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2020-TIOL-NEWS-243| October 14, 2020
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
For assistance please call us at + 91 850 600 0282 or email us at helpdesk@tiol.in. |
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INCOME TAX |
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2020-TIOL-1714-HC-DEL-IT
Mon Mohan Kohli Vs CIT
In writ, the High Court directs that the Revenue accept the returns filed manually on behalf of the assessee for the relevant AYs be accepted.
- Application allowed : DELHI HIGH COURT
2020-TIOL-1713-HC-KAR-IT
Padmini Products Pvt Ltd Vs DCIT
On appeal, the High Court finds that the issues raised by the assessee are settled in its favor, vide a judgment passed by this very court in the assessee's own case. Hence the present appeal is disposed off accordingly.
- Assessee's appeal disposed of : KARNATAKA HIGH COURT
2020-TIOL-1208-ITAT-MUM
ITO Vs Leena Haresh Harde
Whether any addition on account of unexplained cash credit is permissible u/s 68, when identity and genuineness of the creditors, the nature and source of the alleged loans received is proved - NO: ITAT
- Revenue's Appeal is dismissed: MUMBAI ITAT
2020-TIOL-1207-ITAT-MUM
DCIT Vs ICICI Bank Ltd
Whether in the facts and circumstances of the case, CIT(A) erred in deleting the penalty levied u/s.271(1)(c) - NO: ITAT
- Revenue's appeal dismissed: MUMBAI ITAT
2020-TIOL-1206-ITAT-MUM
DCIT Vs Cascade Holdings Pvt Ltd
Whether in the facts and circumstances of the case CIT(A) is justified in confirming the interest disallowance - No: ITAT
Whether in the facts and circumstances of the case CIT(A) is justified in charging of interest without giving credit for tax deducted at source - No: ITAT
Whether in the facts and circumstances of the case CITA) is justified in capitalising the disallowance of interest made u/s.14A - Yes: ITAT
- Revenue's appeal dismissed: MUMBAI ITAT
2020-TIOL-1205-ITAT-DEL
Dynasty Construction Pvt Ltd Vs ACIT
Whether, CIT(A) is justified in sustaining the disallowance when the same is not made on the basis of any incriminating material found during the course of search - NO: ITAT
Whether CIT(A) is justified in sustaining the additions made by the AO, when the assessment order is void ab initio - NO: ITAT
- Assessee's appeal allowed: DELHI ITAT
2020-TIOL-1204-ITAT-DEL
Dart Infrabuild Pvt Ltd Vs ITO
Whether the serving of re-assessment notice by way of a fixture at the old address qualifies as proper service – NO : ITAT
Whether a new of service of notice under section 143(2) has to be issued if the return of income filed by the assessee in reponse to notice u/s 148 is rejected – YES : ITAT
- Assessee's appeal allowed: DELHI ITAT
2020-TIOL-1203-ITAT-BANG
Crown Home Engineers Pvt Ltd Vs ACIT
Whether the assessee is entitled to claim deduction if it has commenced its business by entering into agreement with the landlord with requisite licence and got permission from administration - YES : ITAT
- Assessee's appeal partly allowed: BANGALORE ITAT
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GST CASES |
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2020-TIOL-1719-HC-KERALA-GST
Uday Events And Innovations Vs Secretary
GST - Section 27 of the CGST Act, 2017 - Petitioner, a casual trader, had obtained Ext.P1 registration for the period from 25.2.2020 to 31.03.2020, and during the said period, the petitioner had conducted certain events in the course of his business - Petitioner had also issued GST invoices to its clients for the services rendered - It is stated that on account of the Covid-19, the petitioner firm could not complete the entire work by 31.03.2020 and further, could not apply for an extension of the registration online for another 90 days, since it was not able to access the online portal owing to the expiry of its registration - The limited prayer in the writ petition is for a direction to the respondent to grant a short extension of the registration.
