2021-TIOL-156-HC-MAD-IT

Harvey Heart Hospitals Ltd Vs ACIT

Whether unabsorbed depreciation relating to AY 1997-98 to 2000-2001 is eligible for set off against any income for the AY 2005- 06 - YES : HC

- Assessee's appeal allowed: MADRAS HIGH COURT

2021-TIOL-155-HC-MAD-IT

CIT Vs Lakshmi Machine Works Ltd

Whether CIT's revision order passed u/s 263 is valid in the absence of concurrent satisfaction of the two conditions under section 263 – NO: HC

- Revenue's appeal dismissed: MADRAS HIGH COURT

2021-TIOL-154-HC-MAD-IT

Share Aids Pvt Ltd Vs ITO

Whether section 41(2) can be invoked to calculate the loss on sale of asset and claim the same as the business loss – Yes: HC

- Assessee's appeal allowed: MADRAS HIGH COURT

2021-TIOL-148-ITAT-DEL

Sanjay Duggal Vs ACIT

Whether a common order of approval can be passed by JCIT for passing assessment order for non-abated assessments u/s 153A for different assessment years - NO: ITAT

- Assessee's appeal allowed : DELHI ITAT

2021-TIOL-147-ITAT-BANG

Ashok B Sureban Vs ACIT

Whether penalty u/s 271AAb can be levied even if there is no search u/s 132 - NO: ITAT

- Assessee's appeal allowed : BANGALORE ITAT

2021-TIOL-144-ITAT-DEL

ITO Vs RK Gifts

Whether addition for bogus purchases can be made without doubting the sales and without rejecting the books of accounts - NO : ITAT

- Revenue's appeal dismissed: DELHI ITAT

2021-TIOL-143-ITAT-KOL

DCIT Vs Shikha Roy

Whether deduction under Ss 54EC and 54F can be granted when transfer of tenancy rights are assessed under the head capital gains on the ground that no purchase price was paid for the tenancy - YES: ITAT

- Revenue's appeal dismissed: KOLKATA ITAT

2021-TIOL-142-ITAT-PUNE

LH Patil Constructions Pvt Ltd Vs DCIT

Whether rectification of a glaring and patent mistake committed in the original assessment order is acceptable - YES : ITAT

- Assessee's appeal dismissed: PUNE ITAT

2021-TIOL-141-ITAT-MUM

ITO Vs Isarc-FA-41-I/2011-12 Trust

Whether the Uniform Accounting Standard for revenue recognition for ARCs recognize upside income if a non-charitable trust suffers shortfall of recovery over purchase consideration – NO: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2021-TIOL-140-ITAT-MUM

Tanaya Enterprises Pvt Ltd Vs ACIT

2021-TIOL-163-HC-PATNA- GST

Gammon Enginners And Contractors Pvt Ltd Vs State Of Bihar

GST - Interest - Section 50 of the CGST Act, 2017 - P ost issuance of Notification 63/2020-CT dated 25th August 2020, a press release was issued by Ministry of Finance, Govt of India on 26.08.2020 wherein it was clarified that amendment in section 50(1) of the Act, 2017 by insertion of proviso has been made effective prospectively w.e.f. 01.09-2020 due to certain technical limitations, however, for present no recoveries for interest charged on gross liability will be recovered for the past period as well, by the central and state tax administration; that no recovery will be made for interest charged on delayed payment of tax which has been made by the taxpayer debiting the credit ledger - however, the Counsel for Revenue prays that the taxpayer may be directed to pay interest on delayed payment of tax which has been made by debiting the cash ledger, that is, on the net liability - CBIC has also issued administrative  instruction  dated September 18, 2020 in this regard - Petition is disposed of: High Court [para 11 to 13]

- Petition is disposed of f : PATNA HIGH COURT

2021-TIOL-55-AAR-GST

Gujarat Raffia Industries Ltd

GST - HDPE Tarpaulin, PE laminated fabric, PP ropes, Pondliner, Vermibed, Weed mat, Wagon cover, Fumigation cover, Azolla Bed, Agro shade net, HDPE Woven laminated fabrics, PP/HDPE woven fabric is classifiable under Heading 3926 9099 and attracts GST @18%: AAR

