2021-TIOL-408-HC-MAD-IT

Pr.CIT Vs M Kiran Kumar

Whether Tribunal becomes a functus officio and they can exercise their power of rectification u/s 254(2), if the mistake is brought to its notice by assessee or AO - YES: HC

Whether Tribunal can exercise its power in issuing suo motu Corrigendum, that too by undated order without hearing Revenue or Assessee - NO: HC

- Revenue's appeal allowed : MADRAS HIGH COURT  

2021-TIOL-407-HC-MAD-IT

CIT Vs S R A Systems Ltd

Whether amended provisions of Section 234D can be applied in respect of A.Ys which are prior to insertion of such provision - NO: HC

Whether amended provision shall come into force only after the commencement of the Assessment Year and cannot be applied retrospectively unless it is specifically mentioned - YES: HC

- Revenue's appeal dismissed : MADRAS HIGH COURT  

2021-TIOL-406-HC-AHM-IT

Saurabh Natvarlal Soparkar Vs ACIT

Whether reopening notice issued beyond period of four years on basis of mere change of opinion, and that too in case of scrutiny assessment u/s 143(3), is not sustainable - YES: HC

- Assessee's writ application allowed : GUJARAT HIGH COURT  

2021-TIOL-405-HC-KAR-IT

Sri Ganesh Shipping Agency Vs ACIT

On appeal, the High Court finds that the speed money is a normal practice in the assessee's line of business and that the disallowance of 10% as determined by the CIT(A) and the Tribunal is on account of the assessee having produced self-made cash vouchers, due to which the recipients of the payments were not verifiable. Hence the Court finds no reason to interfere with the findings of the Tribunal.

-  Assessee's appeal allowed : KARNATAKA HIGH COURT

2021-TIOL-324-ITAT-DEL

Radhika Surgical Pvt Ltd Vs ACIT

Whether when notice issued u/s 274 r/w sec. 271(1)(c) does not specify charge, it is bad in law and penalty levied must be deleted– YES: ITAT

- Assessee's Appeal allowed: DELHI ITAT

2021-TIOL-323-ITAT-DEL

DCIT Vs Azalea Infrastructure Pvt Ltd

Whether assessee is to be taxed for the loss occured on forfeiture of the share warrant by the amalgamating company, particularly when the assessee is only a conduit to avoid tax liability - NO: ITAT

- Revenue's appeal dismissed: DELHI ITAT

2021-TIOL-322-ITAT-DEL

Picheswar Gadde Vs ITO

Whether additions made merely on presumptions u/s 132(4A)/292C cannot be sustained if presumption is not backed by direct and corroborative evidence that notings has materiazed into unexplained income/ unexplained expenditure - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2021-TIOL-321-ITAT-MUM

ITO Vs Rajesh Haridas Menon

Whether disallowance for bogus purchases can be reduced to the extent of profit element embedded in these purchase where sales are not in doubt - YES: ITAT 

- Revenue's appeal dismissed: MUMBAI ITAT

2021-TIOL-320-ITAT-KOL

Hindustan Gun And Chemicals Ltd Vs DCIT

Whether investments which yielded dividend income should be considered for the purpose of computing disallowance under Rule 8D(2)(iii) of IT Rules - YES : ITAT

- Assessee's appeal allowed: KOLKATA ITAT

2021-TIOL-319-ITAT-BANG

FNF India Pvt Ltd Vs ACIT

Whether deduction u/s. 80G can be given even when the donations are made as part of the Corporate Social Responsibility - YES: ITAT

- Assessee's appeal partly allowed: BANGALORE ITAT

2021-TIOL-403-HC-CHHATTISGARH-VAT

Bajrang Power And Ispate Ltd Vs State Of Chhattisgarh

Whether pre-mature termination of existing industrial policy will not affect entitlement of an establishment of promised investment subsidy, for previous years in which course of action was taken relying on such policy - YES: HC

Whether benefits already granted to power company as promised under Industrial Policy can be withdrawn later in light of change of opinion of State government, but prospectively - YES: HC

Whether such power company would be entitled for benefit of exemption of capital investment made in captive power plant, and also eligible for set off of tax liablity generated on account of new policy - YES: HC

- Assessee's petition allowed : CHHATTISGARH HIGH COURT

2021-TIOL-402-HC-DEL-GST

Maa Laxmi Associates Vs UoI  

GST - Petitioner seeks a direction to the respondent no.2 CBIC to reply to their representation [seeking clarification of section 168 of the CGST Act, 2017 on issues arising out of interception/detention and seizure/confiscation proceedings u/ss 129 and 130 of the Act] dated 17th November, 2020 and also a similar direction is sought to the respondent no.6 Sales Tax Officer to take up the representation dated 15th January, 2021 of the petitioner and pass a speaking order deciding the same within a reasonable time.

