2020-TIOL-1180-HC-MAD-IT

Pr CIT Vs P Subramanian

On appeal, the High Court finds that the rate of Rs 81/- per share was offered to all shareholders as per relevant regulations of the SEBI and that the Tribunal recorded exhaustive findings on the issues at hand. Hence it finds no substantial question of law to warrant its intervention.

- Revenue's appeal dimissed: MADRAS HIGH COURT

2020-TIOL-828-ITAT-DEL

Star Gems & Jewelry Vs Pr CIT

Whether if an assessee had shown a sum equal to or higher than 6% of his total turnover from business, as is income under the head "Profit and Gains of Business or Profession" for a particular AY, the AO should accept his trading result - YES : ITAT

- Assessee's appeal partly allowed: DELHI ITAT

2020-TIOL-827-ITAT-DEL

Shalimar Town Planners Pvt Ltd Vs ACIT

Whether satisfaction note is required to be recorded by the AO with respect to the documents belonging to the assessee - YES : ITAT

Whether assesment can be concluded u/s 143(3) without issuing notice u/s 153C - NO : ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-826-ITAT-MUM

Omni Active Health Technologies Ltd Vs ACIT

Whether for deduction u/s 35(2AB), first step is the recognition of facility by the prescribed authority and entering an agreement between the facility and the prescribed authority and once such an agreement has been executed, under which recognition has been given to the facility, then thereafter the role of AO is to look into and allow the expenditure incurred on in-house R&D facility as weighted deduction u/s 35(2AB) - YES : ITAT

- Assessee's appeal partly allowed: MUMBAI ITAT

2020-TIOL-825-ITAT-KOL

ACIT Vs Padma Logistics & Khanij Pvt Ltd

Whether there can be restriction of addition on account of disallowance of rent without appreciating the observation of the AO - YES: ITAT

- Revenue's appeal partly allowed: KOLKATA ITAT

2020-TIOL-824-ITAT-BANG

Tanglin Evelopments Ltd Vs DCIT

Whether deduction of foreign currency fluctuation loss depends upon the question as to whether the same is on capital account or revenue account - YES : ITAT

- Assessee's appeal partly allowed: BANGALORE ITAT

2020-TIOL-190-AAR-GST

Sri Venkata Vijaya Durga Traders

GST - Basic issue is whether Tamarind seed attracts Nil rate of tax under HSN Code 1209 (forest trees seed) or not - Applicant has admitted that tamarind seed/kernel as traded by them is sold to Millers and meant for commercial/industrial purpose - no certificate has been produced certifying that tamarind kernel/seed is meant for sowing purpose - CBIC in its FAQ dated 03.08.2017 has clarified that Tamarind kernel falls under HSN Code 1207, therefore, Tamarind seed is classifiable under HSN Code 1207 and attracts tax rate of 5% in terms of Sl. no. 70 of Schedule I of 1/2017-CTR - claim of applicant that Tamarind seed is classifiable under heading 1209 and is exempted in terms of Sr. no. 86 of 02/2017-CTR is untenable: AAR

- Application disposed of: AAR

2020-TIOL-189-AAR-GST

Sri Satya Sai Water Supply Project Board

GST - Applicant is constituted by the Government i.e. State of Andhra Pradesh - Board of the applicant consists of nine members out of which seven are officers/employees of the Govt. of AP and this makes it 77% of government control and thus falls short of 90% as required by the Act - even the cost of operation and maintenance of the Water Supply Scheme is contributed in the ratio of 70% by State government while 30% cost is borne by applicant - applicant falls short of the qualifying mark of 90% in terms of equity or control, hence does not fit in the category of 'governmental authority' - services received by the applicant are, therefore, not exempted from GST in terms of Entry no. 3 of 12/2017-CTR - Services procured by applicant fall under Sl. no. 25 (ii), heading 9987 [Maintenance, repair and installation (except construction) services] attracting tax rate of 18% GST under 11/2017-CTR: AAR

