customers to HDFC Bank from their customers who are seeking car loans - For the said services, assessee is receiving commission from HDFC Bank which is taxable under category of "Business Auxiliary Service" - The issue involved in the matter is that during impugned period whether the assessee was required to pay service tax on net amount of services received by them or on the gross value of service tax received by them and for the SCN after 06.11.2006, the extended period of limitation is invokable - On going through CBEC Circular 87/05/2006-ST , it is found that on 06.11.2006, revenue has explained that the assessee was required to pay service tax on gross amount, and thereafter, on 16.11.2006, the SCN was issued whereas the assessee was filing their ST-3 Returns regularly and paying service tax thereon, in that circumstances, the extended period of limitation is not invokable - As the same view was taken by Tribunal in case of South City Motors Ltd 2011-TIOL-1792-CESTAT-DEL , therefore, the SCN issued by assessee is barred by limitation, hence, impugned demands are not sustainable as appeal succeeds on limitation: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

Penta Software Pvt Ltd Vs CCE & ST

ST - The assessees are exporter of services and filed refund claim on 12.09.2017 for the quarter of July, 2016 to September, 2016, wherein the first payment of export made by their recipients on 05.07.2016 and the last payment was received on 06.09.2016 - The said refund claim was rejected being time barred and in the case of QL2 Software (India) Pvt Ltd, refund claim was filed on 07.06.2017 for the quarter 01.04.2016 to 30.06.2016 wherein the last payment was received on 02.06.2016 - The same was also rejected as time barred - It is an admitted position that one refund claim is required to be filed for each quarter - Admittedly, in a case, where one refund claim is required to file in each quarter, therefore, the period of limitation is to be counted one year from the last date of said quarter is the date for filing the refund claim in terms of Section 11B of CEA, 1944 - In the notification on the one hand, it has been stated that one refund claim is to be filed quarterly and on the other hand, it is saying that within one year from the date of receiving of foreign convertible exchange, when a Notification is having ambiguity that the benefit of doubt goes in favour of assessee as held by Tribunal in case of M/s Mangalam Alloys Ltd. , wherein the Tribunal held that when there are two possible views in the notification itself, then benefit is given to the assessee - Admittedly, it is an admitted position that there is an ambiguity in notification, therefore, benefit of doubt goes in favour of assessee - Therefore, refund claims filed by the assessees are within one year from the last date of the quarter in each - No merit found in the impugned orders, same are set aside: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

CENTRAL EXCISE

2020-TIOL-875-CESTAT-DEL

Jaypee Sidhi Cement Plant Vs Commissioner Of CGST

CX - Revenue has objected to the admissibility of concessional rate of 1%/2% in respect of Additional Duty of Customs paid on the imported coal under S .No. 123 of Notification No. 12/2012-Cus dated 17.03.2012 by adverting to Sl. No. 67 of 12/2012-CX which allows the concessional rate only when no CENVAT credit is availed in respect of inputs/services used to manufacture the said excisable goods - demand confirmed with interest and penalty, hence appeal to CESTAT.

Held: Admittedly, the notification relied upon by the department for denying the impugned benefit to the appellant is Customs Notification No. 12/2012-Cus dated 17.3.2012 - The restriction of Rule 3 of CCR is not applicable to the said notification - Above all, the Supreme Court in the case of SRF Ltd. vs. CC Chennai] = 2015-TIOL-74-SC-CUS has held that Excise Notification No. 12/2012-CX is applicable only in respect of any digged or manufactured coal and not in respect of imported coal - adjudicating authority has committed a legal error while denying the benefit of reduced CVD on imported coal while placing reliance upon the Excise notification for manufacture of coal - impugned order is unsustainable, hence set aside - appeal allowed: CESTAT [para 8, 9]

- Appeal allowed: DELHI CESTAT

Naga Ltd Vs Commissioner of GST & CE

CX - Issue is whether the credit taken by the appellant who are job workers of M/s. Hindustan UniLever Ltd. (HUL), on the basis of Bills of Entry showing M/s. HUL as the importer is eligible or not.

Held: The department does not dispute that the appellant have used the inputs in the manufacture of final products and also the duty paid character of the documents - It is pertinent to note that HUL has given a separate declaration to the effect that the goods are to be sent directly to the appellant's premises and that credit would be taken by the appellant - Bench also observes that the provisions contained in Rule 9 of CCR does not make any requirement that the name of the person who is availing the credit has to be mandatorily mentioned therein - in view of the High Court decisions in Eupec Welspun Pipe - 2009-TIOL-777-HC-AHM-CX and Marmagoa Steel Ltd. - 2005-TIOL-239-HC-MUM-CX , credit is eligible to the appellant - impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 5, 6]

- Appeal allowed: CHENNAI CESTAT

CUSTOMS

2020-TIOL-873-CESTAT-CHD  

AT Maideen Vs CE & ST

Cus - Penalty - On the basis of specific intelligence that the container of goods exported by M/s D R Foods Limited to AL Hasila Trading contained contraband goods, the DRI called back the said container - On examination, the container was found to contain 537 logs of Red Sanders, which are prohibited for exports in terms of Foreign Trade Policy and CITES - Thereafter, these logs were seized - A SCN was issued to the concerned persons, proposing the confiscation of seized goods and for imposition of penalty on the persons concerned in illegal exportation of the said goods - It is quite evident that assessee have not been investigated in the case of present seizure and confiscation of red sanders - The statement that has been relied upon by Commissioner is also in case of some another investigation, seizure and confiscation - It is really irony that it has been admitted that even the true identity of the assessee has not been established in the present case and the Commissioner has imposed penalty even when the investigations against the assessee are still pending - It is also not understood as to how and on basis of which evidence linkage has been established between the assessee and present consignment of Red Sanders confiscated in the impugned order - Plain reading of Section 114(i) of Customs Act, 1962 shows that this section is applicable only in respect of the person who has done any act of omission or commission qua the goods held liable for confiscation under Section 113 - Any act performed by the person in respect of any other goods which may be similar/ same/ identical, but not the subject matter of the proceedings cannot be reason for imposition of penalty under this section - Thus, without leading the evidence to the effect of establishing the act of omission/ commission in relation to the goods confiscated in these proceedings, the penalty imposed under this section cannot be sustained - However, as number of person including the present assessee have not been investigated in this case and the investigation is kept open, the order setting aside the penalty herein should not be treated as exoneration of assessee in the proceedings which follow on completion of investigations against those persons: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

TII

TP - Tranfer Pricing provisions when read in light of UN Manual advocates selection of least complex party as tested party: ITAT

TP - It is settled position in law that transfer pricing adjustment cannot be made in respect of income computed u/s 115JB of I-T Act: ITAT

TIOL COPRLAWS

Arbitration & Conciliation - Issue has substantial urgency and huge commercial stakes are involved, reference to arbitration under Share Holders’ Agreement can be stayed for sometime: HC

Arbitration & Conciliation - Merely because petitioner has financial stringency and finds difficult to pay arbitrator's fee, it cannot be held that sole arbitrator has become de jure unable to perform her functions: HC