Held: No doubt, the period of extension permitted under the statute is already over, but Bench is of the view that the petitioner cannot be faulted for his inability to access the system for the purposes of seeking an extension of the registration period - Thus, by excluding the period during which the petitioner could not access the system for extension of his registration, Bench deems it appropriate to direct the respondent to extend the registration period of the petitioner for a period of two weeks so that the petitioner can, during the said period, upload the details of the invoices raised by him as also details of the input tax credit claimed by him under the GST Act - The respondent shall do the needful to facilitate the said exercise by the petitioner within the said period of two weeks - Petition disposed of: High Court [para 3]
- Petition disposed of: KERALA HIGH COURT
2020-TIOL-1718-HC-DEL-GST
Parag Garg Vs UoI
GST - Petition has been filed seeking a declaration that Sections 69 and 132 of the CGST Act, 2017 are arbitrary, unreasonable and beyond the legislative competence of the Parliament as well as ultra vires the Constitution - Petitioner also prays that Crl.M.C. No.5853/2019 as well as Crl M.C. No.1916/2019, which have been filed by the respondents for cancellation of petitioner's bail, be adjudicated subject to the outcome of the present petition.
Held : Keeping in view the order dated 20th August, 2020 [ 2020-TIOL-1401-HC-DEL-GST ] passed by this Court in W.P(C) No.5454/2020, it is directed that no coercive action be taken against the petitioner till further orders and bail of the petitioner shall not be cancelled in the aforesaid cases - Matter is to listed along with WP(C) 5454/2020 on 18th November, 2020: High Court [para 8, 9]
- Matter listed: DELHI HIGH COURT
2020-TIOL-1717-HC-KERALA-GST
Asharaf Ali K H Vs Assistant State Tax Officer
GST - Petitioner contends that the alleged mis-classification of the goods cannot be a reason for detaining the consignment under Section 129 of the GST Act.
Held: If the respondents feel that there has been a mis-classification of the goods, then it is for them to prepare a report based on the physical verification done by them, get the petitioner to sign on the same after recording his objections, if any, to the findings recorded therein, and thereafter forward a copy of the said report to the Assessing Officer of the petitioner, who can consider the said report and objections at the time of finalising the assessment in relation to the petitioner - The detention of the goods in transit, therefore, cannot be justified - Ext.P7 notice quashed and the respondents directed to forthwith release the goods and vehicle: High Court [para 3]
- Petition allowed: KERALA HIGH COURT | |
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MISC CASE |
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INDIRECT TAX |
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SERVICE TAX
2020-TIOL-1510-CESTAT-MUM
BG Exploration & Production India Ltd Vs CST
ST - The appellant is engaged in exploration, development and production of hydrocarbons in Panna-Mukta and the Mid-South Tapti fields within the framework of 'production sharing contract' (PSC)' entered into by Government of India with M/s ONGC, M/s Reliance Industries Ltd and themselves - Essentially, the monopoly over naturally occurring hydrocarbon resources, retained with the Central Government by constitutional prerogative, was offered to corporate entities both domestic and foreign for development and recovery in which the risks transferred to the contractors was compensated by 'cost petroleum' to be shared among the three before Government of India was entitled to a share of 'profit petroleum' with the three co-venture partners - Vide circular 179/5/2014-ST , the CBEC clarified that, consequent upon broadening of taxable 'service' in 'negative list' regime implemented from 1st July 2012, transactions between 'joint venture' and constituents of such 'joint venture', akin to the distinguishment of 'unincorporated association' or 'body of persons' from its members thereof as provided for in Explanation 3(a), below section 65B (44) of FA, 1994 defining 'service', are also to be deemed as service provided for consideration and liable to tax under FA, 1994 - It, therefore, devolves upon Tribunal to ascertain if the clarification issued by CBEC is in harmony with the intent of Explanation (3) below section 65B (44) of FA, 1994, if the 'joint operation agreement' is a 'joint venture' to which the clarification would apply and if it was correct to conclude that the expenditure booked by appellant was consideration for rendering of taxable service - In the impugned 'production sharing contract', Government of India brings in its rights over the resources, M/s ONGC handles contracts and documentation, M/s Reliance Industries Ltd manages financial and commercial requirements and the appellant vested with responsibility for technical operations - The deployment of personnel is in pursuance of that obligation - No business venture can