2021-TIOL-63-HC-DEL-IT

Brijbasi Education And Welfare Society Vs Pr.CIT

Whether addition u/s 68 can be made by reopening of assessment on the basis of same doubtful donations, which were held genuine during the original course of assessment - YES: HC

- Assessee's appeal dismissed : DELHI HIGH COURT

2021-TIOL-62-HC-MAD-IT

Pr CIT Vs Khushbu Devi Rank

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-61-HC-MAD-IT

SZ Mushahida Parveen Vs ITO

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. However, should the assessee not seek settlement under the Scheme, the assessee would be at liberty to restore the present appeal.

- Assessee's appeal disposed of: MADRAS HIGH COURT

2021-TIOL-60-HC-MAD-IT

Seshasayee Paper & Boards Ltd Vs UoI

Whether an assessment which has already been considered in two earlier rounds of litigation can be reopened again without any new tangible material for reassessment - NO: HC

- Assessee's appeal allowed: MADRAS HIGH COURT

2021-TIOL-59-HC-MAD-IT

Akshya Infrastructure Pvt Ltd Vs CIT

In writ, the High Court observes that the assessment of liability for income tax of M/s Stylog Infrastructure Private Limited has been quashed by the Tribunal & the matter was remitted for fresh determination. Hence it finds that the orders raising demand for payment from the assessee would not survive.

- Writ petitions disposed of: MADRAS HIGH COURT

2021-TIOL-53-ITAT-DEL

Des Raj Khurana Vs ACIT

Whether late fee can be charged on TDS returns filed for period prior to amendment brought in by the Finance Act, 2015 w.e.f 01.06.2015 by way of insertion of clause (c) to section 200A(1) - NO: ITAT

- Assessees' appeals allowed: DELHI ITAT

2021-TIOL-52-ITAT-DEL

Sahni Pipes Pvt Ltd Vs ACIT

Whether the CIT(A) is statutorily obligated to decide the appeal on merit and cannot dismiss the appeal on account of non-prosecution - YES: ITAT

- Case remanded: DELHI ITAT

2021-TIOL-51-ITAT-DEL

Ruchi Mahajan Vs ITO

Whether re-assessment proceedings merit being sustained where the AO has obtained tangible information pointing towards escapement of income from taxation & when there is proper application of mind by the AO when resorting to such proceedings - YES: ITAT

Whether it is fit case for remand where the AO computes 1% profit from trading of Gold, without specifying the basis for arriving at such figure - YES: ITAT

- Assessee's appeal partly allowed: DELHI ITAT

2021-TIOL-50-ITAT-MUM

ITO Vs Anand Prakash Diwan

Whether bogus purchases supposedly made from the grey market, need not be disallowed in entirety & additions warrant being framed only in respect of the profit element embedded therein - YES: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2021-TIOL-49-ITAT-MUM

Kunal Govind Kataria Vs DCIT

Whether it is correct to differentiate businesses carried out in commodity derivatives on two different exchanges only on the basis of CBDT notification issued u/s 43(5) – NO: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2021-TIOL-48-ITAT-MUM

Cigna Health Solutions India Pvt Ltd Vs ITO

Whether profit embedded in the development infrastructure can be assessed in assessee's hands when assessee has not eared any income on the same - NO: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2021-TIOL-47-ITAT-CHD

Ramesh Kumar Dudani Vs DCIT

Whether penalty u/s 271(l)(c) can be levied when both the charges inaccurate particulars of income and concealment of income are mentioned for the levy of penalty - NO: ITAT

- Assessee's appeal allowed: CHANDIGARH ITAT

2021-TIOL-46-ITAT-BANG

ACIT Vs GMR Infrastructure Ltd

Whether it is a fit case for remand where the CIT(A) did not consider the validity of search assessment conducted u/s 153A, when no material incriminating the assessee was recovered during Search proceedings - YES: ITAT

- Case remanded: BANGALORE ITAT

2021-TIOL-02-SC-GST-LB

Devendra Dwivedi Vs UoI

W.P.( Crl ) No.272/2020, 273/2020 and 276/2020

GST - Petitioner seeks the permission of the Court to withdraw the petitions with liberty to move the High Court in appropriate proceedings - Writ petitions are dismissed as withdrawn with liberty as prayed: Supreme Court Larger Bench [para 1, 2]

W.P.( Crl .) No. 298/2020

GST - Petitioner challenges the constitutional validity of certain provisions of the Central Goods Service Tax Act, 2017 ; seeks a direction for compliance with the procedure for investigation enunciated in Chapter XII of the Code of Criminal Procedure 1973; and for declaring the investigations which have been instituted against the petitioner as illegal.