- Application disposed of: AAR

2020-TIOL-188-AAR-GST

Lakshmi Tulasi Quality Fuels

GST - Monthly rentals received by applicant on lease of her residential building - Though the applicant claims that she has rented out residential dwelling for use residence, it appears that the premise is a non-residential property - considering the number of rooms and amenities provided in it, boarding and hospitality services extended to the inmates, it appears that the building was constructed for the purpose of running a lodge house - it is, therefore, clear that the lessee is engaged in commercial activity of renting of rooms in the dwelling - as the lessor has rented out her dwelling for commercial activity, supply of such services, in the facts and circumstances of the case are classifiable as 'Rental or leasing services involving own or leased non-residential property' under SAC 997212 - same is taxable in the hands of the lessor and is liable for IGST @18% - applicant is not entitled to claim Nil rate of tax in terms of Sl. no. 13 of notification 9/2017-ITR: AAR

- Application disposed of: AAR

2020-TIOL-1193-HC-KERALA-CT

VKG Group Holiday Hotel Vs State Tax Officer

Whether it is fit case for remand so as to ascertain as to whether the assessee was given reasonable opportunity to present requisite evidence and was granted personal hearing, before penalty was imposed upon it - YES: HC

- Case remanded: KERALA HIGH COURT

2020-TIOL-1024-CESTAT-MAD

RS Development & Constructions India Pvt Ltd Vs CGST & CE

ST - Allegation is non-payment of service tax to the tune of Rs. 76,71,546/- - demand confirmed along with penalties u/s 76 of FA, 1994 and interest – appeal to CESTAT against imposition of penalty u/s 76 of FA, 1994 by contending that delayed payment of service tax was caused due to severe financial constraints faced by the appellant and it was not a case of wilful non-payment or short payment; that there were several pending payments from the appellant's clients because of which the appellant was unable to meet its day-to-day financial needs; that a huge amount of Rs. 1,08,43,740/- was due as refund from the Income Tax Department; that the appellant, being a small company, was financially burdened due to such reasons.

Held: It can be understood that the appellant, during the relevant period, was undergoing much financial stress and, therefore, could not deposit the service tax to the Government - In fact, they have filed proper ST-3 returns reflecting their service tax liability - This would show that the appellants had no intention to evade payment of service tax and that it was only a case of mere delay in paying up the tax on account of delay in receiving the payments from their clients – penalty under Section 76 ibid is, therefore, unwarranted and requires to be set aside – Appeal partly allowed: CESTAT [para 7, 10, 11]

- Appeal partly allowed: CHENNAI CESTAT

2020-TIOL-1040-CESTAT-HYD

Kellogs India Pvt Ltd Vs CCT

CX - CENVAT - Short point for consideration is whether the appellant is entitled to CENVAT credit of the service tax paid under the deeds for infrastructure development agreement, lease deed and subsequent maintenance on which service tax was paid by the Input service provider under the head of ‘Renting of Immovable Property Service' - Department is of the view that no CENVAT credit is admissible on these services because they are used in connection with setting up of the plant which has been deleted from the inclusive part of the definition of Input service under rule 2(l) of CCR, 2004 w.e.f 01.04.2011 by notification no. 3/2011-CE(NT) - Revenue issued a SCN which culminated in the adjudication order disallowing the CENVAT credit of Rs.1,39,52,380/- taken by the appellant on these services and ordering its recovery u/r 14 of CCR r/w s.11A; penalty also imposed u/r 15(2) of CCR r/w s.11AC of the CEA, 1944.

