Addlife Investments Pvt Ltd Vs DCIT

Whether for the purposes of computing the total income, no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income – YES : ITAT

Whether the term used u/s 14A that amount of expenditure incurred in relation to such income implies that the expenditure cannot exceed the amount of exempted income – YES : ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

Accura Enterprises Pvt Ltd Vs DCIT

Whether appellate authority can uphold the additions based on assumptions & without disproving the relevant material submitted by the assessee – NO : ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

DCIT Vs Telesonic Network Ltd

Whether penalty notice is bad in law if it does not specify as to under which part of Section 271(1)(c), between concealment of income or furnishing inaccurate particulars thereof, have penalty proceedings had been initiated - YES: ITAT

- Revenue's appeal dismissed: DELHI ITAT

All Rajasthan State Bank Of Bikaner And Jaipur Employees Association Vs ITO

Whether the appellate court can accept documentary evidence which was not submitted by the assessee before lower court – YES : ITAT

Whether ex parte order should be set aside if assessee submits valid reasons and documentary evidence to explain non-appearance on date of hearing – YES : ITAT

- Assessee's appeal allowed: JAIPUR ITAT

Sameer Gupta Vs Pr.CIT

Whether assumption of revisionary powers u/s 263 is warranted where the AO is found to have conducted adequate enquiry into the relevant issues at hand & if assessment order is neither erroneous nor prejudicial to Revenue's interest - NO: ITAT

- Assessee's appeal allowed: INDORE ITAT

KM Tiles Vs State Tax Officer

GST - Respondent has recognized that the petitioner is entitled for a refund of excess amount of Rs.13,38,958/-, which was sought to be denied vide the impugned order as transitional credit - Petitioner submits that since the transitional credit, which has been now allowed by way of refund has already been adjusted by the petitioner, the respondent may be directed to give credit and adjust the same as otherwise they may take steps to demand interest under Section 50 of the said Act.

Held: Question of payment of interest by the petitioner under Section 50 of the said Act, does not arise as the said amount is sought to be refunded - the writ petition is, therefore, liable to be closed - petition is disposed of: High Court [para 5]

- Petition disposed of : MADRAS HIGH COURT

2020-TIOL-36-AAAR-GST

JVS Foods Pvt Ltd

GST - AAR had held that Fortified rice kernels (FRK) manufactured and supplied by applicant is classifiable under HSN 1904 9000 and attracts GST @18% - while holding so, contention of the applicant that the impugned goods are classifiable under Tariff Item 1006 1090 as Rice-Others and attract GST @ 0%/5% was rejected - appeal filed.

Held: Appellate authority notes that FRK manufactured by the appellant does not have essential character of natural Rice and also does not merit classification under chapter 10 [Rice-Others] in terms of chapter note 1(A) of the said chapter; that FRK is appropriately classifiable under CSH 1904 9000 - there is an admission of fact by the appellant that FRK is a product different from the traditional rice and is to be used for blending in traditional rice - Appeal rejected: AAAR

- Appeal rejected: AAAR

2020-TIOL-1118-HC-AHM-GST

Mahavir Enterprise Vs ACST

GST - It is the case of the department that the writ applicant is involved in bogus billing transactions without any physical movement of the goods -Writ application filed praying to declare the Rule 142(1)(a) of CGST/GGST Rules, being ultra vires and dehors the Act and violative of Articles 14 and 19(1)(g) of the Constitution of India, to the extent it says notice issued under section 122 - Writ applicant seeks to challenge the legality and validity of the show cause notice dated 30th November 2019 issued by the respondent No.1 under Section 122(1) of the Act calling upon the writ applicant to show cause why an amount of Rs.6,87,68,821/- should not be recovered for the alleged contravention of the provisions of the Act and the Rules.