Held: Bench finds that on 10 April 2019, a Bench of three-Judges declined to entertain Writ Petition ( Crl ) Nos. 107 and 108 of 2019 - The record also indicates that several other petitions which were instituted under Article 32 of the Constitution have eventually been withdrawn - Earlier petition under Article 32 was withdrawn before this Court today after submissions were urged - The petitioners have an efficacious remedy in the form of proceedings under Article 226 of the Constitution to challenge the constitutional validity of the provisions of the statute which are placed in issue - Following this course of action is desirable, for this Court will then have the benefit of a considered view emanating from the High Court - Undoubtedly, the jurisdiction of this Court under Article 32 is a salutary constitutional safeguard to protect the fundamental rights of citizens - The Court must be solicitous in exercising it where a breach of fundamental human rights is in issue - But equally, whether recourse to the jurisdiction under Article 32 should be entertained in a particular case is a matter for the calibrated exercise of judicial discretion - There is regime of well-established remedies and procedures under the laws of criminal procedure - Revenue legislation also provides its own internal discipline - Short circuiting this should not become a ruse for flooding this court with petitions which can, should and must be addressed before the competent fora - Hence Bench is of the view that it would be appropriate to relegate the petitioner to the remedy of a petition under Article 226 so that this Court has the benefit of the considered view of the jurisdictional High Court - Following the orders of the three-Judge Bench of this Court in the above cases, Bench is of the view that the petitioners must be relegated to pursue the remedies in accordance with law - Besides the fact that the constitutional challenge can be addressed before the High Court, the grievance in regard to the conduct of the investigation can appropriately be addressed before the competent forum, either in exercise of the jurisdiction under Article 226 or, as the case may be, Section 482 or analogous provisions of the Code of Criminal Procedure, 1973 - Bench is, therefore, not inclined to entertain the writ petition under Article 32 - The petition is accordingly dismissed: Supreme Court Larger Bench [para 5, 6, 8, 9]

- Petition dismissed : SUPREME COURT OF INDIA

2021-TIOL-67-HC-ALL-GST

Nitin Verma Vs State of UP

GST - Application has been filed praying for grant of anticipatory bail to the applicant with reference to summons/notice dated 30.01.2020 issued by Superintendent (AE), CGST & CX, Agra u/s 70 r/w s.174 of the Act during the pendency of the case - Applicant submits that he has been summoned and he is ready to appear before the proper officer to record his statement but is under apprehension that when he goes for the same, he may be detained and sent to jail - applicant contends that he has been falsely implicated in this case on account of business rivalry on the allegation that he is running fake firms and from his possession bogus invoices are alleged to have been recovered - Counsel for Respondent Revenue submits that the applicant is involved in GST evasion of more than Rs.100 crores; that there are incriminating documents recovered which prove his involvement; that inquiry is still in progress and 111 fake firms have been found and bogus invoices numbering 373 have been recovered; that applicant is the mastermind of the entire fraud; that the goods were sold only on paper without any actual production and supply; that despite service of several summons, applicant did not appear before the proper officer for recording his statement; that after grant of interim order by the High Court, he appeared before the proper officer but on account of his threatening and presence of local advocates and family members, statement could not be recorded; that it is a case of financial fraud of more than Rs.100 crores and if the applicant is allowed to move around, he will manipulate the entire evidence; that summons were issued for appearance on 17.12.2020; that applicant is not entitled to invoke the jurisdiction of this Court u/s 438 CrPC as he enquiry by the proper officer is not a criminal but a judicial proceeding.

