Gurcharan Singh Vs CIT

Whether mere fact that the amount had been received through Bank by itself would not prove the identity, credit worthiness of the donor or the genuineness of the gift – YES : HC

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

Chennithala Triperunthara Service Co-Operative Bank Ltd Vs CIT

Whether it would not necessary that the requirement of predepositing 20% of the duty demand can be dispensed with only if there was an order of the high court – YES: HC

Whether the judgment of the Full Bench followed by the Division Bench had an enuring effect on all the authorities – YES: HC

- Question answered against Revenue: KERALA HIGH COURT

2020-TIOL-792-ITAT-DEL

Exotica Housing And Infrastructure Company Pvt Ltd Vs ITO

Whether if the assessee company is maintaining running transactions with its subsidiary company, provisions of Section 2(22)(e) are not attracted - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

ACIT Vs Hallmark Developers

Whether under Income Tax law there is any prohibition to transact with sister concern, hence expenses which are genuine & incurred for the purpose of business can be disallowed-NO : ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

DCIT Vs Piramal Enterprises Ltd

Whether expenditure claimed towards "repairs–computers-annual maintenance" is eligible for deduction as revenue expenditure - YES: ITAT

Whether taxpayer is eligible to claim deduction u/s 80IC if he has sufficiently complied with the conditions of said provision - YES: ITAT

Whether interest earned on tax free bond is exempt u/s 10(15) - YES: ITAT

Whether disallowance of assessee's claim purely on technical reason is unsustainable - YES: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

Sotheby's Art Services India Pvt Ltd Vs UoI

GST - Petitioner attempted to file Form GST TRAN-1 in order to carry forward and transition its accumulated CENVAT credit into the GST regime - Since the statutory time limit to file Form GST TRAN-1 was fixed as 27.12.2017, the petitioner was unable to file Form GST TRAN-1 on the GST portal – Petitioner, thereafter, approached the jurisdictional officer and requested him to accept the manual Form GST TRAN-1, however, the same was refused and the petitioner was directed to approach the jurisdictional Nodal officer – accordingly, the petitioner filed an application dated 04.12.2019 with the Nodal officer i.e. respondent No.5, Joint Commissioner of State Tax, 5th Floor, GST Bhawan, Mazgaon, Mumbai, seeking to carry forward Cenvat credit amount of Rs.47,96,627.00 as input tax credit under the GST regime in the electronic credit ledger of the petitioner - the Nodal Officer (respondent No.5) forwarded the petitioner's application to the respondent No.6 i.e. Joint Commissioner of State (EIU), Economic Intelligence Unit, C Wing, Old Building, GST Bhavan, Mazgaon, Mumbai- 400 010 for necessary action but thereafter there has been no resolution of the said grievance, therefore, the present petition is filed.

Held: Petition is disposed of by issuing a direction to the respondent No.6/appropriate authority to consider the application dated 04.12.2019 filed by the petitioner for seeking to carry forward the accumulated Cenvat credit into the GST regime and acceptance of the petitioner's Form GST TRAN-1 in accordance with law - In doing so respondent No.6 / appropriate authority shall give a hearing to the petitioner and thereafter pass a speaking order on the aforesaid application - respondent No.6 / appropriate authority is directed to decide the application dated 04.12.2019 and pass appropriate speaking order in accordance with law as expeditiously as possible and in any event within a period of 8 weeks – Writ petition is disposed of: High Court [para 11 to 13]

- Petition disposed of: BOMBAY HIGH COURT

2020-TIOL-1142-HC-KAR-GST

L And T Hydrocarbon Engineering Ltd Vs State Of Karnataka

GST - COVID-19 - National Lockdown - Petitioner is engaged in procurement, fabrication, construction and project management and integrated design to build solutions to Onshore and offshore Hydrocarbon Projects - The petitioner was moving 229.94 MTs of goods bearing description Structural Plate EN 10025 S235JR THK from its SEZ Unit in Kattupalli, Tamil Nadu to their bonded warehouse at Hazira, Gujarat - One of the means of conveyance bearing HR39E 4796 was intercepted and inspected by respondent No.2 Commercial Tax Officer, Vigilance-02, A Block Vanijya Therige Karyalaya, Bengaluru -47 and on verification they detained goods and conveyance under Section 129(1) of the CGST Act, 2017 on the ground as per the physical verification of the vehicle the quantity was 41 Metric Tonnes and declaration was made for 31 Metric Tonnes only - Petitioner explained that the discrepancy has arisen due to clerical error of interchanging the weighment and quantity of 31 MT against the vehicle No.HR39 E4796 (instead of 41 MT) and mentioning 41 MT against the vehicle No.MH- 46AF4577 (instead of 31 MT) - respondent No.2 issued notice on 23.05.2020 proposing to demand integrated tax of Rs.2,88,669/- and imposed penalty equal to 100% of the tax amount under Section 129(1)(a) and penalty of Rs.13,51,051/- under Section 129(1)(b) of the GST Act - Writ petition is filed for quashing Annexure-A which is the order dated 23.05.2020 passed by respondent No.2 and Annexure-A-1- Order dated 04.06.2020 passed by respondent No.2.

