PPN Power Generating Company Pvt Ltd Vs CIT

Whether income which is to be assessed in the particular year cannot be assessed in any other year - YES: HC

- Assessee's appeal dismissed: MADRAS HIGH COURT

BT Global Communications India Pvt Ltd Vs DCIT

In writ, the High Court finds that order passed is in violation of the principles of natural justice, since the assessee's objections to the SCN issued prior to passing the order, were not considered. Hence the court directs that such objections be considered and a fresh order be passed in six weeks' time.

- Case remanded: DELHI HIGH COURT

2020-TIOL-1524-HC-KAR-IT

Bioplus Life Sciences Pvt Ltd Vs DCIT

Whether expenses incurred in respect of development of a new medication are treatable as capital expenses where an asset is brought into existence for enduring benefit of the business - YES: HC

- Assessee's appeal dismissed: KARNATAKA HIGH COURT

2020-TIOL-1523-HC-DEL-IT

BM Gupta Estates Pvt Ltd Vs ITO

In writ, the High Court posts the matter for further hearing, considering the assessee questions the demand for interest being raised twice in respect of the same AY and the Revenue's need to obtain instructions in this regard.

- Case deferred: DELHI HIGH COURT

2020-TIOL-1054-ITAT-CHD

Punjab Cricket Association Vs ITO

Whether if payments by the BCCI to the State Associations has already been taxed at the hands of BCCI, the same cannot be taxed again as it would amount to double taxation - YES : ITAT

- Case Remanded: CHANDIGARH ITAT

2020-TIOL-1053-ITAT-MUM

ITO Vs Heckyl Technologies Pvt Ltd

Whether the share premium account is to be included in the paid-up capital account, thus leading to it being treated on a par with the paid-up capital - YES : ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2020-TIOL-1052-ITAT-KOL

DCIT Vs AP Fashions Pvt Ltd

Whether if neither parties under dispute can prove nature of pooja expenses with records, a nominal disallowance can be made as it will meet the ends of justice - YES: ITAT

- Revenue's appeal dismissed: KOLKATA ITAT

2020-TIOL-1051-ITAT-JAIPUR

Kala Manish Dhameja Vs ITO

Whether where the very basis for which reassessment proceedings were initiated doesn't survive, there is no basis for making additions towards failure to substantiate the cost of construction so claimed by the assessee - YES : ITAT

- Assessee's appeal allowed: JAIPUR ITAT

2020-TIOL-1050-ITAT-JAIPUR

Radha Swami Buildcon Pvt Ltd Vs DCIT

Whether fair market value of office properties sold, warrants being re-determined, with due heed given for not including the common area of the building in the area of the offices, while also considering that such facilities available to the office units sold, would raise the value of such properties - YES: ITAT

