2021-TIOL-381-HC-AHM-VAT

Modern Petrofils Vs Asstt Commissioner Of Commercial Tax

Whether notice u/s 152 of Bombay Land Revenue Code, 1879 can be issued for the purpose of recovery of tax as determined, pending appeal and stay application before Value Added Tax Tribunal – YES: HC

- Application disposed of : GUJARAT HIGH COURT

2021-TIOL-379-HC-MAD-CT

FL Smidth Pvt Ltd Vs Assistant Commissioner (CT)(FAC)

Whether HC must follow same procedure for subsequent AYs when identical case in favour of same assessee has been adjudicated upon for earlier AY – YES: HC.

- Writ petition allowed : MADRAS HIGH COURT

2021-TIOL-93-CESTAT-HYD

IVRCL Assets And Holdings Ltd Vs CC, CE & ST

ST - Construction of Complex service - Appellant has not contested the demand on merits but has only contested the imposition of equal penalty u/s 78 of the Act, 1994 - It is submitted that none of the ingredients as prescribed u/s 78 is available but without verifying in the proper perspective, the adjudicating authority has proceeded to confirm the penalty; that it was only a case of non-payment of service tax which was on account of the bonafide belief that the work relating to the sewerage project originally awarded by the Government to M/s IVRCL Infrastructure & Projects Ltd. was not liable to service tax as it was a government work without involving any commercial benefit and not even for any industrial purpose.

Held: 

+     Appellant has all along pleaded bona fides that there was no liability to Service Tax - Moreover, Bench finds that there is basis for assuming bona fide since Govt was also a party to the contract - On the other hand, revenue has never dislodged such belief entertained by the appellant nor is there anything brought on record to even suggest that such assumption of bona fide was wrong; rather penalty was levied as a routine - Bench finds force in the arguments that  penalty is levied without verifying if the ingredients of S.78 are present to justify levy. 

+     In order to attract Section 78, it is necessary that tax must have remained unpaid for the reasons of fraud or collusion or wilful mis-statement or suppression of facts, etc, with an intention to evade payment of tax - In the Order-in-Original passed by the Assessing Authority, there is no such finding against the assessee of it being guilty of wilfully not paying tax by reason of any of the clauses provided in clauses (a) to (e) of Section 78(1) of the Act. Furthermore, as per first proviso to Sub-section (1) of Section 78 of the Act, no penalty shall be imposable for any failure referred to in the said Provision viz., for failure to pay service tax, for contravention of Rules and Provisions of the Act, or for suppression of facts etc., if the assessee proves that there was reasonable cause for such failure: CESTAT [para 11]

+     From the facts available on record, it is noticed that entire facts were available on record and on this there is no dispute; nor is there any contrary finding by the adjudicating authority - The entire dispute arose, as pleaded by the appellant, on account of wrong interpretation/understanding of the provisions of the Act and the lower authority has not disputed the bona fide pleadings of the appellant - But the penalty is levied as if it is automatic, however, it can hardly be said that there was evasion, much less wilful evasion, to pay tax or not to comply with the provisions of the Act - Bench is  inclined to accept the case of the assessee and hold that there was no justification for imposition of penalty, especially when there was no allegation of fraud, mis- representation, etc. - Accordingly, the penalty imposed on the appellant shall stand deleted: CESTAT [para 12]  

ST -  Service Tax on pipe laying and pipe laying civil works at MCGM-TANSA Pipeline, which even the Revenue is not able to establish that this is a commercial or industrial project - Hence, Bench agrees with the appellant's contentions and therefore, following the decisions relied on the demand on this count cannot sustain: CESTAT [para 9.1]

-Appeal allowed :HYDERABAD CESTAT

2021-TIOL-92-CESTAT-BANG

EP Kunhanandan Nair Vs CCE & CT

ST - The miscellaneous application has been filed by Mr. P. Suraj who is the son of late Shri E.P. Kunhanandan nair, who was the appellant and filed the present appeal praying that the present appeal stand abated in terms of Rule 22 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 - The appellant was a PWD contractor and was engaged in rendering services of construction of buildings since 1962 and had always maintained rendering quality services to his clients over the years - A SCN was issued which was contested by his father and the adjudicating authority after following the due process has confirmed the demand of service tax, interest and penalty - As per the death certificate produced on record, the appellant has died on 09/05/2019 when the appeal was pending - As per Rule 22 of CESTAT Rules, 1982, the appeal shall abate on the death of appellant unless an application is made for continuation of such proceedings by or against the successor in interest, executor, administrator, receiver, liquidator or other legal representatives of appellant or applicant or respondent - Further, the business of appellant has not devolved upon any of his surviving heirs including the applicant, as per the application filed by the applicant - The decision of Apex Court in Shabina Abraham 2015-TIOL-159-SC-CX is applicable in the facts and circumstances of the case - Therefore, by following the ratio of said decision and Rule 22 of the CESTAT Rules, 1982, the present appeal stands abated: CESTAT

- Appeal disposed of: BANGALORE CESTAT