Held:  Services used in relation to setting up of a plant are neither specifically included nor specifically excluded during the relevant period - The main part of the definition, in the view of the Bench, is wide enough to cover in its compass any services used for setting up a plant especially when the services are used for obtaining the land on lease - without such land, no factory can be set up nor can any manufacture take place - there is a direct nexus between the manufacture of the final products and the services used for setting up of plant by leasing the land - Appellant is, therefore, entitled to avail CENVAT credit on the impugned services - impugned order is set aside and the appeal is allowed with consequential relief: CESTAT [para 11 to 13]

- Appeal allowed: HYDERABAD CESTAT

2020-TIOL-1023-CESTAT-KOL

Pan Parag India Ltd Vs CCE & ST

CX - Assessee is engaged in the manufacture of Pan Masala and Pan Masala containing tobacco classifiable under Chapters 21 and 24 of the CETA, 1985 - appellant is availing the benefit of exemption under Notification No. 8/2004-CE dated 21.01.2004, as amended – exemption denied, hence assessee paid the duty twice - once by way of Cenvat Account and then again through TR-6 Challan resulting in excess payment made to the Govt. exchequer and requested to allow CENVAT Credit or by way of refund – said request was denied on the ground that the allegations framed in the show cause notices for wrong availment of CENVAT Credit for the material period have already been dropped by way of adjudication and, therefore, the question of allowing further CENVAT Credit does not arise at all – appeal to CESTAT.

Held: Since the benefit of exemption has been denied and the assessee has duly made the payment by utilization of credit as also accepted by the department, the payment of amount by challan has to be at best considered as 'deposit' which cannot be retained by the department and is liable to be refunded back which the Bench directs to do so – impugned order set aside and appeal allowed: CESTAT [para 4]

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-1022-CESTAT-HYD

Parasakti Cement Industries Ltd Vs CCT

CX - The assessee manufactures cement and sells it to various retail and institutional buyers - A SCN was issued to assessee invoking extended period of limitation under proviso to Section 11A of CEA, 1944 demanding central excise duty along with interest and proposing to impose penalties under Rule 25(1) of CERs r/w Section 11AC of the Act, 1944 - The assessee firm had cleared cement to M/s APHCL as well as for their own use in 50 kg bags declaring a retail sale price of less than Rs 190/- per bag - They claimed the benefit of exemption Notfn 4/2007-CE which was denied by impugned order - There is no dispute that the goods manufactured by assessee fall under Chapter Heading 252329 - Sl No. 1 of the exemption notification is not applicable to the present case as the assessee is not a mini cement plant - They claimed the benefit of Sl No.1A which is applicable for "all goods whether or not manufactured in mini cement plant, not covered by Sl No. 1 and cleared in packaged form of retail sale price not exceeding Rs 190/- per 50 kg bag or of per tonne equivalent retail sale price not exceeding Rs 3,800/- - Evidently, there are two similar case laws with some differences both passed by the Tribunal Bangalore and upheld by Apex Court - In the case of Rain Commodities 2011-TIOL-565-CESTAT-BANG , the Tribunal made a factual observation that the cement was cleared in bulk and denied the benefit of notification at Sl No. 1A and instead gave the benefit at Sl No 1C - This judgement was followed by Commissioner in impugned order - There is another judgement in case of Sagar Cements Ltd 2010-TIOL-1119-CESTAT-BANG in which cement was cleared in 50Kg bags and retail sale price was printed as per the directions of the Controller of Legal Metrology, Govt of Andhra Pradesh - A plain reading of third proviso to Sl No. 2 shows that the mischief of this proviso is attracted where the retail sale price is not required to be declared and also has not been declared - In present case, even if the Revenue's argument that the retail sale price is not required to be declared is accepted there is no dispute that it has been declared - Therefore, the assessee is not covered by this proviso - There is a more specific proviso which covers the assessee's case which is the first proviso to Sl No. 2 of the explanation to the Notification - Althoug the matter is decided on merits, the demand is also time barred and no evidence of fraud, or collision or wilful misstatement or suppression of facts with an intent to evade payment of duty has been brought on record - In such a case, once the ER-I returns are filed, it would be reasonable to expect the Revenue officers to assess them and in case of any dispute, raise a demand within the normal period of limitation - Therefore, Tribunal also find in favour of assessee on the ground of limitation - As the demand is not sustainable on merits, the question of interest and imposition of penalties either on assessee or on their Chief Manager do not arise - The impugned order is set aside: CESTAT

- Appeals allowed: HYDERABAD CESTAT

2020-TIOL-1021-CESTAT-AHM

Man Industries India Ltd Vs CCE & ST

CX - Cenvat credit has been denied to appellant in respect of service tax paid on management, maintenance and repairs and rental charges of warehouse (dumpsite) – such credit has been availed as a service provider and transferred to the manufacturing unit in capacity of ISD – appellant argued that the said warehouse is a place of removal and, therefore, in terms of rule 2 (l) (ii) of Cenvat Credit Rules, 2004, they are entitled to Cenvat credit on the same – contention of AR is that any place where duty paid goods are stored, cannot be the place of removal.