- Assessee's appeal partly allowed: JAIPUR ITAT

Ashok Kumar Vs Commissioner Of CGST & CE

GST - Circular Trading - Allegation is that applicant's firm after availing the ITC of Rs.53.50 crores without any actual receipt of goods has also passed on the said ITC of Rs.53.50 crores to six firms, out of which five firms, namely M/s. Chandan Enterprises, M/s. Sheela Sales Private Limited, M/s. Chandan Sagar Sales Pvt. Ltd. M/s. Chandan Sagar Constructions Pvt. Ltd and M/s. Structeco Infrastructure Pvt. Ltd are closely held entities of M/s. Sheela Sales Corporation, inasmuch as proprietor or partner or a Director are common and are related to each other - Investigation also revealed that above referred five firms have availed and passed on the said credit of Rs.63.50 crores to 360 other firms located in various parts of the country - applicant no.1 in his statement dated 9th December, 2019 and 20th January, 2020 admitted that none of his firms had received goods from M/s. Bajrang Traders on which invoices they have availed ITC of Rs.53.63 crores; and that none of his firms has made payment to M/s. Jai Bajrang Traders - Apprehending arrest on accusation of having committed a non-bailable offence in terms of Section 132(1)(b) and (c) read with Section 132(5) of the CGST  Act, 2017 ), applicants had sought directions under Section 438 of the Criminal Procedure Code, that in the event of their arrest they shall be released on bail - Bombay High Court observed that on perusal of file notings and statements of applicant, it prima-facie  suggested that applicants' complicity/involvement in availing fake input tax credit without movement of goods on forged invoices Rs.63.50 crores is in breach of provisions of Section 16 of CGST Act, which is cognizable offence under Section under Section 132(1)(b)(c) read with Section 132(5) of the CGST Act; that the applicants had failed to produce unique E-way bill number (EBN) particulars, transporter's details, proof of receipt of goods either by himself or his agent or warehouse keeper and payment proof either by himself or by agent or otherwise - That the contention of respondents that fraudulent ITC claim of Rs.63.53 crores is a matter of grave concern and requires thorough investigation for which applicants' presence is absolutely necessary is well-founded; that many of the vehicle numbers are bogus and vehicle's registration date is latter then the lorry receipt dates - that in view of the facts of the case and in the larger interest of the public and the State, in serious cases like this, Bench is not inclined to exercise discretion under Section 439 of the Criminal Procedure Code in favour of applicant no.1; that applicant's detention in custody is necessary to prevent him from causing the evidence of the offence to disappear or tampering such evidence is well founded - accordingly, the pre-arrest bail application of the applicant was rejected by the Bombay High Court - aggrieved, the applicant filed a special leave petition before the Supreme Court.

Held: SLP is dismissed and as a sequel to the same, pending interlocutoory applications stand disposed of: Supreme Court Larger Bench.

- Petition dismissed: SUPREME COURT OF INDIA

2020-TIOL-149-SC-GST

GST - National Anti-Profiteering Authority (NAA) has filed this Transfer Petition for transfer of the writ petitions pending in the High Courts of Bombay, Gujarat and Karnataka, to the Delhi High Court - in their writ petitions, respondents have challenged the constitutional validity of Section 171 of CGST Act, 2017 , relating to Anti Profiteering, the benefit not being passed to the eventual customers – Counsel refers to the Court's order dated 19.02.2020 to point out that similar writ petitions pending in the Delhi, Bombay, Punjab and Haryana High Courts, were ordered to be transferred, at the instance of the NAA.

Held: Notice, returnable within two weeks, be issued to respondent-writ petitioners: Supreme Court

- Notice issued: SUPREME COURT OF INDIA

2020-TIOL-243-AAR-GST

GST - Value of supply for the transaction of sale of residential/ commercial property with undivided rights of land is to be arrived in terms of deeming provision of Para 2 of Notification no. 11/2017-CT (Rate) as amended by Not. No. 1/2018-C.T. (Rate) - Even if the value of Land is clearly ascertainable, actual cost of Land cannot be deducted for the purpose of arriving at the taxable value of supply - land value is deemed to be one third (33.33%) of the total amount (i.e. value including land value) and GST is payable on balance amount in terms of Not No. 11/2017-CT (Rate) and 08/2017-I.T (Rate) - reliance on Rule 18(A) (A) of the erstwhile Gujarat Value Added Tax Rules, 2006 is not warranted in the instant case since the Value Added Tax Act is no more in existence - The Value Added Tax Act also does not have any legal basis in determination of GST liability since the value of supply is to be arrived in terms of the provisions of the GST Act: AAR

- Application disposed of: AAR

2020-TIOL-242-AAR-GST

GST - Plastic Mechanical Liquid Dispenser imported from China is classifiable under HSN CSH 3926.90; attracts GST @ 28% till 14.11.2017 and @18% w. e. f. 15.11.2017: AAR