Held: SCN is yet to be adjudicated - It also needs to be stated at this stage that there is also a challenge to the constitutional validity of Rule 142(1)(a) of the CGST Rules on the ground that the same travels beyond the provisions of the Act and is a result of excessive delegation of powers -Bench does not propose to enter into the merits of the allegations levelled against the writ applicant as regards bogus billing transactions without there being any physical movement of the goods as the matter is at the stage of a show cause notice - Bench only proposes to consider whether the impugned show cause could be termed as per se without jurisdiction and a nullity and the validity of Rule 142(1)(a) of the Rules - Insofar as scope of judicial review, against the show cause notice, is concerned, in the case of Standard Chartered Bank and others vs. Directorate of Enforcement and others = 2006-TIOL-16-SC-FERA-LB , it is held that ordinarily the Court should be reluctant to interfere with the show cause notice unless the notice is shown to have been issued apparently without any authority of law - High Court can interfere under Article 226 of the Constitution of India against a show cause notice where the same is issued by an authority in exercise of the power which is absent; the facts does not lead to commission of any offence; the show cause notice is otherwise without jurisdiction; it suffers from incurable infirmity; against the settled judicial decisions or the decisions of the Tribunal and bereft of material particulars justifying commission of offence - A rule under delegated legislation can be held to be ultra vires the statutory provisions of the Act if it is shown (i) that it is beyond the scope of or in excess of the rulemaking power of the delegate conferred under the Act, or (ii) that it is in conflict with or repugnant to any enactment in the Act - It may be noted that Section 164 of the Act confers power on the Central Government to frame the rules - Under Section 164 of the Act, the Central Government has the power to make rules generally to carry out all or any of the purposes of the Act - In the opinion of the Bench, Rule 142(1)(a) of the Rules, 2017 is valid and is in no manner conflict with any of the provisions of the Act - The challenge to the legality and validity of the show cause should fail having regard to the scope of judicial review and the challenge to the validity of Rule 142(1)(a) of the Rules should also fail - Writ application fails and is hereby rejected: High Court [para 19, 20, 22, 25, 28 to 31]

- Application rejected: GUJARAT HIGH COURT

2020-TIOL-1117-HC-AHM-GST

Shri Durga Traders Vs STO

GST - Petition filed seeking issuance of writ of mandamus directing respondent No.01 to immediately release conveyance / vehicle bearing No.MP 69 H 0130 along with the goods i.e. groundnuts loaded in the same - It appears that on 4th June 2020, the writ applicant herein came to be served with a notice for confiscation of goods as well as the conveyance in form GST MOV-10 and date of hearing of the show cause notice issued in form GST MOV-10 has been fixed today i.e. on 19th June 2020.

Held: Bench does not propose to go into the merits of the matter as it is of the view that the authority concerned should be allowed to continue with the adjudication of the show cause notice issued under Section 130 of the Act - However, as the goods being groundnuts are perishable in nature, Bench directs the writ applicant to deposit an amount of Rs.54,000/- towards tax and penalty and the balance amount of Rs.5,67,000/- shall be by way of a bank guarantee of any nationalized bank; that on deposit of Rs.54,000/- and furnishing of the bank guarantee of the balance amount, the authority concerned shall immediately release the goods as well as the conveyance - confiscation proceedings shall proceed further on its own merits in accordance with law - writ application stands disposed of: High Court [para 5, 6]

- Petition disposed of: GUJARAT HIGH COURT

2020-TIOL-1116-HC-DEL-GST

Shriniwas Tin Industries Pvt Ltd Vs UoI

GST - Petition has been filed seeking a direction to the respondents to allow the petitioner to carry forward in its electronic credit ledger the credit of eligible dues in respect of stock available with the petitioner as on appointed day i.e. 30th June 2017 and to declare Rule 117 of CGST Rules as ultra vires of Sections 140 and 174 of the CGST Act, 2017; that the retrospective amendment made in Section 140(1) w.e.f. 01st July, 2017 is illegal and arbitrary.

Held: Counter-affidavits to be filed within four weeks and rejoinder-affidavit, if any, to be filed within four weeks thereafter - To await the judgment of the Supreme Court in Union of India Vs. Brand Equity Treaties Limited & Ors., SLP (C) 7425-7428/2020 = 2020-TIOL-115-SC-GST-LB, list on 16th September, 2020: High Court

- Matter listed: DELHI HIGH COURT

2020-TIOL-1110-HC-DEL-GST

Rehau Polymers Pvt Ltd Vs UoI

GST - Petitioner has sought a direction to the respondents to open the GST portal to enable the petitioner to upload the GST Tran-1 Form - They have placed reliance on the decision of this Court in Brand Equity Treaties Limited - 2020-TIOL-900-HC-DEL-GST - Admittedly, that decision in Brand Equity Treaties Limited (supra) is pending consideration before the Supreme Court and the operation of the said decision has been stayed by the Supreme Court - submission of petitioner is that, even in these circumstances, this Court may permit provisional manual filing of the GST Tran-1 Form in terms of Court's decision in Brand Equity Treaties Limited (supra); that in case the Supreme Court upholds the decision of this Court in Brand Equity Treaties Limited (supra), the respondents should not be permitted to present a fait accompli by pleading that 30th June, 2020 has already passed.