Held: As per rule 2(l)(ii) of CCR, 2004, appellant would be entitled to Cenvat credit of service tax utilized upto the place of removal - It is seen that the goods are cleared on payment of duty from the factory gate and thereafter the goods are deposited in the warehouse/ dumpsite - The goods are lifted by the buyers from the dumpsite as and when required - The order-in-original also asserts that the consideration received for providing this service did not form part of assessable value of the goods i.e. pipes - In Para 7(ii), it has been asserted that the appellant have recovered charges from the buyers for warehousing along with service tax payable on the said charges, under the category of Business Auxiliary Service - From the above, it is apparent that the appellant is not only a manufacturer but also service provider - They are also one legal entity - In these circumstances, the Cenvat credit of service tax paid on rental charges of warehouse cannot be denied as the same is admissible in respect of service provided by them to their buyers - The transfer of credit from the ISD registration to the manufacturing unit or service provider is immaterial as they are a single entity – No merit in the impugned order, hence the same is set-aside and appeal is allowed: CESTAT [para 5, 6]

- Appeal allowed: AHMEDABAD CESTAT

2020-TIOL-1020-CESTAT-BANG

Kirloskar Electric Company Ltd Vs CCE, C & ST

CX - Appellant is a manufacturer of various types of electric motors - Dispute in the present case involves clearance of certain electric motors made in the month of September 2006 without payment of duty for use in the Krishna Drinking Water Supply Project, on the basis of a Certificate dt. 24/02/2006 issued by the District Collector, Nalgonda - Benefit of the notification has been denied and duty demanded only for the reason that the certificate has mentioned wrongly the Notification No.3/2004 dt. 08/01/2004 instead of notification which was required to be specified on the date of clearance of the goods and which was Notification No.6/2006 dt. 01/03/2006 - appeal to CESTAT.

Held: Bench is convinced that the goods covered by the said certificate are intended for construction of water treatment plant for Krishna Drinking Water Supply Project - The fact that the certificate has mentioned a different Notification No.3/2004 dt. 08/01/2004 cannot take away the substantial benefit intended for setting up of water treatment plant for drinking water supply project - Mistake in mentioning the wrong notification number cannot be the sole reason for denying the benefit to the assessee which they were otherwise eligible - impugned order set aside and appeal allowed: CESTAT [para 11, 13]