- Application disposed of: AAR

2020-TIOL-241-AAR-GST

GST - Section 15(2) of the CGST Act, 2017 - Applicant is providing services of "Rental services of aircraft including passenger aircrafts, freight aircrafts and the like with or without operator"; classifiable under Heading 9966 of Notification No. 11/2017-Central Tax (Rate) which appears at Sr.No.10(ii) of the said Notification on which applicable GST is 18% - In the instant case, the applicant is filling ATF fuel in the aircraft before the supply of services to the customer i.e. "Rental services of aircraft including passenger aircrafts, freight aircraft and the like with or without operator" and the amount of the ATF fuel is being charged from the customer, which the applicant is receiving in the form of consideration, which has been received by them as reimbursement - This act of the applicant would be considered as 'any amount charged for anything done by the supplier in respect of the supply of goods or services or both at the time of, or before delivery of goods or supply of services' and would, therefore, form part of the value - Amount recovered as reimbursement (at actuals) by the applicant M/s. Global Vectra Helicorp Ltd. from the customer, for the fuel procured on behalf of the Customer is required to be included in the value of services provided by the Applicant: AAR

- Application disposed of: AAR

2020-TIOL-240-AAR-GST

GST - 'Sprayer pumps' (manually operated) manufactured and supplied by applicant are classifiable under Tariff item No.8424 8100 - GST rate on the said product would be 18% GST upto 24.01.2018 and 12% GST with effect from 25.01.2018 as per Notification No: 01/2017-Central Tax(Rate) - 'Stoves' manufactured and supplied by applicant are classifiable under Tariff item No.7321 8990 - GST rate on the said product would be 12% GST as per Notification No: 01/2017-Central Tax (Rate) dated 28.06.2017: AAR

- Application disposed of: AAR

2020-TIOL-239-AAR-GST

GST - Activity of providing auditing, accounting, taxation to the Sardar Sarovar Narmada Nigam Ltd. is not covered under Entry No. 3 of Notification No. 12/2017-Central Tax (Rate), dated 28-6-2017, hence liable to GST - Applicant has provided no evidence to establish that the activity of providing service of auditing, accounting, taxation to the SSNNL are provided in relation to any function entrusted to a Panchayat under Article 243G of the Constitution or in relation to the function entrusted to a Municipality under Article 243W of the Constitution: AAR

- Application disposed of: AAR

2020-TIOL-238-AAR-GST

GST - Applicant is engaged in the business of quarry of "Black Trap" in the State of Gujarat - Royalty paid - The activity undertaken by the applicant is classifiable under Heading 9973 (Leasing or rental services, with or without operator), as mentioned in the annexure at Serial No. 257 (Licensing services for the right to use minerals including its exploration and evaluation) sub-heading 9973 37 of Notification Number 11/2017-C.T. (Rate), dated 28-6-2017 - The activity undertaken by the applicant attracts 18% GST: AAR

- Application disposed of: AAR

SERVICE TAX

2020-TIOL-1370-CESTAT-DEL

Basediya Construction Vs CCGST

ST - It is apparent from a reading of the delay condonation application that only casual statements have been made without any details or supporting documents - According to the Appellant, an accountant had been entrusted to file the appeal but since he had suddenly gone on leave, a new counsel was consulted - The Appellant has not stated as to how the Appellant acquired knowledge that the accountant had not filed an appeal - The Appellant has also not stated on which date the Appellant acquired knowledge that the appeal had not been filed by the accountant - Bench is not impressed by the facts stated in the Application that the Appellant had been prevented by sufficient cause from filing the appeal within the stipulated period - Application is, accordingly, rejected and, therefore, the appeal stands dismissed: CESTAT [para 7 to 9]

