2021-TIOL-NEWS-005, Dated:Wednesday, January 06, 2021

2021-TIOL-NEWS-005| January 06, 2021

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INCOME TAX


	2021-TIOL-40-HC-MAD-IT CIT Vs J Ashok Kumar and Sons On appeal, the High Court finds that the assessee seeks settlement of the matter under the Direct Tax Vivad Se Vishwas Scheme 2020. Hence it finds no reason to keep the present appeal pending. It also directs the Competent Authority to consider the assessee's application under the Scheme and pass order accordingly. -Revenue's appeal disposed of :MADRAS HIGH COURT 2021-TIOL-37-HC-MAD-IT Health & Glow Retailing Pvt Ltd Vs ACIT On appeal, the High Court observes that the assessee seeks settlement of the matter under the Direct Tax Vivad Se Vishwas Scheme 2020. Hence it finds no reason to keep the present appeal pending. It also directs the Competent Authority concerned to consider the assessee's application under the Scheme & pass order accordingly. - Assessee's appeal disposed of: MADRAS HIGH COURT 2021-TIOL-36-HC-MAD-IT K Srikanth Vs ACIT On appeal, the High Court acknowledges the assessee's request to seek resolution of the matter under the Direct Tax Vivad Se Vishwas Scheme 2020. Hence it finds no purpose in keeping the present appeal pending. It also directs the Competent Authority to consider the assessee's application under the Scheme and pass order accordingly. - Assessee's appeal disposed of: MADRAS HIGH COURT 2021-TIOL-35-HC-MAD-IT Thiru M O H Farook Vs ACIT Whether deduction u/s 48 can be provided to the assessee when the sale consideration was paid directly to the company towards the loan from the bank taken for purchasing the property - NO: HC - Assessee's appeal dismissed: MADRAS HIGH COURT 2021-TIOL-34-HC-KERALA-IT Moidus Medicare Pvt Ltd Vs DCIT Whether application for rectification of mistake is rightly rejected where the assessee puts forth no additional evidence or material in support thereof - YES: HC Whether the High Court can assume the role of an appellate court, when the matter is amenable to appeal under provisions of the I-T Act - NO: HC - Assessee's writ petition dismissed: KERALA HIGH COURT 2021-TIOL-33-HC-KERALA-IT Uzhuva Service Cooperative Bank Ltd Vs ITO Whether the Tribunal without considering the merits can dismiss an appeal merely on the basis of non-prosecution - NO: HC - Assessee's writ allowed: KERALA HIGH COURT 2021-TIOL-32-HC-AHM-IT CIT Vs Vyakti Vikas Kendra India On appeal, the High Court directs that notices be issued to the parties concerned. - Case deferred: GUJARAT HIGH COURT 2021-TIOL-36-ITAT-DEL Shruti Buildcon Pvt Ltd Vs DCIT Whether assessment order passed u/s 153C can be held valid when there was no incriminating material found during the search at the third party's premises - NO: ITAT - Assessee's appeal allowed: DELHI ITAT 2021-TIOL-35-ITAT-MUM Vinay Giridhari Motwani Vs ACIT Whether penalty levied u/s. 271(1)(c) can be imposed when Assessing Officer did not strike off and specify the charge/limb for which he is proposing to initiate the penalty proceedings - NO: ITAT - Assessee's appeal allowed: MUMBAI ITAT 2021-TIOL-34-ITAT-CHD Adish Oswal Vs DCIT Whether addition u/s 68 can be made for the long term capital gains earned by the sale of shares when assessee has failed to prove the genuineness of transaction - NO: ITAT - Assessee's appeal allowed: CHANDIGARH ITAT 2021-TIOL-33-ITAT-BANG Mahendra B Chowhan Vs ACIT Whether penalty can be levied on defective show cause notie u/s 274 - NO: ITAT - Assessee's appeal allowed: BANGALORE ITAT 2021-TIOL-32-ITAT-AHM DCIT Vs Rajamannar Whether excess salary refunded as per the provisions of law will added to the taxable to income of the assessee - NO: ITAT - Revenue's appeal dismissed: AHMEDABAD ITAT 2021-TIOL-31-ITAT-AHM Deem Roll Tech Ltd Vs DCIT Whether assessee cannot be penalized and no additions can be made in his hands u/s 68 for the inaction of Revenue to carry inquiry in respect of genuineness of transaction - YES: ITAT - Assessee's appeal partly allowed: AHMEDABAD ITAT 2021-TIOL-30-ITAT-AHM DCIT Vs Sterling Enterprises Ltd Whether disallowance can be made by the AO merely because he is now dissataified with the assessee's accounting method which was earlier accepted by the Revenue - NO: ITAT - Revenue's appeal dismissed: AHMEDABAD ITAT 2021-TIOL-29-ITAT-JAIPUR DCIT Vs Rajendra Kumar Kedia Whether addition on account of unaccounted investment can be made on the basis of estimation notings found during search operation - NO: ITAT - Revenue's appeal dismissed: JAIPUR ITAT

