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2021-TIOL-NEWS-053 Part 2 | March 04 2021
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
For assistance please call us at + 91 850 600 0282 or email us at helpdesk@tiol.in. |
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INCOME TAX |
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2021-TIOL-531-HC-KAR-IT
CIT Vs Varun Developers
On appeal, the High Court observes that the issues raised herein are settled in favor of the assessee vide the judgment in the case of I.T.A.No. 198/2014. Hence the Court disposed off the present appeal accordingly.
- Revenue's appeal dismissed: KARNATAKA HIGH COURT
2021-TIOL-435-ITAT-BANG
Ayi Vaman Narasimha Acharya Vs DCIT
Whether transfer of a property shall be deemed to have taken place only after stamp duty is assessed by State Government for purposes of tax payable under IT Act, 1961– NO: ITAT
- Assessee's Appeal allowed: BANGALORE ITAT
2021-TIOL-434-ITAT-PUNE
ITO Vs Pune Pumps Sales And Services
Whether when tax effect in appeal filed by Revenue is less than Rs. 50 Lakh,it must be dismissed– YES: ITAT
- Revenue's Appeal dismissed: PUNE ITAT
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GST CASE |
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2021-TIOL-535-HC-DEL-GST
Spnn Business Services Pvt Ltd Vs CCT
GST - Petitioner has impugned the attachment of the bank accounts under Section 83 of the CGST Act and also the rejection order dated 18th February, 2021 dismissing the objections filed under Rule 159(5) of the CGST Rules, 2017 against the provisional attachment - Petitioner submits that the attachment has brought the entire functioning of the company to a standstill, as the Petitioner is unable to dispense salary to approximately 15000 employees and discharge statutory dues like EPF, ESIC and labour welfare schemes etc - Counsel for Revenue submits that he would like to take instruction and file short affidavit/ status report within one day – In the affidavit filed by the Dy. Commissioner, CGST, it is conveyed that the five properties which the petitioner company offers to furnish as security bears a cumulative purchase value of Rs. 9,80,51,000/- - Petitioner submits that the cumulative market value of the very same properties, as per the petitioner company's valuer would be Rs. 10,07,76,374/-.
Held: Whether the properties offered as security are unencumbered and whether the petitioner company is possessed of the original title deeds pertaining to these properties is critical since, according to the respondent, the GST liability of the petitioner company is Rs. 20.22 crores, which includes the principal amount of Rs. 17.26 crores along with interest amounting to Rs. 2.96 crores; that petitioner-company may also be liable for penalty although no show cause notice has been issued in that regard – Petitioner may, therefore, in the fitness of things, revert with instructions as to how the petitioner-company proposes to bridge the gap between the value of the properties and the amount claimed by the respondent - Petitioner-company is directed to file an affidavit in the course of the day in respect of the aspects as mentioned - Matter is to be listed on 5th March, 2021: High Court [para 4, 7, 8]
- Matter listed: DELHI HIGH COURT
2021-TIOL-534-HC-KAR-GST
Bright Road Logistics Vs JCCT
GST - Imposition of penalty, confiscation - Petitioner submits that the first respondent without considering the material placed has issued the impugned endorsement and further the first respondent has not considered the appeal on merits and rejected on unwarranted grounds; that the order is passed without providing an opportunity to the petitioner - A.G.A. fairly concedes that the first respondent has not assigned any reasons while rejecting the appeal filed by the petitioner and that no opportunity was granted to the petitioner before issuing the impugned endorsement.