Held: Bench is not inclined to pass any such direction as sought by the petitioner - However, considering the fact that the petitioner has approached this Court by filing the writ petition before 30.06.2020 and which has been listed on 30.06.2020, in case the Special Leave Petition preferred by the respondents before the Supreme Court against the decision in Brand Equity Treaties Limited (supra) is rejected, and this Court's decision is upheld, it goes without saying that this Court would not be powerless to direct the respondents to accept the GST Tran-1 Form of the petitioner at a later point of time – Matter is to be listed on 16.09.2020 along with other similar matters: High Court

-Matter listed :DELHI HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-943-CESTAT-DEL

Commissioner CGST & CE Vs Siddhi Vinayak Cement Pvt Ltd

CX - The order in appeal as has been proposed to be challenged was earlier accepted by Committee of Commissioners and the Commissioner Jaipur - The extract of office note sheet annexed with the time chart reveals that the order in appeal was directed to be reviewed on 15 May, 2019 without stating any reason for proceeding against the acceptance, which was made five months prior to the directions of the review - Even the reviewing authority is miserably silent quoting any reason for recalling the acceptance of order of Commissioner (A) - In the application praying for condonation of delay, the reason earlier taken for delay was Lok Sabha Elections which was scheduled in April and May, 2019 - Though the explanation has been given time, but the said explanation not found to be a sufficient cause for condoning the delay - It is rather observed that altogether new reason has been quoted for impugned delay which also is highly unreasonable and unjustified - The reason quoted is not sufficient rather reflects negligence on the part of Department by first accepting the order proposed to be challenged and subsequently directing the review thereof for no reason - Resultantly Condonation of delay application is dismissed: CESTAT

- Appeal dismissed: DELHI CESTAT

Sandeep A Bhalodia Vs CCE & ST

CX - The demand against assessee is based upon the pen drive said to be seized from table drawer of office in factory - The statement of buyer of goods has been relied upon who on the basis of alleged sales data found in pen drive have stated that they received the goods without payment of duty - The pen drive was opened on 19.10.2010 during the visit of officers - However, the panchnama dated 19.10.2010 is silent about any alleged sales data found in pen drive - The alleged data finds mention only in panchnama dated 02.12.2010 - The assessee has vehemently argued that the Pen drive data cannot be relied upon as requirement under section 36B of CEA, 1944 was not followed - Section 65B of Evidence Act, 1872 and Section 36B of CEA, 1944 are parimateria and hence the ratio laid down by Apex Court in Anvar PV is squarely applicable for the invocation of provision of Section 36B and any reliance placed on the computerized printouts, without following statutory procedures and conditions of Section 36B, are not acceptable as evidence - Further as required under sub-section (4) of Section 36B, no certificate has been obtained as well as none of the conditions under Section 36B(2) of the Act, 1944 was observed - In such situation, the printout cannot be accepted as evidence to support the clandestine removal of the goods - Thus, in absence of compliance with Sub section (2) and (4) of Section 36B and considering serious lacunas in panchnama, the alleged sales data cannot be made basis for making demand against assessee - The assesseehad also sought cross examination of buyers of goods, suppliers of raw material and transporter who had accepted the buying of finished goods, selling of raw material and transportation of goods on the basis of pen drive data - However the same was not granted - There is no other corroboration evidencing alleged clandestine removal - Hence, the demand based upon pen drive and statements is not sustainable - No evidence in the form of documentary evidence or physical evidence of clearance of goods or purchase of goods was found either from the assessee or buyers of goods - None of the single buyer of alleged finished goods, supplier of raw material or transporter has produced their own single record - No excess raw material or finished goods or raw material was found in factory - No record showing excess production was found - In such case no demand can be made against assessee - In absence of evidence, there is no case of clandestine removal - As regard confiscation of goods bearing brand name "KLMN", assessee has produced certificate issued by the Gram Panchayat that the factory is situated in rural area - In terms of para 4 (c) of the Notfn 8/2003 – CE, the factory situated in rural area even if manufacturing other branded goods is eligible for said exemption - Therefore, assessee is eligible for SSI Exemption and the goods cannot be confiscated - The penalty upon assessee and other co-appellants is also not sustainable: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

