Marble Centre International Pvt Ltd Vs ACIT

Whether cash seized during search operations and which is later volunatarily offerred by the assessee as advance tax, is liable to be adjusted against pending tax dues - YES: HC

- Assessee's appeal allowed: KARNATAKA HIGH COURT

ITO Vs Satish Singh Bhati

Whether assessment order framed without assuming requisite jurisdiction & without serving necessary notices upon assessee, is sustainable - NO: ITAT

- Revenue's appeal dismissed: DELHI ITAT

Sushil Kumar Bhati Vs ITO

Whether it is settled position in law that a bona fide error on part of the assessee is per se insufficient grounds to invoke penalty proceedings, where such error is accepted & requisite amount is offered to tax - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

Addl.CIT Vs TV Today Network Ltd

Whether expenses incurred on purchase or upgradation of software can be treated as capital in nature, where no enduring benefit is seen to arise therefrom - NO: ITAT

Whether therefore disallowance of deduction on such expenses, on grounds that such expenditure is capital in nature, is sustainable - NO: ITAT

- Revenue's appeal dismissed: DELHI ITAT

Sanee Infrastructure Pvt Ltd Vs Pr.CIT

Whether power of revision is rightly exercised where original assessment order had issues such as high rate of TDS refund, low net profit for large gross receipts & mismatch in audit report & ITR in respect of amounts paid to related persons - YES: ITAT

- Assessee's appeal partly allowed: INDORE ITAT

Leprosy Mission Trust India

GST - Applicant is a Non-Governmental Organization (NGO), which, among others, administers a Vocational Training Institute at Bankura named Bill Edgar Memorial Vocational Training Centre (BEMVT) primarily for skill development of the underprivileged suffering from leprosy - Applicant's services to the students, faculty and staff with respect to the skill development courses for diesel mechanic, welder and sewing technology are recognized by National Council of Vocational Training - Applicant is, therefore, an ‘educational institution' imparting education as a part of an approved vocational education courses and the same is exempt under Entry 66 (a) of Notification 12/2017-Central Tax (Rate) dated 28/06/2017 as amended - Exemptions under entry 64 or 71 of the above notification are not applicable since applicant is not the Government or local authority and furthermore, the applicant has not provided any evidence that BEMVT is acting as a project implementation agency under the above scheme: AAR

- Application disposed of: AAR

2020-TIOL-148-AAR-GST

Swayam

GST - Applicant is a charitable trust registered u/s 12A of the Income Tax Act, 1961 and extends legal, medical, psychological and financial support to the women and their children surviving violence and abuse - The applicant also facilitates training programmes and workshops for the survivors - It wants to know whether it is liable to pay tax on its activities - applicant submits that it facilitates access of the women survivors to legal aids - For example, it accompanies the survivor to the police and the courts and liaises with the lawyers when required - Depending upon the financial circumstances of the survivor, it often provides support in the form of reimbursement of the court fee, lawyers' fee or medical expenses, including hospitalization or psychiatric counseling - Such financial support is also extended to paying the remuneration of the trainers and charges of the facilitators for trainings and workshops - applicant further submits that it does not charge anything on the survivors for the services it extends. the payments discussed being meted out from donations received and interest on deposits.

Held: The applicant is apparently assisting the women survivors in various ways to get back on their feet - Such survivors of sexual and other violence need services like legal aid, medical assistance, and vocational training - The recipient of such services is, therefore, not the applicant but the survivor woman - The applicant makes payments not to the supplier of the services, but as financial support in the form of reimbursement to the recipient survivor - It is, therefore, not liable to pay GST based on reverse charge mechanism on such payments - Moreover, the applicant does not charge any consideration for facilitating the legal aid and other assistance - Such activities of the applicant, therefore, does not result in 'supply' of service as defined under section 7(1) of the GST Act and hence the applicant is not, therefore, liable to pay tax thereon - To conclude, Applicant's activities do not amount to 'supply' of service, neither is it a recipient of the services for which it often provides financial assistance to the women survivors of sexual and other violence - The applicant is, therefore, not liable to pay GST on the activities described in the application: AAR

- Application disposed of: AAR

2020-TIOL-147-AAR-GST

IZ Kartex Named After P G Korobkov Ltd

GST - Applicant is the local branch of a Russian business entity by the same name ('Foreign Company'), which entered into a Maintenance and Repair Contract ("MARC") with Bharat Coking Coal Ltd ("BCCL") with respect to the machinery and equipment it had supplied - Applicant wants to know whether the Maintenance and Repair Contract makes the supplier liable to pay GST.