Held: The appellate authority is stated to be Joint Commissioner of Commercial Taxes in the matter - Thus, when the appeal is provided writ remedy cannot be invoked by making High Court as middle authority or cannot be placed in between the prescribed authority (respondent No.2) and appellate authority as per Section 107 of the Central Goods and Services Tax Act - Equally efficacious remedy is prescribed by law for the petitioner - Further the matter does not stand in the footing of error or oversight or a slip - matter ought to have been agitated before the appellate authority as per law - There is no necessity to examine and adjudicate entitlement of the relief in the circumstances under writ jurisdiction under Article 226 of the Constitution of India - Writ petition is dismissed: High Court [para 15, 16]

- Petition dismissed: KARNATAKA HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-961-CESTAT-CHD

CCE Vs Wrigley India Pvt Ltd

CX - Respondents are engaged in the manufacture of Chewing Gum, Bubble Gum, Solano Candy and other confectionary items classifiable under Chapter 17 of CETA, 1985 - Alleging that respondents were clearing 20 Solano Toffees free in each jar containing 150 Bubble Gums and have short paid the Central Excise Duty by not including the MRP of these toffees in the MRP of the jar cleared by them containing 150 Bubble Gums and 20 Solano Toffees, revenue issued show cause notice dated 14.12.2009 demanding CE duty of Rs. 59,02,249/- along with proposal seeking imposition of penalty/interest – Commissioner dropped the demand, hence Revenue is in appeal and, inter alia , contends that after concluding that the pack was not a retail pack, adjudicating authority could not have proceeded to determine the value of the jar as per Section 4A of the CEA, 1944; that Solano Toffees when cleared otherwise bear the MRP of Rs 0.50 on each such toffee and, therefore, assessable value of 22,22,33,360 pieces of Solano Toffees supplied free in the jars of Bubble Gum is Rs 7,22,25,842/- after allowing the abatement of 35% on the MRP of Solano Toffees cleared as such and duty is payable on the same.

Held: Issue involved in the matter is squarely covered by the decision of the Tribunal in case of Himalaya Drugs and which order has been upheld by the Supreme Court - 2015-TIOL-214-SC-CX - It is not the case of the revenue that the jar containing 150 bubble gums and 20 Solano Toffees were to be valued as per the Section 4A of the Central Excise Act, 1944 - On the contrary the finding of the Adjudicating authority that the said pack is a wholesale pack and not the retail sale pack has been admitted by the Committee of the Chief Commissioners while directing Revenue to file this appeal - After having done so, revenue has proposed to determine the value of wholesale pack by applying the provisions of Section 4A in respect of the Bubble Gums cleared by the appellant and the value of remaining Solano Toffees by treating them as free samples by application of Section 4 of the Central Excise Act, 1944 – Bench is not in agreement with such approach as by doing so revenue has proposed to disintegrate the wholesale package and determine the value of individual components under separate provisions of the same Act - Having held that Section 4A is not applicable to the wholesale pack in the form in which the jar containing 150 Bubble Gums and 20 Solano Toffees was cleared, the value of entire jar was to be determined by application of Section 4 as it existed at that time - Revenue has in the show cause proposed not to determine the value of the wholesale pack but only a component of the said pack under Section 4 - In the view of the Bench, Section 4 should have been applied to the entire pack in the form in which it is cleared, and liability to duty determined [ Makson Confectionary - 2010-TIOL-72-SC-CX refers] - Since there is no proposal in the show cause notice to determine the value of jar u/s 4 of the CEA, 1944, Bench is not in position to determine the same as of now - since the SCN or the appeal filed by Revenue does not propose to determine the assessable value of wholesale pack in the form in which it is offered for clearance, no merits in the appeal filed by the Revenue – Appeal dismissed: CESTAT [5.4, 6.1]

- Appeal dismissed: CHANDIGARH CESTAT

Mitsuba Sical India Ltd Vs CCE

CX - Proceedings seek to deny Cenvat credit on the construction service availed during the period of 2008-09 – such construction service was availed for construction of own manufacturing premises – In view of the Tribunal decision in case of Bellsonica Auto Components India P. Ltd - 2014-TIOL-430-CESTAT-DEL demand of Cenvat credit cannot be sustained – impugned order is set aside and appeal is allowed: CESTAT [para 5]