GST CASES


	2021-TIOL-46-HC-KERALA-GST Asa Stores Vs Asst. State Tax Officer GST - Petitioner is engaged in the supply of hill produce including cardamom - consignment for the purpose of auction sale comprising 13 bags of cardamom, weighing 658 kgs having an estimated value of Rs.12.5 lakhs was intercepted by the 1st respondent and Ext.P7 notice issued to them, for the reason that the supplier has not produced documents matching with its original destination - Petitioner prays that Exts.P7 and P8 be set aside and the respondents be directed to release the consignment, along with the vehicle - Respondent submitted that Ext.P7 notice and P8 proceedings have been issued under a bonafide suspicion that the petitioner is attempting to use the same E-Way bill for different consignments, involving multiple transactions, thus leading to a legitimate inference of evasion of tax. Held: Bench directs the petitioner to furnish a bank guarantee drawn on a nationalised Bank, to secure the sum mentioned in Ext.P7 notice; and if this is done, the respondents shall release the consignment, along with the vehicle to them without any avoidable delay Respondents shall complete the adjudication based on Exts.P7 and P8 - leading to the proceedings under Form MOV-09, after affording an opportunity of being heard to the petitioner as expeditiously as is possible since the article in question is a perishable one, but not later than two weeks: High Court [para 5] - Petition disposed of : KERALA HIGH COURT 2021-TIOL-45-HC-KERALA-GST Ramesh Iron And Steel Company Pvt Ltd Vs State Tax Officer GST - Petitioner contends that his vehicle was detained under Section 129(1) on the ground that there was a violation of Rule 138 of the GST Rules, since the E-Way bill issue had expired few hours before the vehicle was detained - Petitioner challenges the order passed u/s 129(3) of the Act. Held: Section 129 is a complete code in itself - When the procedure required under the said provision has been apparently followed, an interference under Article 226 is not warranted - Since after detention, Ext.P6 notice was issued and an order was passed after giving an opportunity of being heard, Court is prima facie of the view that this is not a fit case to invoke Article 226 of the Constitution of India - In such circumstances, it is ideal to relegate the petitioner to the appellate remedy available under Section 107 of the Act - However, since the goods have been detained and have been lying under detention, the same can be released if the petitioner furnishes a bank guarantee, for the amount demanded in Ext.P8 within one week – Petition disposed of: High Court [para 4, 5] - Petition disposed of : KERALA HIGH COURT 2021-TIOL-42-HC-KERALA-GST Kala Imaging World Vs Supt CT & CE GST - Petitioner, in the application that he had preferred for cancelling the registration, had inadvertently shown the reason for cancellation as 'discontinuance of business/ closure of business' whereas, in fact the reason ought to have been, "transfer of business on account amalgamation, merger, demerger, sales, lease or otherwise" - On realising the mistake, the petitioner contacted the first respondent and sought for a change of the reason - 1st respondent then informed him through Ext.P8 communication that the change of reason could not be carried out through the system in an order that had already been passed cancelling a registration - therefore, petitioner is before the High Court. Held: It is apparent from the sequence of events narrated in the writ petition that the original cancellation of registration, on the ground that there was a closure/discontinuance of business, was an erroneous one, in that the petitioner had erroneously chosen the said reason instead of the actual reason, which was the transfer of business to an another entity - 1st respondent cannot plead helplessness in the matter of correction of an apparent mistake that occurred while making an application for cancellation of registration - Bench is of the view that the 1st respondent should take steps to change the reasons for cancellation of registration of the petitioner to 'transfer of business on account amalgamation, merger, demerger, sales, leased or otherwise' and issue a fresh order of cancellation of registration citing the above as a reason for the cancellation within a period of one month - On receipt of the said order of cancellation of registration, it would be open to the petitioner to apply for a transfer of the accumulated input tax credit in favour of the new business entity to which his business was transferred - Petition disposed of: High Court [para 3] - Petition disposed of: KERALA HIGH COURT