Held: MARC holder maintains suitable structures in terms of human and technical resources at the sites of BCCL - It ensures supervision of the equipment, supply of spares and consumable and overheads for 5000 annual working hours for seventeen years, indicating sufficient degree of permanence to the human and technical resources employed at the sites - The MARC Holder, therefore, supplies the service at the sites from fixed establishments as defined under section 2(7) of the IGST Act - The location of the supplier should, therefore, be in India in terms of section 2(15) of the IGST Act - Consequently, supply of the MARC Holder to BCCL is not, therefore import of service within the meaning of section 2(11) of the IGST Act - The MARC Holder should be treated as a supplier located in India triggering clause 9.2.2 of the MARC, and made liable to pay GST, the place of supply being determined in terms of section 12 (2) (a) of the IGST Act - The applicant, being the registered branch of the Foreign Company, should be treated as the domestic MARC Holder in terms of clause 9.2.2 of the MARC and be liable to pay tax accordingly - recipient is not, therefore, liable to pay GST on reverse charge basis in terms of Notification No. 10/2017- Integrated Tax (Rate) dated 28/06/2017: AAR

- Application disposed of: AAR

2020-TIOL-146-AAR-GST

Mansi Oils And Grains Pvt Ltd

GST - Sale of the assets of the applicant by NCLT appointed liquidator is a supply of goods by the liquidator, who is required to take registration u/s 24 of the GST Act - If she [Resolution professional, Smt. Rachna Jhunjhunwala appointed as liquidator by NCLT] is already registered as a distinct person of the corporate debtor in terms of Notification No. 11/2020-Central Tax dated 21/03/2020, she should continue to remain registered till her liability ceases under section 29(1)(c) of the GST Act - goods sold are plant and machineries, office equipment and furniture - They are broad categories classifiable under different HSN and taxable under appropriate Sl Nos of the Schedules under Notification No. 1/2017-CT (Rate) dated 28/06/2017: AAR

- Application disposed of: AAR

2020-TIOL-1106-HC-DEL-GST

Watermelon Management Services Pvt Ltd Vs CCT

GST - Petition has been filed challenging the impugned order dated 03rd June, 2020 passed by respondent No.1 whereby it has kept the provisional attachment orders dated 05th March, 2020 as well as corrigendum dated 01st June, 2020 alive after specifying that the reason for attachment was that proceeding under Section 67 of the CGST Act, 2017 was pending against the petitioner - However, the respondent No.1 accepted the fact that it should not conduct parallel investigation and accordingly, the respondent No.1 handed over its investigation to Directorate General of Goods and Services Tax Intelligence (DGGI) who had been investigating the matter since 05th December, 2018 - Petitioner points out that though the DGGI was investigating the matter since 05th December, 2018, yet he had never passed any attachment/freezing order against the petitioner; that since no proceeding had been launched under Section 74 of the CGST Act and the raid and search of the petitioner's premises had concluded on 04th and 05th March, 2020, the impugned provisional attachment order is without jurisdiction and illegal - Respondent states that the petitioner has maintained no record of transaction undertaken during the Financial Years 2017-18 and 2018-19; that the petitioner has not provided any evidence of genuineness of Input Tax Credit (ITC) availed by it and/or eight other companies; that the Directors of the petitioner have failed to comply with summons issued to them - During the hearing, Officer from the DGGI office stated that though fifteen summons had been issued to the Director of the petitioner, yet he had appeared only on three occasions and that too did not furnish the documents as asked for - petitioner states that documents in three tempos have been filed by the petitioner with the DGGI.

Held: Keeping in view the serious allegations that have been levelled against the petitioner by the officers of DGGI as well as by the Commissioner of CGST, Delhi (East), Court is of the view that ends of justice would be met if the DGGI is directed to conclude the investigation in the present case within a period of three months - if upon conclusion of investigation, DGGI is satisfied with the stand of the petitioner, then it shall close the proceeding and if not, issue an appropriate show cause notice in accordance with law - Petition is disposed of: High Court [para 8, 9]

- Petition disposed of: DELHI HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-932-CESTAT-CHD

Riba Textiles Ltd Vs CCE & ST

CX - Investigation was conducted against the appellant by DGCEI in the year of 2000 and at that time on 18.01.2000, the appellant paid Rs. 4 lakhs and thereafter as per the direction of this Tribunal while entertaining the stay application, again, Rs. 50 lakhs was paid by the appellant during the period 08.12.2007 to 29.02.2008 - Appeal was decided by the Tribunal in favour of appellant in the year 2015 - thereafter, appellant claimed refund of the amounts paid by them and the same was sanctioned on 02.06.2017 but the adjudicating authority did not consider the claim of interest of the appellant from the date of deposit till its realization - appellant is before the CESTAT.