function without capital and the by-passing of transubstantiation of accumulated capital, in the form of cash and bank balances, into these rights and competencies does not derogate from that - Hence, the activity undertaken by appellant with its cost equivalence recorded in the books is nothing but capital contribution - The adjudicating authority has erred in concluding that the mechanism of 'cash call' prescribed in the 'joint operations agreement' is consideration for services; it is intended as the vehicle for contribution by participating interests to the capital requirements of the venture - As such capital contributions are obligated for establishment and operation of a business venture, it is not 'consideration' for rendering of any taxable service - It is parties to the 'production sharing contract' who constitute a joint venture and that the Explanation below section 65B (44), intended to cover supply of services to a constituent of 'unincorporated associations' or 'body of persons' by the latter is not relevant to the present dispute - Further, the fulfilment of obligation to contribute to the capital of the joint venture is beyond the scope of taxation under Finance Act, 1994 as it does not amount to consideration - The performance of such obligations is intended to serve itself and, thereby, the joint-venture - As the demand confirmed in impugned order is not on the consideration for rendering of a service, Tribunal is not required to decide on the other issues: CESTAT
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1509-CESTAT-DEL
CC, CE & ST Vs EWDPL
ST - The assessee is engaged in providing services of renting of immovable property services on lease and licence basis - Service tax on renting of immovable property was proposed w.e.f. 1.6.2007 vide notfn 23/2007-ST - The Commissioner has given cogent reasons and has recorded the findings that there is no deliberate default on the part of assessee in not depositing the service tax - In this view of the matter, Tribunal uphold the non-levy of penalty under Section 78 and also dropping of the demand of service tax amounting to Rs.58,85,465/- , in view of the stay granted by Supreme Court, being Interim Order in the case of Retailers Association of India 2011-TIOL-104-SC-ST - In view of the provisions of Section 76, which provides for levy of penalty, where a person is liable to pay service tax, fails to pay such tax and further, Section 80 provides that where such failure is for reasonable cause, no penalty shall be imposed under Section 76, 77 and 78 of the Finance Act - There being reasonable cause for late payment of service tax, the penalty under Section 76 is set aside - Accordingly, the appeal filed by the Revenue is dismissed: CESTAT
- Appeal dismissed: DELHI CESTAT
CENTRAL EXCISE
2020-TIOL-1506-CESTAT-MUM
CCGST Vs Ajay Bio Tech India Ltd
CX - The respondent has filed the miscellaneous applications, seeking for restoration of appeal and rectification of mistake in 2018-TIOL-2787-CESTAT-MUM passed by this Tribunal - There is no delay in filing the miscellaneous application for restoration of appeal inasmuch as upon receipt of the Final Order in 2018-TIOL-2787-CESTAT-MUM , the respondent had filed the appeal before Bombay High Court, which was withdrawn with liberty to file a rectification application before the Tribunal - Hence, the miscellaneous application is disposed of holding that there is no delay in filing the said application before the Tribunal - With regard to the other miscellaneous application filed for rectification of mistake, the submissions made in the said miscellaneous application was considered by Tribunal in Final Order dated 28.05.2018 in specifically observing at paragraph 5 therein that during the disputed period 2005-06, the respondent did not refund the disputed duty amount to its buyers - Such findings were recorded by Tribunal upon examination of the relevant documents including the invoices available in the case file during the course of hearing of appeal - Thus, it cannot be said that there is apparent mistake in the said order passed by Tribunal, which can be rectified as prayed for by the respondent - Thus, there is no merit in the miscellaneous application filed for rectification of mistake - Accordingly, the said application is dismissed: CESTAT
- Applications disposed of: MUMBAI CESTAT
2020-TIOL-1505-CESTAT-MUM
Nucleus Technologies Vs CCE
CX - Appeal of the assessee, M/s Nucleus Technologies, is brought to a closure by recourse to Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and upon issue of discharge certificate contemplated in section 127 of Finance Act, 2019, issued by the competent authority - Accordingly, the appeal is dismissed as deemed to be withdrawn: CESTAT [para 1]
CX - Appeal filed by the Managing Partner lies against the imposition of penalty of Rs. 1,00,000 under rule 209A of erstwhile CER, 1944 that has been upheld by the first appellate authority - Appellant contends that he was in no way involved with the physical handling of the goods that were allegedly removed without payment of duty.