MISC CASE


	2021-TIOL-01-SC-MISC Rajeev Suri Vs Delhi Development Authority Development Act - Change in land use - Rule of Law - Central Vista Project - Environmental Clearance - Heritage Committee - Non-disclosure of project information - Construction of New Parliament Building - re-development - judicial scrutiny Petitioners plead lack of information in public domain about the details of the Central Vista Project and also alleges violations of heritage conservation guidelines. Apex held that, ++ Central Govt to make public adequate information, including layouts and drawings on the web; ++ Public can file objections and Heritage Conservation Committee to hold public hearing without adjournment and pass a speaking order; ++ EAC order set aside and a fresh order is to be issued. - Case disposed of : SUPREME COURT OF INDIA 2021-TIOL-39-HC-MAD-VAT Balamurugan Stores Vs Assistant Commissioner In writ, the High Court observes that it would have been appropriate for the assessee to have challenged the orders of assessment passed originally immediately thereafter and within the period of 30 days granted in this regard, which time frame was not availed by the assessee. Hence the orders passed by the Revenue are set aside, conditional upon the assessee depositing 25% of the duty demanded, within 3 weeks' time. -Writ petition disposed of :MADRAS HIGH COURT 2021-TIOL-38-HC-MAD-VAT Servo Packaging Ltd Vs Assistant Commissioner Whether additional C Forms submitted can be considered to revise and compute fresh demand after giving credit in appropriate cases - YES : HC -Writ petition disposed of :MADRAS HIGH COURT