Held: Tribunal has examined the issue in detail in the case of M/s Marshall Foundry & Engg. Pvt. Ltd. ( Final Order No. 61058-61062/2019 dt. 28.11.2019 and Corrigendum issued on dt. 02.12.2019), therefore, Bench holds that the appellant is entitled to claim the interest on delayed refund from the date of deposit till its realization - impugned order qua denial of interest is set aside and the appeal is allowed: CESTAT [para 6 to 8]

- Appeal allowed: CHANDIGARH CESTAT

Raghvendra Mishra Vs CCE

CX- Though the matter relates to the year 2013, stay petitions filed by the appellant have not been disposed of - demand of duty of Excise to the tune of Rs.6.57 crores approximately stands confirmed against Shri Mishra along with imposition of penalty of identical amount - further penalty of identical amount stands imposed on Shri Sharma - in terms of the provisions of section 35F of the CEA, the appellants are required to deposit 7.5% of the dues confirmed against them - the advocate of Shri Mishra submitted that his clients have no finance to deposit the amount in question even if some more time is given to them - he, accordingly, prayed that the appeals may be disposed of as not maintainable for non-compliance of section 35F - in view of the above submission of the advocate, the appeals are dismissed as not maintainable - Stay Petitions and Miscellaneous applications also get disposed of: CESTAT [para3 to 5]

- Appeals dismissed: ALLAHABAD CESTAT

CCE & ST Vs Vardan Petrochemicals Pvt Ltd

CX - The dispute is if the goods manufactured by assessee namely Vermax 002 and Vermax 004 are chargeable to Central Excise duty or not - The assessee was paying duty on said goods till 30/06/2006 - They stopped paying duty on such goods from 01/07/2006 and started availing exemption - The raw material used by them for the manufacture of aforesaid articles was co-mingled oil, which was classifiable under heading 2709 - A SCN was issued to assessee which sought to confirm the demand of duty without specifying the heading under which the said product Vermax 002 and Vermax 004 are classifiable - It is seen that the SCN does not exactly classify the product - It is seen from the orders of lower authorities that they have only examined why the product is not classifiable under chapter heading 2709 sought by assessee but none of them deal with the issue as to where the goods should have been classified or what should be a correct classification of goods - There is no allegation in SCN seeking to change the classification of goods and there are no findings to that effect - The assessee has relied on the decision of High court of Madras in case of Indian Oil Corporation 2017-TIOL-1094-HC-MAD-CX - The Revenue has failed to establish under which heading goods are classifiable - In these circumstances, merit found in the preliminary grounds of appeal: CESTAT

- Appeal allowed: AHEMEDABAD CESTAT

CUSTOMS

2020-TIOL-929-CESTAT-DEL

Navrattan Jewellers Vs CC

Cus - The assessee have imported certain quantities of fresh water pearls through foreign post office which were covered by parcels - The Department at the time of import of consignment of the pearls suspected under invoicing of goods and therefore representative samples were drawn and goods were allowed to be cleared on provisional assessment basis - The representative samples drawn by department were sent to authorized testing lab namely M/s Pangen Testing Laboratory - It has been the case of assessee that during the pendency of finalization of assessment of their import consignments of pearls there have been change of address of assessee firm from Johari Bazar to Sethi Colony, Jaipur - It's a matter of record that the order for finalization of assessment has also been issued ex-parte as the assessee have not responded to the letters which pertained to the intimation of personal hearing with regard to finalization of assessment - There were no reason for assessee to avoid attending the personal hearing and to defend their matter before the original Adjudicating Authority, however, because of the reason that the assessee have changed their business premises from Johari Bazar to Sethi Colony, Jaipur, the letter of personal hearing were not received by them and accordingly the order of final assessment dated 17 April 2015 had also not been served on them - Though the Department has been claiming that the order of finalization of assessment has been sent to the assessee at their previous address which has already been changed by assessee - Even if the order of final assessment has been sent by registered post to their Johari Bazar address, same cannot be considered as proper service of order as per the provision of Section 153 of Customs Act, 1962 - Since the assessee was not available at the given address, date of receipt of the order need to be taken as 25 July 2015 on which the order was actually been provided to the assessee and statutory time limit may be calculated from this date as provided under Section 128 of Customs Act, 1962 - Since the appeal has been filed well within 60 days, the Commissioner (A) has erred in not considering the date of receipt of order by assessee as the relevant date for calculating the period of 60 days and therefore no merit found in order of Commissioner (A) and therefore same is set aside - The appeal is remanded back to the Commissioner (A) for hearing the matter on merit: CESTAT

- Matter remanded: DELHI CESTAT

I-T - Any addition applying concept of income deemed to be accrued or arise in India can be made when situs of service rendered is abroad: ITAT

TP - Existence of legally valid draft order is mandatory pre-condition for passing of legally valid DRP proceedings, and legally valid final assessment order: ITAT

TIOL CORPLAWS

Competition Act - Swiggy can be said to have acted in contravention of Section 4(2)(a) by imposing unfair price on customers when not involved in fixing price of products/menus of restaurants on its platform: CCI

IBC - Secured Creditors have right to realize security interest under liquidation process without having requisite 60% value in Secured Interest: NCLAT