Held: Court, after going through the judgment of the Punjab and Haryana High Court in the case of Akhil Krishan Maggu - 2019-TIOL-2615-HC-P&H-GST finds that the Court has considered the relevant judicial pronouncements and has laid down the factors and parameters to be taken into consideration while dealing with anticipatory bail applications - Court finds that the applicant has no prior criminal antecedents bought on record; that his implication can be made under cognisable and non-bailable offences u/s 132(5) of the Act if the allegations are found to be correct; that the applicant has not given any statement in enquiry till date due to fear of arrest; that the personal liberty guaranteed under Article 21 of the Constitution is a fundamental right and in every case, arrest is not necessary; that u/s 438 CrPC, where the implication of a person is for a non-bailable offence, he can apply for anticipatory bail and if the applicant cooperates with the enquiry, there is no requirement of his arrest; the applicant does not appear to be a habitual offender, prosecuted or convicted earlier, therefore, he deserves to be granted limited protection for the purpose of conclusion of enquiry by Proper Officer - Applicant shall be enlarged on anticipatory bail for a period of six weeks or till the enquiry is concluded by the proper officer u/s 70(1) of the CGST Act, whichever, is earlier, on execution of a personal bond of Rs.5 lakhs and two sureties of the like amount before the proper officer concerned and on the conditions laid down for compliance - Proper officer, if any unforeseen circumstances arises, is at liberty to file appropriate application before this Court for cancellation of anticipatory bail granted to the applicant - Proper officer will continue with the enquiry and will not be affected by any observation made in this order: High Court [para 9, 10]

- Application allowed : ALLAHABAD HIGH COURT

2021-TIOL-65-HC-MUM-VAT

Gopal Ramourti Vs State of Maharashtra

Whether a non-executive director of a public company can be held liable for company's alleged default under MVAT Act, 2002 – NO: HC

- Petition allowed : BOMBAY HIGH COURT

2021-TIOL-64-HC-AHM-VAT

Pankaj Metals Vs State of Gujarat

Whether reassessment order that once again raises a demand by disallowing the very same input tax credit that was disallowed in original assessment is tenable in law– NO: HC

- Petition allowed : GUJARAT HIGH COURT

2021-TIOL-66-HC-MUM-ST

K N Rai Vs UoI

ST - SVLDRS, 2019 - Sections 121(r), 123(c) of Finance (No.2) Act, 2019 - Case of the petitioner is that it is a proprietorship firm which is engaged in providing construction services to various government, local authorities etc. under the category of "works contract services" - An enquiry was initiated by the Service Tax Department against the petitioner for the period from 2014-15 to June, 2017 on the ground that services provided by the petitioner were taxable and not exempted in terms of the  notification dated 20.06.2012 - During the enquiry,  petitioner submitted all the record as sought for by the authority - Statement of the proprietor Kirit Kedarnath Rai was recorded on 28.06.2019 - In his statement, the proprietor admitted service tax liability of Rs.1,26,54,725/-, however, because of financial crisis they could not deposit the said amount - Petitioner vide letter dated 06.09.2019 informed respondent No.4 about its willingness to apply under the SVLDRS scheme further stating that it had admitted tax liability of Rs.1,26,54,725.00 for the period from 2014-15 to 2017-18 (upto June, 2017) as quantified in the statement of the proprietor dated 28.06.2019 - Petitioner was called for personal hearing on 17.12.2019 but they sought an adjournment which was not granted - On 12.02.2020, petitioner received a letter from respondent No.2 intimating that its declaration was rejected on the ground that quantification of the tax dues was not made final by 30.06.2019 which was the cut-off date - Aggrieved, present Writ Petition has been filed - It is contended by the respondent DGGI that it is impossible for the investigating agency to conclude that the liability so admitted by the declarant is the full and final liability, within a period of two days; that investigation of tax evasion is an elaborate and complex process where various angles and issues would have to be examined and this consumes sufficient time. 