GST - Grow bags are classifiable under CH 3923 2990 and attract GST @18%: AAR

-Application disposed of : AAR

2021-TIOL-54-AAR-GST

Vallalar Borewells

GST -  Drilling of Bore wells for supply of water for agricultural operations like cultivation including seeding, planting and ploughing is not 'Support Service for agriculture' classifiable under 'SAC 9986' - Water-well drilling services are specifically covered under 995434 and the said category includes all Water-well drilling services without any exceptions - Therefore, it is evident that the drilling of borewell without exceptions (even in the agricultural land) is a construction service involving drilling water well and not a support service for agriculture - As the activity does not merit classification under SAC 9986, the applicant is not eligible for exemption as per Sl. No. 54 of Notification No. 12/2017-C.T.(Rate): AAR

GST -  In respect of letting out of Compressors, the applicant claims that the same are let out for pumping water from the bore-wells drilled by them to the agricultural fields and, therefore, is a 'Support service for agriculture' - Compressor is not an agricultural machinery and is a General-Purpose Machinery - Also, only provision of agricultural machinery with crew and operators are stated as 'Support service for agriculture' - Therefore, letting out of the Compressor is also not a 'Support service for agriculture' classifiable under SAC 9986 and the applicant is not eligible for exemption as per Sl. No. 54 of Notification No. 12/2017-C.T.(Rate): AAR 

-Application disposed of : AAR

2021-TIOL-53-AAR-GST

Thirumalai Chemicals Ltd

GST - Applicant is engaged in the business of manufacture and trading of chemicals - They have sought a ruling on the following questions viz. value to be adopted in respect of transfer to branches located outside the State; whether the value of such supplies can be determined in terms of the second proviso to rule 28 in respect of supplies made to distinct units in accordance with clause (4) & (5) of s.15 of the Act, 2017. Held:   In the case at hand, the applicant supplies to their distinct persons, for which presently they adopt the approximate sale value of the distinct person - The distinct person undertakes supply to their ultimate-unrelated customer 'as such' and the value adopted is that on the Purchase Order issued to such distinct persons by the ultimate customer - Also, the distinct units are eligible to avail full Input Tax credit of the tax paid by the applicant - Therefore, following the judicial discipline [Specsmakers Opticians Private Limited -  2020-TIOL-05-AAAR-GST , Authority holds that the value to be adopted by the applicant can be arrived at following the methodology of either of the three methods provided under rule 28 of the Rules r/w s.15 of the Act, 2017 viz. (a) Open Market Value as is presently being adopted; ( b) 90% of the ultimate sale value as raised by the distinct persons to the un-related ultimate customers based on the Purchase Orders in cases of 'as such' supplies; (c)  The distinct persons being eligible for full Input Tax credit of Taxes paid by the applicant, the 'Invoice value' is the deemed 'Open Market Value': AAR

-Application disposed of : AAR

2021-TIOL-52-AAR-GST

Faiveley Transport Rail Technologies India

GST - Application seeks a ruling on the appropriate classification of  Wheel Side Protection Control Unit (WSP) and Pantograph supplied by the applicant. Held: It is clear from the facts on record that DGGSTI has taken up investigation on the classifications adopted by the applicant on their supplies to Indian Railways  - The subject goods are supplied to 'Indian Railways' and the applicant classify the same under CTH 8607 - The application is filed on 20.01.2020 while the proceedings on the 'Classification of the goods supplied to Indian Railways' and the 'rate adopted for payment of GST' were initiated through summon dated 10.10.2018 - The first proviso to Section 98(2) of the Act states that where the question raised is pending or decided in any proceedings under this Act, the same is not eligible for admission before this authority - It is clear that classification and rate adopted in respect of 'Pantograph' irrespective of the claim that their classification was acceded/contended by the investigating authority has been called for as a part of the investigation proceedings under Summon issued under Section 70 of the Act which establishes that the question raised before Authority is a part of the proceedings of DGGSTI and, therefore, squarely covered under proviso to Section 98(2) of the Act - Application cannot be considered for admission: AAR