Held: Any of the enumerated activities in rule 209A of the erstwhile Central Excise Rules, 1944 must necessarily involve physical handling - in the circumstances of the lack of evidence of physical dealing by the appellant of the impugned goods, the penalty is set aside and the appeal is allowed: CESTAT [para 5, 6]
- Appeal allowed: MUMBAI CESTAT
CUSTOMS
2020-TIOL-1508-CESTAT-MAD
CC Vs Sarvam Safety Equipments Pvt Ltd
Cus - The only grievance of Revenue is against the finding of First Appellate Authority as to the said authority holding that the Revenue's first appeal filed before him was time-barred since, according to him, the O-I-O should have been reviewed within a period of three months - The First Appellate Authority, though has observed the date of passing of O-I-O as 23.01.2019, has not considered the date affixed by signatory of the order - Moreover, the First Appellate Authority has considered the date of dispatch as 12.02.2019 whereas as per Section 129D (3) ibid., what is relevant is the date of communication i.e., Review Order to be passed within a period of three months from the date of communication - Hence, if the date of communication is 11th March 2019, then the Review Order passed on 10.06.2019 is very much within the time-frame fixed by the statute - The Revenue is also one of the litigants before this court and that being so, it cannot sit in the driver's seat - First of all, the crucial aspect which is creating suspicion in the mind, is as to the date of communication (11.03.2019) when the order was signed on 04.02.2019, has not at all been explained nor is the Revenue disputing the contentions of assessee that the office of Adjudicating Authority as also that of Reviewing Authority are located in the same premises - There is also no further explanation as to the date of dispatch/communication that has taken about a month when undisputedly, both the authorities are in the same building premises - The explanation now placed by Revenue is rejected - The appeal being devoid of merits is rejected: CESTAT
- Appeal rejected: MUMBAI CESTAT
2020-TIOL-1507-CESTAT-MUM
Daikin Air Conditioning India Pvt Ltd Vs Pr CC
Cus - The issue relates to revised classification, adopted by customs authorities on the import of 'split air-conditioners', with consequent denial of exemption from basic customs duty - The impugned order has directed recovery as differential duty under section 28 of Customs Act, 1962, besides imposing penalty of like amount under section 114 A of Customs Act, 1962 - The exemption that was denied is available to all goods, corresponding to sub-heading 841510 of First Schedule to CTA, 1975 at serial no. 49 in notfn 85/2004-Cus on import from Thailand - The classification declared by assessee at the time of import corresponds to the description of 'split system' and the scope of 'split system' is elaborated in subheading notes in Explanatory Notes to the Harmonised System of Nomenclature - From this, it can be inferred that the description corresponding to sub-heading 841510 is intended for 'window' and 'split system' air-conditioning machines - In this dispute, Tribunal is not concerned with the former and it merely suffices to note that the residuary description, corresponding to tariff item no. 84151090, would cover all 'window' type air conditioners - As far as 'split systems' are concerned, the segregation of the system into an external condenser and an internal evaporator is its most basic characteristic - If the presumption of cooling capability existing only with refrigerant units, as it appears in impugned order, is unquestioned, the source of cooling in the goods, to which tariff item no. 84151010 applies, appears to have been glossed over deliberately - Undoubtedly, every article under heading no. 8415 has to have a cooling facility - Nevertheless, the adjudicating authority set out with the assumption that, irrespective of cooling equipment in 'split systems', the cooling system in impugned goods was a refrigerant unit - Neither is there any ground for such supposition in SCN nor is there reason to conclude that the cooling source in 'split system' was absent in impugned goods and substituted by another - There is no descriptive restriction in sub-heading no. 841510 to conclude that heating capability is not intended for coverage by that tariff entry - The impugned order has failed to exclude applicability of description of 'split systems' to the impugned goods which would have entailed some knowledge of what that is - 'Split systems' are air conditioners that have two parts and these operate together to cool space - Likewise, it may heat space also without compromising conformity with the description corresponding to heading no. 84151010 of the First Schedule to CTA, 1975 - It is only by exclusion from this description that the impugned order could have attempted an alternative classification - The General Rules of Interpretation, with emphasis on hierarchical elimination of non-conformity, precluded classification of impugned goods under the general residuary description when conformity with the specific is not established as incorrect - The impugned goods are classifiable under tariff item no. 84151010 of First Schedule to CTAt, 1975 - The impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
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