Held: Issue for consideration i.e., whether a declaration made under the category of investigation, enquiry or audit under the scheme would be maintainable or not where the tax dues had to be quantified on or before 30.06.2019 is no longer res integra -  In Thought Blurb Vs. Union of India, 2020-TIOL-1813-HC-MUM-ST , this Court referred to the clarifications issued by the Central Board of Indirect Taxes and Customs  dated 27.08.2019 and thereafter held that as per the above clarification, written communication in terms of section 121(r) will include a letter intimating duty demand or duty liability admitted by the person during enquiry, investigation or audit etc. - Again in the case of G.R.Palle Electricals vs. UOI 2020-TIOL-2031-HC-MUM-ST it has been held on similar lines; above position has been reiterated in Saksham Facility Services Pvt. Ltd. vs. UOI 2020-TIOL-2108-HC-MUM-ST - In the instant case, it is not disputed that statement of Kirit Kedarnath Rai, proprietor of the petitioner was recorded before the Senior Intelligence Officer, DGGI, Vapi on 28.06.2019 under section 70 of the Central Goods and Services Tax Act, 2017 read with section 14 of the Central Excise Act, 1944 and section 174 of the Central Goods and Services Tax Act, 2017 and in response to question No.20 [ Please peruse a work-sheet (Annexure-A) wherein the Service Tax liability of your firm M/s K.N.Rai has been quantified on the basis of RA bills of taxable work orders submitted by you and as discussed and admitted herein above, the total Service Tax liability comes to the tune of Rs.1,26,54,725/- including all cesses for the period from 2014-15 to 2017-18 up to 30.06.2017.  Please go through the said work-sheet in detail and state whether you are completely agreed with the said Service tax liability of Rs.1,26,54,725/-.  Please also state by what time you are paying the said liability along with applicable amount of interest. ] he agreed that the amount of service tax liability for the period from 2014-15 to 2017-18 upto 30.06.2017 was Rs.1,26,54,725.00 - From the above, it is quite evident that there was a clear admission on the part of the petitioner as to its service tax liability and such admission was prior to the cut off date of 30.06.2019 - Thus, there is admission by the petitioner that the amount of service tax liability for the related period was Rs.1,26,54,725.00 on 28.06.2019 which was before the cut off date of 30.06.2019 - As held in Saksham Facility Pvt Ltd (supra) the word "quantified" appearing in the scheme would mean a written communication of the amount of duty payable which would include a letter intimating duty demand or duty liability admitted during enquiry, investigation, audit or audit report and not necessarily the amount crystallised following adjudication - Insofar as the letter dated 06.09.2019 is concerned, the same was only in reiteration of the admission made by the proprietor on 28.06.2019 - Further, such an admission is to be examined not for the purpose of investigation into alleged tax evasion but for the purpose of eligibility under the scheme - In such circumstances, respondents were not justified in rejecting the declaration of the petitioner under the scheme on the ground that quantification of tax dues was not made final on or before 30.06.2019 - Impugned order 12.02.2020 is set aside and quashed - Matter is remanded back to the respondent nos. 2 and 3 to consider the declaration of the petitioner as a valid declaration under the category of investigation, enquiry or audit in terms of the Scheme and after giving due opportunity of hearing grant the consequential relief(s) to the petitioner - above exercise to be carried within a period of six weeks - Writ petition is accordingly allowed: High Court [para 18 to 23]