Held: Bench is of the opinion that there is no such obligation or mandate on the respondent no.2 CBIC to reply to each and every representation made/communication sent to it - petition has not cited any authority holding so to advise the petitioner on the authority under which goods in movement are intercepted, detained and/or procedure to be adopted thereafter and scope of verification of documents etc. - Petitioner, instead of seeking legal counsel of its advisors/advocates cannot turn to respondent no.2 CBIC to give legal opinion: High Court [para 4, 5]

GST - Cancellation of registration - Counsel for the respondent no.6 fairly informs that under Section 30 of the CGST Act, an application for revocation of the cancellation of registration is permitted to be filed - It is further stated that the respondent no.6 will decide the application dated 3rd November, 2020 of the petitioner in a time bound manner -Accordingly, the petition is disposed of directing the respondent no.6 Sales Tax Officer to decide the application of the petitioner under Section 30 of the Act, within four weeks: High Court [para 8, 9]

- Petition disposed of: DELHI HIGH COURT

CX - The appellant is engaged in manufacture of excisable goods namely Electrostatic Precipitator, Supporting Components and Structures classifiable under Chapter 73 and 84 of First Schedule to Central Excise Tariff Act, 1985 as it existed then - They had supplied certain goods claiming exemption under S No 336 of Exemption Notfn 12/2012-CE to a project awarded against International Competitive Bidding - Claiming these supply to be deemed exports, appellants preferred a refund claim - The short point for consideration is admissibility of refund of accumulated CENVAT Credit, in the case where the goods have been supplied to a project awarded under ICB, treating such supplies to be deemed exports - The refund of accumulated credit in terms of Rule 5 of CENVAT Credit Rules, 2004 was admissible only, if the person claiming such refund was able to establish actual and physical export of goods cleared by him for export under bond or against a letter of undertaking - These conditions are substantial and in case of non fulfillment of the same refund could not have been allowed - This is what has been clarified by para 3 (g) of Notfn 27/2012-CE (NT) - Any doubt or ambiguity which existed was further clarified by insertion of clause (1A) in Explanation to Rule 5, by the Notfn 6/2015-CE (NT) - The basic principle which has emerged in all such cases of supplies made to the EOU's is that in respect of goods supplied to EOU, the clearances have been made under the bond following the procedure as prescribed for such clearances - The goods which have been supplied to the EOU or cleared for exports are not cleared under an exemption notification issued under Section 5 of Central Excise Act, 1944, but are cleared for export either in finished form or in intermediate state for the production of finished goods which get finally exported - None of the decisions relied upon by appellants decided the issue in their favour - Finally, Tribunal is left with one single member decision in the case of Om Metals Infra Projects Ltd 2016-TIOL-1211-CESTAT-DEL - The said decision, do not dwell on the issue independently but relies upon the decision in case of Apotex Pharmachem India Pvt Ltd 2015-TIOL-2268-CESTAT-BANG , which was not the case of supply made to a project awarded under ICB, but was the case of supply made from one EOU to another EOU - The Tribunal thus relying on the decision of High Court in the case of Shilpa Copper which was on identical facts allowed the appeal partially - Since the decision in the case Om Metals Infra Projects Ltd. , do not record any finding as to how the supplies made to a project awarded under ICB, is covered by the Rule 5 of CCR, 2004, the decision is sub-silento and cannot be a binding precedent - Even otherwise the bench deciding the case was not having the benefit of decision of Apex Court in case of Dilip Kumar and Company 2018-TIOL-302-SC-CUS-CB - Hence this decision do not advance the case of the appellants any further - No merits found in the appeal and the same is rejected: CESTAT

- Appeal rejected: MUMBAI CESTAT

Cus - The appellant had filed Bill of Entry for clearance of goods imported by them namely Winches (stage Lighting Equipment) and LED Balls of different sizes - They claimed the classification of winches under Custom Tariff Heading 84253100 and those of LED Ball under 85395000 - On examination of goods, the dock officer found that winches are to be specifically used in kinetic lights with sole function as stage lighting equipment, thus the goods were correctly classifiable under heading 94054090 attracting Custom Duty - Thus the matter was referred by dock officers to the group for determination of the correct classification and applicable duty - From the plain reading of Chartered Engineer Certificate, it is quite evident that the impugned goods are not simply handling or lifting equipments, their primary use is the synchronized spatial choreography of large arrays of tethered lighting elements and is specific in use for stage lighting - This observation of Chartered Engineer, will leave no iota of doubt as to the use of impugned goods as lighting fixtures and not as simple handling or lifting equipment - Both the authorities below have determined the essential character of impugned goods as lighting fixture after considering the product catalogue (literature) and the Chartered Engineer Certificate - Appellants have not produced anything to disturb the said findings of lower authority, and establish that impugned goods are simple handling/ lifting equipment to merit classification under heading 84253100 - When both authorities have determined the essential character of impugned goods as Lighting Fixture, then the classification as determined by them under heading 94054090 cannot be faulted with - From the Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012, it is quite evident that the said order is applicable in respect of goods, as defined and specified in the schedule - In absence of any determination of Indian Standard, which would be applicable in respect of these goods the impugned order holding that goods have been imported in contravention of provisions of Electronics and IT Goods Order 2012, cannot be sustained - The order holding that the goods are prohibited and liable for absolute confiscation needs to be reconsidered by the authorities below - Hence the matter is remanded back to the original authority for determination of Indian Standard - Time and again it has been held by various authorities that mere misclassification of goods, is not misdeclaration for which the goods can be held liable for confiscation under Section 111 (m) of the Customs Act, 1962 - However, the Assistant Commissioner has for confiscation not only invoked Section 111 (m) but has also held that the goods are prohibited goods and are liable for confiscation under section 111 (d) too - Since the goods have been held as prohibited for the reason of failure to comply with the requirements of compulsory registration of the goods as per Electronics and IT Goods (Requirements for Compulsory Registration) Order 2012 and matter is remanded for consideration of applicability of said order to the impugned goods, the issue of confiscation in terms of Section 111 (d) and penalty under Section 112 (a) also is remanded back to the original authority: CESTAT

- Matter remanded: MUMBAI CESTAT