INDIRECT TAX


	2021-TIOL-47-HC-MUM-CUS Raj Grow Impex Llp Vs UoI Cus - When the High Court had directed release of the goods forthwith, it is beyond comprehension as to how a lower appellate authority can nullify such direction by ordering absolute confiscation of such goods - It is not only unacceptable but contumacious as well which aspect Bench may deal with at a later stage - Operation of the order dated 24th December, 2020 is stayed until further orders - Respondent Nos.3 and 4 shall comply with the directions of this court dated 15th October, 2020 and 9th December, 2020 [ 2020-TIOL-2159-HC-MUM-CUS ] - Matter to be listed on 27th January, 2021, on which date Counsel for Revenue shall inform the court about compliance of today's order: High Court [para 6 to 9] -Order stayed :BOMBAY HIGH COURT 2021-TIOL-44-HC-MP-CUS Rajesh Garg Vs Asstt CC Cus - Petitioner has prayed for issuance of a writ, order or direction in the nature of mandamus to the respondents to pass the "out of charge" order for Home Consumption under Section 47 of the Customs Act, 1962 in respect of the goods under Bill of Entry dated 23/9/2020 - Respondents have filed a reply and have enclosed order dated 8/10/2020 (passed u/s 110A of the Customs Act, 1962) which is in respect of seizure of the goods and the stand of the respondents is that the petitioner is having a remedy u/s. 129A of the Customs Act, 1962 to prefer an appeal. Held: Undisputedly, the adjudicating authority has passed an order u/s 110A of the Customs Act, 1962 - As there is a remedy of appeal, without averting to the merits of the case, the present petition is disposed of with a liberty to the petitioner to prefer an appeal in accordance with law: High Court - Petition disposed of: MADHYA PRADESH HIGH COURT 2021-TIOL-43-HC-MP-CUS Rahul Rajvaidya Vs C, CE & ST Cus - The present review petition is arising out of judgment dated 30/09/2019 passed by this Court in OTA No.04/2019 - This Court has upheld the order passed by the Tribunal as the mandatory requirement of pre-deposit as provided under Section 129(3) of the Customs Act, 1962 has not been fulfilled - The other important aspect of the case is that in another connected matter also similar order has been passed dismissing the appeal - There is no error apparent on the face of the record warranting review - In the present case, there is no error apparent on the face of the record and the petitioner, in fact, under the guise of review is challenging the order passed by this Court, which is under review - In the present case the petitioner has not been able to point out any error apparent on the face of the record, on the contrary this Court has decided the case on merits – Supreme Court has held that re-appreciation of evidence and rehearing of case without there being any error apparent on the face of the record is not permissible in light of provisions as contained U/s 114 and Order 47 Rule 1 of Code of Civil Procedure, 1908 - Court does not find any reason to review the order dated 30/09/2019 passed in OTA No.04/2019 - The Review Petition is accordingly dismissed: High Court [para 2 to 5] - Petition dismissed: MADHYA PRADESH HIGH COURT 2021-TIOL-41-HC-P&H-NDPS Gopal Singh Vs State of Punjab NDPS - Petitioner seeks quashing/setting aside of order dated 17.11.2018 whereby the application for release of car bearing registration No.PB-31-P-0307 on Sapurdari was dismissed by the Judge, Special Court. Held: If the car in question is retained on the ground of being case property liable to confiscation and kept idle in the police station, then the same is likely to be converted into junk - Any public auction of the car in question is not only likely to take long time but may also not fetch amount higher than the reserved price - In case the car in question is released on sapurdari on usual terms and conditions to be returned on confiscation, passing of final order for confiscation of the car in question may also take such long time that the car in question may become wholly unserviceable, complete junk and of no use for being taken over by the state on such confiscation - In these facts and circumstances, it will be appropriate that the car is released on sapurdari to the registered owner on additional conditions, besides usual terms and conditions that the registered owner will not use or allow any person to use the car in question at the time of its seizure for commission of any offence including offence under the NDPS Act and that he will deposit the market price of the car in question as determinable under the Income Tax Act/Rules in case of passing of order for its confiscation under section 60 of the NDPS Act - Present revision petition is allowed: High Court [para 11, 12] - Petition allowed: PUNJAB AND HARYANA HIGH COURT 2021-TIOL-22-CESTAT-MUM Novartis Healthcare Pvt Ltd Vs Commissioner of CGST ST - Refund - Rule 5 of CCR, 2004 - There is no discussion about the contentions raised by the appellants and in the impugned order there are no proper reasonings/ findings as to how the part of the refund claim was disallowed - From the impugned order, it is not possible to know the reasoning for rejection of the part of refund claim - Commissioner ought to have discussed the relevant facts and given reasonings while rejecting part of the refund amount claimed by the appellants but Bench does not find any such discussions in the impugned order - In these circumstances, Bench