- Application/Appeal rejected: DELHI CESTAT

2020-TIOL-1367-CESTAT-MUM

Raghuvir Motor Agencies Pvt Ltd Vs CCE

ST - The assessee is engaged in providing services of promotion or marketing to the Bank/Non-banking Financial Institutions and Insurance Companies, who are providing loans to the customers - Such services are meant for promoting the banking business of such financial organizations - In consideration, assessee receive pay outs/incentives/ commission - During disputed period, assessee did not discharge service tax liability, which was confirmed along with interest - The issue arising out of present dispute is no more res integara in view of decisions in Pagariya Auto Centre 2014-TIOL-141-CESTAT-DEL-LB , Hyundai Motor India Ltd. 2018-TIOL-2899-CESTAT-MAD and Addis Marketing 2016-TIOL-2621-CESTAT-MUM - The Tribunal in said cases has consistently held that promotion and marketing of loans and finance on behalf of banking and non-banking financial institutions should appropriately be classifiable as BAS and service tax liability is required to be discharged on such taxable service - Admittedly, assessee did not pay service tax into the Government exchequer and thereby, contravened the statutory provisions - Therefore, no infirmity found in impugned order passed by Commissioner (A): CESTAT

- Appeals dismissed: MUMBAI CESTAT

2020-TIOL-1365-CESTAT-KOL

Oil India Ltd Vs CCGST

ST - The assessee, a Govt. of India enterprise, is engaged in business of exploration, production and sale of crude oil and natural gas - The point of dispute is, whether the assessee is liable to pay service tax under category of "Transportation of Goods through Pipelines/Conduit Services" because the transportation charges are being separately recovered from buyers in addition to the base price of crude oil - The said transportation charges is being recovered in course of sale of crude oil in terms of MOU entered with the buyers for purchase and sale of crude oil - The issue to be decided is in a narrow compass so as to ascertain the status of assessee whether the transportation activity has been undertaken in the capacity of 'service provider' or the 'seller of crude oil' - The question of service tax levy would arise only in the situation covered in former case and not definitely in the later case - The whole purpose of arrangement is to execute the sale transaction in terms of MOU entered by assessee with the customers like Indian Oil Corporation, for purchase and sale of crude oil, sample copies of which are annexed with the appeal paper book - The Commissioner has categorically accepted the fact that the assessee is under contractual obligation to supply and deliver the goods at buyer's premises which has been referred as 'Custody Transfer Point' or the point of delivery - However, he confused the whole matter with the concept of "place of removal" to hold that the transportation charges is not liable to be included in the value of crude oil, which is not the subject matter of dispute herein for the reason that the demand in this case is not on the crude oil but on the transportation charges which though separately recovered is to solely honour the sale transaction by delivering the goods at the buyers premises - The transportation of crude oil has been undertaken by assessee in the capacity of being a seller not a service provider - Further, since there is no service provider - service recipient relationship, there cannot be any question of service tax levy and thus, the demand cannot be sustained - Therefore, the demand of service tax, interest and penalty are set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

CENTRAL EXCISE

2020-TIOL-1369-CESTAT-KOL

HS Builders Vs CCE, C & ST

CX - The assessee is engaged in fabrication of steel tanks for Oil Companies such as M/s Bharat Petroleum Company Ltd., M/s Indian Oil Corporation Ltd. and M/s Indo-Burma Petroleum Company Ltd. as per their specifications - The Department concluded that the assesses have not obtained Central Excise Registration nor have they paid duty on steel tanks, which have been manufactured for aforesaid Oil Companies - SCNs were issued proposing to recover aforesaid short paid duty and impose penalties - While proposing to recover the duty for extended period of limitation in SCNs, no specific allegation of fraud, collusion, willful mis-statement, suppression of facts or violation of provisions of Act and Rules, with an intent to evade payment of duty, has been alleged or evidenced - There is difference of opinion on the issue, whether central excise demand is legally sustainable on merits for the normal period of limitation as held by Member (T) or the entire demand is unsustainable on merits as held by Member (J) - Registry is directed to place the matter before the President to consider referring the same to a third Member to settle the difference of opinion - The only issue on which both the Members have contrary view is, whether the tanks fabricated by assessee are goods and whether they are liable to Central Excise duty - The assessee have manufacture tank in their factory, although some parts of the tanks are finally attached at the buyers' premises only - The impugned goods when left the factory is incomplete and unfinished tanks - But they are still classified as tanks and is liable to excise duty under CETH 73090090 of CETA - The Member(T) has considered the definition of 'goods' and the definition of 'attached to earth' and has rightly relied upon the decision of Apex Court in the case of Solid & Correct Engineering Works 2010-TIOL-25-SC-CX - The issue involved is squarely covered by Division Bench decision of Delhi Tribunal in case of V.D. Engineering relied upon by revenue wherein identical goods were involved - Though the decision was rendered prior to the decision of this case, the same was not brought to the notice of the Bench at the time of hearing the matter - As the ratio of Division Bench decision is squarely applicable in this case, by following the said decision, it is held that the impugned goods are liable to excise duty and the opinion expressed by Member(T) is in accordance with law and the same opinion is upheld - Now the matter may be placed before the concerned Division Bench for further action - In view of the majority decision, Central Excise demand is legally sustainable on merits for the normal period of limitation: CESTAT