-Application disposed of : AAR

2021-TIOL-51-AAR-GST

Aravind Drillers

GST -  Drilling of Bore wells for supply of water in agricultural land is not 'Support Service for agriculture' classifiable under 'SAC 9986' - Water-well drilling services are specifically covered under 995434 and the said category includes all Water-well drilling services without any exceptions - Therefore, it is evident that the drilling of borewell without exceptions (even in the agricultural land) is a construction service involving drilling water well and not a support service for agriculture - As the activity does not merit classification under SAC 9986, the applicant is not eligible for exemption as per Sl. No. 54 of Notification No. 12/2017-C.T.(Rate): AAR GST -  In respect of letting out of Compressors, the applicant claims that the same are let out for pumping water from the bore-wells drilled by them in the agricultural land and, therefore, is a 'Support service for agriculture' - Compressor is not an agricultural machinery and is a General-Purpose Machinery - Also, only provision of agricultural machinery with crew and operators are stated as 'Support service for agriculture' - Therefore, letting out of the Compressor is also not a 'Support service for agriculture' classifiable under SAC 9986 and the applicant is not eligible for exemption as per Sl. No. 54 of Notification No. 12/2017-C.T.(Rate): AAR 

-Application disposed of : AAR

2021-TIOL-160-HC-KAR- VAT

Kluber Lubrication India Pvt Ltd Vs Addl.CCT

VAT - Karnataka Entry Tax Act, 1979 - Assessee is a private limited company and is registered as a dealer under the Karnataka Value Added Tax Act, 2003 as well as Central Sales Tax Act, 1956. The assessee has a manufacturing unit at Metagalli, Hebbal Industrial Area, Mysore and a warehouse at Hebbal Industrial Area, Mysore. The assessee is engaged in the business of import and sale of certain specialty lubricants such as lubricating oils and grease which are both petroleum and synthetic based. The assessee has been making payment of entry tax in respect of petroleum based lubricating oil in terms of Entry 67 of 3rd Schedule of Karnataka Tax on Entry of Goods Act, 1979 read with Entry 1(viii)(a) of Notification bearing No.FD/11/CET/2002 dated 30.03.2002 in case of entry of synthetic based lubricating oil and grease and base oil into the local area, no tax was being paid as it is non notified commodities. The entry tax was also not paid on the import / purchase of lubricants into the local area which are further sold in the course of inter state sales as goods are not meant for use, consumption or sale within the State of Karnataka. The Enforcement Officers of Commercial Taxes Department submitted an inspection report on the applicability of entry tax on the entry of lubricants within the local area for further sales on completion of assessment under the Karnataka Value Added Tax Act, 2003 for the Assessment Years 2005-06, 2006-07 and 2007-08. The Deputy Commissioner of Commercial Taxes on the basis of the inspection report, initiated the re-assessment proceedings against the assessee under Section5(4) of the 1979 Act and issued notice dated 25.05.2011 and revised notice dated 01.06.2011 proposing to levy entry tax on causing entry of machinery, base oil, lubricants and other petroleum products, which caused entry in the state at appropriate rates for the Assessment Year 2006-07 and 2007-08 based on Entry 67 of 3rd Schedule read with Notification dated 30.03.2002. Deputy Commissioner of Commercial Taxes confirmed the demand of tax including interest and penalty of Rs.19,18,34,865/- and Rs.14,84,45,385/- for Assessment Years 2006-07 and 2007-08. In respect of Assessment Year 2005-06 also, the Deputy Commissioner of Commercial Tax confirmed the demand of entry tax by an order dated 25.04.2012 to the extent of Rs.7,34,01,764/- for the Assessment Year 2005-06. The rectification application filed by the assessee was also rejected vide order dated 28.10.2011 - The first appellate authority has recorded a finding that the product of the assessee is synthetic based. The aforesaid finding has not been disturbed by the revisional authority. From perusal of the Entry 67 as well as Sl.No.1 of the Notification, it is evident that Entries seem to cover only petroleum based lubricating oil on which entry tax is being paid by the assessee. The synthetic based lubricating oil is not a petroleum product and is therefore, not covered under the entry. Similarly, the grease and base oil have also not been specifically enumerated in the Notification and therefore, the same also cannot be subjected to entry tax. It is also pertinent to mention here that grease and base oil not being similar to tar cannot be classified within the expression 'tar and others' which are already been clarified by the revenue department vide Circular dated 02.05.2006. It is trite law that the Circulars issued by the department are binding on it - The appellate authority has recorded a finding that the product of the assessee is synthetic based lubricating oil, base oil and grease which are not covered under Entry 67. It is pertinent to note that synthetic based lubricating oil is classifiable under Section 34 of 1975 Act and therefore, is a distinct product from petroleum based lubricating oil, which is classifiable under Chapter 27 of the 1975 Act. It is also noteworthy that revisional authority while framing the issues have clearly noted that synthetic based lubricating oil are distinguishable from petroleum based lubricating oils. If a product does not fall within the entry, the same cannot be subjected to entry tax. Similarly, the grease and base oil are not specifically enumerated in the Notification and therefore, cannot be subjected to entry tax - In view of well settled rules of interpretation of taxing statutes, since, in Entry No.67 of First Schedule of 1979 Act, there is no mention of synthetic based lubricating oil, base oil and grease, therefore, the same cannot be subjected to entry tax as it would contravene Article 265 of the Constitution of India.