- Appeal allowed: CHANDIGARH CESTAT

TATA Steel Ltd Vs CGST & CE

CX - The assessee is engaged in manufacture of iron and steel products, at its own iron ore mines - Iron ore extracted from the said mines is converted into iron ore concentrates and most of them are cleared to the factory of assessee at Jamshedpur, upon payment of excise duty, for captive consumption therein in the manufacture of dutiable final products - A part is also sold to TML - The assessee determined the assessable value/transaction value of iron ore concentrate removed to its factory at Jamshedpur as per Rule 8 of CEVR, 2000 and paid excise duty payable thereon as per the said valuation - Two SCNs were issued to assessee alleging violation of provisions of Section 4 of Central Excise Act read with Rule 4 of Central Excise Rules and Rules 8 and 9 of the Valuation Rules - The assessee had annexed its letter under which the Cost Audit Report for the period 2006-07 was submitted to the Senior Audit Officer, CRA-3 Bhubaneswar, the endorsement on which confirmed due receipt thereof - The Department's own stand, set out in impugned order, that the cost of production of iron ore concentrate, prepared and signed by a Cost Accountant arrived at on 110% basis as per CAS-4 in terms of Board's circular 692/8/2003 in respect of goods transferred to assessee's Jamshedpur factory was duly made available to the Department - Hence, the finding that the cost of production of goods for captive consumption by assessee was not arrived at as per the Board's Circular No. 692/8/2003 , is unsustainable - It is not a case of valuation of goods sold to or through TML, assuming as held in the impugned order that it is a subsidiary company of assessee and therefore a "related person" within the meaning of Section 4(2)(b) of the Act - The goods whose valuation is the subject matter are the goods which are transferred for captive consumption to the assessee's factory at Jamshedpur - Moreover, Rule 9 requires that the excisable goods are only sold to or through a related person for it to be applicable - The facts on record, as stated in both the SCNs and the impugned order, establishes that such is not the case - Hence, the condition precedent for applicability of Rule 9 of Valuation Rules has not been satisfied - Rule 10 of Valuation Rules also, even on the finding of the Commissioner that TML is a subsidiary company of assessee, is inapplicable - The said provision is applicable only in cases where the assessee so arranges that excisable goods are not sold by him except to or through an inter-connected undertaking - The facts on record explicitly demonstrating that such is not the case herein, Rule 10, and, consequently, Rule 9 cannot have any application - Therefore, assessee had correctly valued the subject goods transferred to its Jamshedpur factory in terms of Rule 8 of Valuation Rules at 110% of cost of production thereof, determined as per CAS-4 and, hence, there was no undervaluation of the said goods cleared to the factory of assessee at Jamshedpur for captive consumption therein and therefore, no short payment of duty - The impugned order is set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

CUSTOMS

2020-TIOL-982-CESTAT-MAD

HDFC Bank Ltd Vs PR CGST & CE

Cus - The assessee, a banking corporation, had claimed refund of duty, however such claim was rejected on grounds that the BoE had not been challenged by the assessee through appeal.

Held - The assessee paid duty under protest - Where an assessee pays duty under protest, it indicates a challenge by him on the demand of duty made by the Department - Therefore it is for the Department to pass appropriate assessment order considering the protest made by the assessee - Hence the order rejecting refund is set aside and matter is remanded for re-consideration of refund claim: CESTAT

- Case remanded: CHENNAI CESTAT

2020-TIOL-958-CESTAT-DEL

BBM Impex Pvt Ltd Vs CC

Cus - The issue relates to rejection of declared value for import of Synthetic Rubber PBR Non Oil Off Grade Loose Lumps in Super Sacks Packing and consequential order of confiscation along with penalty - The assessee is a regular importer and engaged in trading of-Synthetic Rubber PBR Non Oil Grade Loose Lumps in Super Sacks classifiable under CTH 40021990 and also PVC Resin Powder Off Grade Suspension R 65/67 in super sacks classifiable under CTH 39042210 - The case of undervaluation has been made by Department on two of the three types of goods imported by assessee vide Bills of Entry in dispute - The CIPET Test Report supports the correct description of impugned goods in the Bills of Entry, which is rather more detailed than mentioned in CIPET Report and thus there is no misdescription - There is no admission of assessee admitting to undervaluation, or of any extra financial consideration apart from the declared transaction value, paid to the overseas supplier - Further, there is no evidence that the assessee and overseas supplier are related parties or that the invoice value was not the transaction value - The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected, as held by Apex Court in Sanjivani Non Ferrous Trading Pvt. Ltd. 2018-TIOL-447-SC-CUS and South India Television Pvt. Ltd 2007-TIOL-126-SC-CUS - The allegation of undervaluation cannot be sustained: CESTAT

- Appeal allowed: DELHI CESTAT

TP - it is fit case for remand so as to enable AO & TPO to re-consider issue of royalty, where similar matter in assessee's own case for past AY, was remanded: ITAT

TP - Issues which emerged as result of adjustments made during TP Proceedings would not be fit for penalty if issues are debatable: ITAT

TIOL CORPLAWS

Companies Act - Sec 535 of Companies Act provides statutory remedy to owner/remedy of possession of property from Official Liquidator without requirement of filing any suit for eviction: HC

IBC - Merely disputing claim of operational creditor by corporate debtor can be ground for rejection of application u/s 9: NCLAT