- Appeal allowed: BANGALORE CESTAT

2020-TIOL-1019-CESTAT-BANG

Jetwing Freight Forwarders Vs CC

Cus - The assessee is a partnership firm and holding Customs Broker licence - They are operating under Form C procedure in terms of Regulation 7(2) of CBLR in Mumbai Customs Zone - They filed various Bills of Entry pertaining to the import of TV panels and parts of LED TV sets by M/s. Vishal Collections, Shukra Enterprises, Vikram Enterprises, Tablish Enterprises, Hitesh Enterprises, Garret Impex, Robs Impex and Ozone Collections - The allegation against assessee is that they have not complied with the Regulations 11(a), 11(d), 11(e) and 11(n) of CBLR, 2013 - In impugned order, the Commissioner has considered each and every submission raised by assessee and has dealt with the same - Assessee has admitted that they have not verified the identity of the importer - All the documents were received from Shri Dinesh Joshi of M/s. Alfa Exim who is neither the importer nor their authorized representative - During investigation, statement of Shri Sarfraz and Shri Majid were recorded and they have admitted that they have imported the goods and paid the duty by cash to Shri Dinesh Joshi which was paid by him - Assessee raised the bill of service charges on M/s. Alfa Exim and not on the actual importers - The stand of assessee that Shri Damodhar Moddiboina was not the authorized person by them to handle the KYC verification and the same was done by Shri Bahusali, is not tenable because Shri Damodhar Moddiboina in his statement given before the Customs authority during the investigation never stated that Shri Bahusali is the KYC person - Moreover, all the documents were submitted by him - Even in the second statement made by Shri Damodhar Moddiboina, he did not name Shri Bahusali as the person incharge of KYC - It is only before the Inquiry Officer for the first time, Shri Bahusali has been introduced which appears to be a afterthought - The identity of the importer was not verified by assessee as can easily be elicited from the statement of Shri Dinesh Joshi, Shri Sarfaraz and Shri Majid - It is also a fact that IEC holders have stated that they were not aware of any imports by them - Assessee actually knowing the correct facts, chose to keep quiet and continued to make clearances which were being imported by 3rd parties and not by the IEC holders - Therefore, assessee has violated the Regulations as alleged in SCN and are guilty of gross negligence in performance of their duties as Customs Broker - Revocation of Customs Broker licence is a harsh punishment which will deprive the assessee from their livelihood along with livelihood of all those people working with them - Hence, the revocation is set aside but the forfeiture of security deposit as well as the penalty of Rs.50,000/- imposed on assessee is upheld: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

2020-TIOL-1018-CESTAT-KOL

Indo Friends Agency Vs CC

Cus - The assessee is in appeal against O-I-O ordering revocation of assessee's Customs Broker licence by exercising power under Regulation 20(7) of CBLR, 2013 and further ordering forfeiture of the full amount of security deposit furnished by assessee by exercising power under Regulation 18 of CBLR - In the SCN, there is no allegation of any omission or commission, under either the Act or CBLR, by the assessee as a Customs Broker - There is also no allegation that assessee was involved with importation of any of the subject consignments involved or in any manner aided or abetted the importation of the subject consignments or in the alleged wrongful actions in said importation by the persons concerned - The allegation in the said SCN has been made exclusively against one Sajal Das in his personal capacity and in no manner as representative of assessee or for acting for and on behalf of assessee in any manner - There is also no material disclosed in either the Inquiry Report or the impugned order as to how and on what basis it could be held that the assessee had failed to bring the alleged serious lapses of Sadguru Forwarders Pvt. Ltd. to the Customs authorities, in the absence of there being any evidence on record to establish that the assessee was aware of alleged activities of said Sadguru Forwarders Pvt. Ltd. - It is thus apparent that this finding is based on assumptions and presumptions and hence is unsustainable - The allegation of assessee not complying with Regulation 11(d) is neither in SCN nor in the Inquiry Report - The Commissioner has therefore traversed beyond the SCN - For this reason also, as held by Supreme Court in Gas Authority of India Ltd. 2007-TIOL-250-SC-CX , the finding of Commissioner on this issue is unsustainable - The entire case is of alleged acts of omission and commission on the part of a partner of assessee, Sajal Das, in his individual capacity - From the statement of Sajal Das referred to and relied upon, there is no evidence which disclosed that the said Sajal Das in his alleged acts of omission and commission had acted for and on behalf of assessee or as its agent - There is no allegation also to this effect in either the SCN or the Inquiry Report or in the impugned order - In the absence thereof, assessee cannot be held to be liable for any act on the part of Sajal Das, a partner of the firm - The allegations and findings are exclusive to the said Sajal Das and it has been concluded that Sajal Das had committed gross misconduct by participating in the acts of omission and commission stated therein - However without assigning any reason or basis in support thereof, simpliciter on the basis of the said conclusion, without any discussion or reasoning, assessee has been held as unfit to transact any business in Customs Station and its licence has been revoked along with forfeiture of its entire security deposit - This is patently erroneous and impermissible - The impugned order of Commissioner revoking the assessee's CB licence and forfeiting its deposit with the Department is erroneous and unsustainable: CESTAT

- Appeal allowed: KOLKATA CESTAT