Durga Cables Pvt Ltd Vs CCE & C

CX - The assessee is engaged in manufacture of aluminium electric wires and cables, aluminium conductors and PVC compounds on which Central Excise duty is being paid - Major input used in the manufacture of final product is aluminium wire rod - On the basis of investigation, a SCN was issued wherein it was alleged that the assessee had received huge amount of inputs i.e. aluminium wire rods, on which they have availed Modvat credit but, however, they have not accounted the final products which could be manufactured from the said inputs and thus they had clandestinely removed the said unaccounted final products without payment of Central Excise duty - In the entire proceedings, no evidence, much less corroborative evidence, has been adduced to show that input goods have been procured to manufacture goods for clandestine clearance - No evidence for extra production or unaccounted cash or statement of buyers or transporters has been obtained - It is a settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the Revenue by adducing some evidence - The Tribunal has taken consistent view that in absence of corroborative evidence, the charge of clandestine clearance cannot be levelled against the assessee - The whole basis of applying the input output ratio of 1:1 to arrive at the quantity of final products alleged to be clandestinely cleared by assessee is solely based on the production pattern of other assessee in the same Commissionerate - The Commissioner made a fundamental error in making such assumption to raise the demand on allegation of clandestine clearance - In the case of R. A. Castings Pvt. Ltd. 2008-TIOL-2732-CESTAT-DEL , the Tribunal held that demand raised on the basis of electricity consumption as per technical Report given by Dr. Batra was not sufficient to hold that excess goods might have been manufactured by assessee which could have been clandestinely removed without payment of duty - No shortage of goods were ever found which fact is on record and not in dispute - In any case, since the whole basis of allegation of clandestine removal is the production pattern of other assessees, which has no legal or scientific basis, the impugned duty demand cannot be sustained: CESTAT

- Appeal allowed: KOLKATA CESTAT

CUSTOMS

2020-TIOL-940-CESTAT-KOL

CC Vs Salasar Exim Pvt Ltd

Cus - The assessee has filed Bill of Entry through CHA, M/s Jaiswal Import Cargo Services Ltd. for clearance of goods, namely, LED TV of different models and empty pendent box on the declared CIF value from Hong Kong and the Port of Loading was Shenzhen China - The consignment was taken for scrutiny by the Officer of SIB regarding price declared by importer - NIDB was consulted for the contemporaneous import price, wherein it was found that the identical or similar goods were being cleared at the other Ports at value higher than the declared value by assessee - The Departmental Officers, after receiving a letter from one Shri Amar Mandelia, Proprietor of Importing Firm, enhanced the value after taking concurrence for non-issuance of SCN, personal hearing or assessment order, who requested for taking a lenient view - The NIDB Data cannot be substituted for Customs Valuation Rules - In case of Century Metal Recycling Pvt. Ltd. 2019-TIOL-215-SC-CUS-LB , the Supreme Court has given a categorical decision that the valuation has to be ascertained only by complying with the provisions of Section 14 of Customs Act, 1962 r/w CVR, 2007 - As the Adjudicating Authority has completely ignored the provisions of Customs Act and Valuation Rules, the impugned order is not sustainable - The impugned order is set aside: CESTAT

- Revenue's appeal dismissed: KOLKATA CESTAT

TP - In terms of rule 10B(l)(e)(i), any addition can be made on notional basis, whether cost incurred by AE can be added financial statement of assessee: ITAT

I-T : Provision of Guarantee fees service is not fee for Technical services under India - Netherlands DTAA: ITAT

TIOL CORPLAWS

IBC - Civil court has jurisdiction to entertain suit against corporate debtor in case of infringement of copyright even if insolvency proceedings are pending before NCLT: HC

Trade Marks Act - Term 'magic' is not an invented or distinctive word & as it qualifies as laudatory word, such term cannot be monopolised as it is common to trade: HC

Trade Marks Act - When marks LULIBET and LABEBET are compared as whole, defendant's mark is phonetically, visually and structurally similar to that of plaintiff mark: HC