- Appeals dispose of: KOLKATA CESTAT

2020-TIOL-1368-CESTAT-MUM

Indian Oil Corporation Ltd Vs CCE

CX - The appellant M/s IOCL, a Public Sector Undertaking, is engaged in manufacture and distribution of Petroleum products - Their three locations were issued with a common SCN alleging that even though their Miraz unit sold Motor Spirit blended with Ethanol and collected duty on whole quantity of Motor spirit including duty on Ethanol, but failed to discharge the excess duty collected on ethanol under Section 11D of CEA, 1944 - It is the allegation of Revenue that M/s IOCL, Vasco at Goa has cleared various petroleum products including motor spirit to their installation at Miraj which is registered as dealer with Central Excise Department - M/s IOCL, Miraj received the duty paid motor spirit from IOCL Vasco as well as from other terminals - The issue arises for determination is, whether the appellants are required to deposit the amount of Rs.75,94,886/- on the quantity of ethanol of 712.290 KL blended with 13533.580 KL of Motor Spirit(Petrol), when the resultant quantity of 14245.850 KL of EBP was sold as Motor Spirit, under Section 11D and interest under Section 11DD of CEA, 1944 - The Miraj unit receives duty paid motor spirit from their manufacturing Unit at Vasco, Goa and also duty paid ethanol from independent distillers - The Motor spirit and ethanol was blended in the ratio of 95:5 at the time of clearance from Miraj unit to the customers in tankers - The price per KL of EBP was similar to the price charged by appellant for unblended motor spirit to the customers - Tribunal do not find merit in the reasoning of Commissioner in confirming the amount under Section 11D of CEA, 1944 - Once it is held that the activity of blending 5% of the ethanol with 95% of motor spirit results into manufacture of motor spirit (EBP), the identity of ethanol is lost in the process of manufacture of the EBP - Therefore, the price charged on the invoices which includes duty at the rate applicable to motor spirit, if not paid is recoverable under Sec. 11A of CEA, 1944 as duty short paid - The approach of theoretically calculating duty on non-excisable portion of the Motor spirit( i.e.ethanol), the raw material used in the manufacture of EBP, and demanding the same under Section 11D of CEA, 1944 cannot be sustained being contrary to the scheme of the Act - The Revenue could not show that the appellant after blending ethanol with duty paid motor spirit collected separately, mentioning the duty on ethanol in the invoices, but not paid to the Government - Therefore, Section 11D of CEA, 19449 cannot be said to have been attracted - Further, Shri Subbaraj in all his statements stated that the duty in invoices prior to the disputed period were shown separately, whereas during the disputed period, it was shown as inclusive of duty - On further being asked by department, he has stated that the resultant EBP which contains 5% of ethanol since not suffered duty but after blending with motor spirit duty was collected on the total quantity of EBP, therefore, the duty attributable to ethanol theoretically in the total duty paid on the price of motor spirit is payable but not paid - No merit found in the said understanding of Shri Subbaraj in stating that excess duty collected is payable but not paid under Sec. 11D of CEA, 1944 because of change in pattern of reflecting duty on the invoice - Therefore, his understanding of applicability of Sec. 11D cannot be the basis for confirming the demand - The impugned orde is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

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