is left with no other option but to remand the Appeals back to the Commissioner for deciding afresh limited to the issues raised in the instant Appeals because for the refund allowed by the Commissioner, no appeal was filed and it attained finality - Matter remanded: CESTAT [para 4] - Matter remanded : MUMBAI CESTAT 2021-TIOL-21-CESTAT-MUM IDFC Bank Ltd Vs Commissioner of CGST ST - Appellant is engaged in providing banking and various financial services in India - Insurance service provided by the Deposit Insurance and Credit Guarantee Corporation (DICGC) to the banks for insuring the deposits of the public with the banks is an 'Input service' in terms of rule 2(l) of CCR - CENVAT credit of the service tax paid by the banks for this service can be availed by the banks for rendering output service - In view of the Larger Bench decision in South Indian Bank - 2020-TIOL-861-CESTAT-BANG-LB holding as above, appeal filed by the appellant stands allowed: CESTAT [para 4, 5] - Appeal allowed : MUMBAI CESTAT 2021-TIOL-16-CESTAT-CHD R Ess Iron And Steel Pvt Ltd Vs CCE & ST CX - The miscellaneous application has been filed by assessee for modification of stay order passed by Tribunal on 14.07.2014 - Thereafter, an application was filed for early hearing of application for modification of the said application - After that, an application was filed for compliance of the order dt. 20.05.2013 of this Tribunal - On perusal of records vide order dt. 20.05.2013, the respondent was directed to supply the copy of documents to assessee - Thereafter, the stay application was heard by Tribunal on 14.07.2014 - Thereafter, this Tribunal disposed of the stay application as well as the miscellaneous application for supply of documents and directed the assessee to make a pre-deposit of Rs. 50 lakhs towards duty and Rs. 10 lakhs towards penalty - The said order of Tribunal was challenged by assessee before High Court of Punjab & Haryana - As the matter is seized with High Court and there is a direction to Tribunal not to dispose of the appeal on account of non-deposit in terms of Section 35F of CEA, 1944, therefore, Tribunal decline to entertain the miscellaneous applications filed by both the sides till disposal of the matter by High Court of Punjab & Haryana: CESTAT - Applications dismissed: CHANDIGARH CESTAT 2021-TIOL-15-CESTAT-ALL Mukesh Mahesh Kumar Kothari Vs CC Cus - The appellant carries on business in the name and style of M/s Orbit Gold as sole proprietor - Case of Department is that the appellant used to receive gold jewellery from one Bharat Jagda, which jewellery had been removed by Ajit Singh without payment of duty - The premises of appellant was searched by officers of DRI and assorted gold jewellery weighing 1912.500 grams valued at approximately Rs. 19,08,000/-, gold bars and coins weighing 5207 grams valued at approximately 73,50,000/- and Indian currency of Rs. 3,19,400/- were seized - The appellant claims that during investigation he was "made to admit that his father received imported jewellery weighing 59 kgs from the said Mr. Bharat Jagda on which no duty was paid and which was sold through the appellant's firm" and that "he was also made to deposit Rs. 1,00,00,000/- towards alleged duty payable on the jewellery received by appellant" - The issue, therefore, that arises for consideration is whether non-consideration of a submission relevant to the issue for determination which was placed before the Tribunal, can be said to be a mistake apparent from the record so as to be rectified under Section 35C(2) of the Act - This issue was examined by Supreme Court in Saurashtra Kutch Stock Exchange Ltd. 2008-TIOL-170-SC-IT - It is pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record - It should be pertinent and self-evident and not require any elaborate discussion of evidence or argument - It was also observed that rectification of an order stems from the fundamental principle that justice is above all and it is to be exercised to remove the error and to disturb the finality - It would, therefore, be appropriate to rectify the error that is apparent on the record by setting aside that part of order passed by Commissioner that appropriates an amount of Rs. 1,00,00,000/- deposited by appellant during investigation towards the tax dues on M/s Ajit Exports - The application filed for rectification of mistakes in the final order is accordingly, disposed of with directions that in the third line of paragraph 25 of Final Order, Rs. 60 lakhs shall be deleted and shall be replaced by Rs. 60 thousand and that part of the order dated October 18, 2018 that directs for appropriation of Rs. 1,00,00,000/- deposited by appellant during investigation is set aside: CESTAT - Appeal allowed: ALLAHABAD CESTAT

HIGH LIGHTS (SISTER PORTAL )


	TII I-T - Addition on account of attribution of profits in the hands of non-resident can be made when the commision paid is accepted to be on arm's length basis : ITAT TIOLCORPLAWS PMLA - Order passed by Appellate Tribunal is cryptic, sketchy and non-speaking - There appears to be non-application of mind, rendering the order liable to be set-aside: HC NCLAT - The service of advance copy of application filed under IBC to Corporate Debtor cannot be deemed to be 'Service of Notice' in application and any order passed ex parte without hearing corporate debtor is such senario is bad in law : NCLAT

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