- Petition allowed : BOMBAY HIGH COURT

2021-TIOL-29-CESTAT-KOL

Tinplate Company Of India Ltd Vs CCE & ST

2021-TIOL-28-CESTAT-KOL

Semtech Advanced Systems India Pvt Ltd Vs CCE & ST

AK Sircar & Sons Vs CC

Cus - The assessee is a Customs Broker licensed under CBLR, 2013 - The DRI received information that in a container in respect of which the shipping bill was filed by assessee declaring the goods as accessories of sanitary ware, was indeed containing Red Sanders, an endangered species of wood, whose export is prohibited - On examination, it was found to be true - The shipping bill was filed in the name of Shri Raju Biswas (M/s. Srijita Exports) as the exporter - It appeared that the assessee had violated the conditions of CBLR, 2013 - During investigation, assessee had no documents pertaining to export in their possession - In fact, in the first statement given by Shri Somnath Sarkar, partner of assessee's firm, he said that he allowed Shri Sudhir Kr. Jha of M/s. U.S. Clearing Agency to handle export and import work using their licence and therefore all original documents are lying with them - Evidently, assessee has transferred his licence or sublet it to allow unlicensed Shri Sudhir Kr. Jha and his firm M/s. U.S. Clearing Agency to clear exports and imports - Not only with respect to this consignment, but assessee also had no records of previous consignments exported in the name of same exporter where the shipping bills were filed indicating the assessee as Customs Broker - The totality of these circumstances would show that the assessee has indeed sublet his licence to Shri Sudhir Kr. Jha of M/s.U.S. Clearing Agency - The violations are very serious - It would have been a different case if exports documents were filed properly by assessee and the exporter had either misdeclared the contents of sealed container or at some stage replaced the declared contents with the contraband - In fact, the exporter is not in picture - The shipping bill was filed in the name of exporter using documents which were available only with Shri Sudhir Kr. Jha and he admitted that all those documents were fake - Physical examination of container also showed that what was being exported was not that has been declared in documents - Thus, assessee has, by subletting their licence to another person in complete violation of CBLR, 2013 has created an open channel through which any contraband can be smuggled out of India with impunity - It cannot be appreciated that the assessee was not directly involved in attempted smuggling but has only allowed another person to open such a channel of smuggling using their licence - This is serious enough to warrant revocation of the licence of assessee and for forfeiture of Security Deposit - The impugned order is therefore upheld: CESTAT

- Appeal rejected: KOLKATA CESTAT

2021-TIOL-24-CESTAT-HYD

Concrete Products & Construction Company Vs CC, CE & ST

CX - The assessee is manufacturer of pre-stressed cement concrete sleepers which they supply to Indian railways and some other organisations on contract basis - On verification of accounts of assessee, the department found that the assessee was not getting reimbursed fully for the entire cost of transportation of inputs namely HTS wires, Inserts and cement incurred by them - They were getting reimbursed only as per the agreement while the actual cost of transportation incurred by them was much higher - On the input service of transportation of the raw material, they were availing CENVAT Credit - However, while paying the Central Excise Duty, they were paying it on the price for the goods paid by the Indian railways and the amounts reimbursed by Indian railways towards transportation of inputs - They were not paying Central Excise Duty on that portion of transportation cost which was incurred by them but not reimbursed by Indian Railways - It appeared to the department that the entire cost of transportation of input materials must be included in assessable value for payment of Central Excise Duty - There is no dispute that there was indeed a sale of sleepers by assessee to the Indian Railways - The price is all inclusive, as can be seen from the terms of contract - This was the cost of transportation of inputs in consumption i.e. HTS wire and Inserts, as per some specific norms indicated in the agreement - It does not matter whether the actual amount of freight paid by the assessee was higher but reimbursement will be confined to the amounts indicated in agreement - Therefore, the additional consideration is only the additional amount received towards reimbursement of cost of transportation of inputs - It is not in dispute that this amount has already been included by assessee while calculating the duty payable but duty has been paid on this amount - No infirmity found in what the assessee had done - They are entitled to avail CENVAT Credit of duty paid on all inputs and service tax paid on all input services which they have used, whether or not the same has been reimbursed separately by the buyer - As long as there is a transaction value, the transaction value becomes the assessable value under section 4 of CEA, 1944 - If there is some additional consideration for sale, then such additional consideration also has to be included to the transaction value to determine the assessable value - This is precisely what the assessee had done - The Department cannot add separately all the costs incurred by assessee which have not been reimbursed by buyer in addition to the price - The demand made in impugned order and the penalties imposed are unsustainable, same are set aside: CESTAT

- Appeal allowed: HYDERABAD CESTAT

TII

TP- Any arm's length price adjustment is required if by including a comparable company assesse would fall within +/-5% tolerance range: ITAT

TP- After sale support services, training to customers and local staff for troubleshooting and service coordination expenses are thus, required to be included for determining the gross profit margin in resale price method : ITAT

TIOLCORPLAWS

Trade Marks Act - Party can be permitted to modify impugned advertisement so that it may no longer amount to disparagement: HC

Arbitration and Conciliation Act - In absence of arbitration clause in agreement based on which suit is filed, parties cannot be referred to arbitration: HC