- Assessee's appeal allowed : KARNATAKA HIGH COURT

2021-TIOL-161-HC-MAD- ST

Nathan Civil Engineers & Painting Contractors Vs CCE

ST - The assessee filed the present petition to contest an O-i-O passed by the CCE concerned - The order was challenged primarily on grounds that opportunity of personal hearing had not been allowed to the assessee before passing the order.

Held - The O-i-O in question is set aside and the matter is remanded to the CCE concerned for passing a fresh order, after giving opportunity of personal hearing to the assessee - Since the dispute pertains to the years 2009 to 2014, the CCE is requested to dispose the proceedings within a period of three months from the date of receipt of a copy of this order: HC

- Writ petition disposed of : MADRAS HIGH COURT

2021-TIOL-49-CESTAT-CHD

Moral Alloys Pvt Ltd Vs CCE & ST  

CX - The appellants are in appeal against impugned orders imposing penalties under Rule 25 or 26 of Central Excise Rules, 2002 - On the basis of investigation in matters, various SCNs were issued to various manufacturers/buyers of goods in question - It has been alleged that the invoices in question have been issued by M/s. Moral Alloys and M/s. Unnati Alloys but, no investigation has been conducted with the Directors/authorised persons of these appellants to ascertain the fact that whether they have issued the invoices in question or not - In that circumstance, the investigation is faulty - Burden is on the revenue that if the invoices were not accompanying the goods then from where these manufacturers have procured the goods who has manufactured the dutiable goods which has been cleared on payment of duty - In some of the cases, the cenvet credit has already been allowed, therefore, in any of the above case, no penalty is imposable on assessee under Rules 25/26 of Central Excise Rules, 2002 - Therefore, the impugned orders quo imposing penalties on appellants are set aside: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

2021-TIOL-47-CESTAT-AHM

Sangam Fashion Pvt Ltd Vs CC

Cus - In the original order as well as the impugned order, demand was confirmed on the ground that assessee has not fulfilled export obligation in case of import of goods under EPCG License - Now as per the submission of assessee, the EODC issued by DGFT was obtained only after passing of impugned order - In these circumstances, the entire matter should be reconsidered by adjudicating authority in the light of EODC issued by DGFT - Accordingly, matter is remanded to the adjudicating authority to pass a Denovo order: CESTAT

- Matter remanded: AHMEDABAD CESTAT