Held: The first respondent without application of mind has proceeded to reject the appeal which is arbitrary and in contravention of principles of natural justice - The said endorsement is liable to be set aside - Accordingly, the writ petition is allowed - matter is remitted to first respondent to reconsider the appeal and pass appropriate order in accordance with law within a period of three months: High Court [para 8]
- Petition allowed: KARNATAKA HIGH COURT
2021-TIOL-88-AAR-GST
Wipro Enterprises Pvt Ltd
GST - The applicant-company is engaged in manufacture of toilet soaps, LED bulbs and fittings, other toiletries, and other consumer products at their various factories - Additionally, the applicant also obtained registration under various laws - The applicant is manufacturing and marketing Hand Sanitizer at a large scale primarily to combat the situation arising on account of pandemic COVID-19 - The Hand Sanitizer manufactured by the Applicant contains 95% v/v of Ethyl Alcohol, which is within the standard prescribed by the Indian Pharmacopoeia, the Applicant have rightfully obtained a drug license under the provisions of the Drugs and Cosmetics Act, 1940 - The applicant opined that on a perusal of the Tariff Entry and Explanatory Notes, Chapter Heading 3004 is the most appropriate chapter heading to cover medicaments used for therapeutic or prophylactic value - Hence the applicant approached the AAR seeking to know the appropriate classification of hand sanitizer for purpose of GST as well as the applicable rate of GST thereon.
Held - In the present case, it is seen that the alcohol-based hand sanitizers, as the name itself suggests, are to sanitize the hands and disinfect them & hence cannot be covered under Medicaments - The hand sanitizers are classifiable under Heading 3808 under the Customs Tariff Act - The hand sanitizers are liable to tax at the rate of 9% under CGST Act and at the rate of 9% under the KGST Act: AAR
-Application disposed of :AAR
2021-TIOL-87-AAR-GST
Hotel Sandesh Pvt Ltd
GST - The applicant-company is engaged in providing accomodation, food & beverages service under SAC 9963 - The applicant proposes to open a stand-alone restaurant at the Sri Chamarajendra Zoological Gardens, which is a Govt body - The Zoo authorities insisted that the applicant charge GST @ 5% on the supplies made from the Zoo premises on treating the said service as deemed canteen service - The applicant approached the AAR seeking to know the applicable rate of CGST & SGST for supply of food inside the restaurant situated in Zoological garden.
Held - The applicable Rate of GST (SGST and CGST) for the supply of food inside the restaurant (branch) situated in zoological garden, Mysuru is 5% (CGST-2.5% & KGST-2.5%), in terms of entry number 7(ii) of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended, if separate registration is obtained for the premises or separate account is maintained in respect of the premises - If the applicant maintains common account in respect of both the premises, it needs to discharge GST @ 5% (CGST-2.5% & KGST-2.5%) in respect of the supply made at the premises situated at Zoological garden, Mysuru and invariably need to reverse the input tax credit in terms of Section 17 of the CGST Act 2017 read with Rule 42 & 43 of CGST Rules 2017: AAR
-Application disposed of :AAR
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MISC CASE |
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INDIRECT TAX |
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2021-TIOL-536-HC-MUM-ST
Eminence Container Lines Vs UoI
ST - SVLDRS, 2019 - By email/order generated on 03.10.2020, the declaration of the petitioner was rejected on the ground of ineligibility with the remarks 'amount not fully quantified as on 30.06.2019 as per DGGI's report dated 20.02.2020' - Petitioners seek quashing of order dated 03.10.2020 passed by the designated committee rejecting the declaration of petitioner No. 1 dated 26.12.2019 under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 and further seeks a direction to the respondents to reconsider the said declaration and grant the relief(s) in terms of the aforesaid scheme - An additional prayer has been made for a direction to the respondents not to proceed further with the show cause-cum-demand notice dated 13.11.2019 issued by the Joint Director, Directorate General of GST Intelligence, Mumbai Zonal Office.
Held: Question as to whether eligibility of a declarant for making a declaration in terms of the scheme under the category of 'investigation, enquiry or audit' or maintainability of such a declaration on the ground that the amount of tax dues was not quantified on or before 30.06.2019 is no longer res integra - It is evident from the decisions in Thought Blurb - 2020-TIOL-1813-HC-MUM-ST , G.R.Palle Electricals - 2020-TIOL-2031-HC-MUM-ST & Saksham Facility P Ltd. - 2020-TIOL-2108-HC-MUM-ST that all that would be required for being eligible under the above category is a written communication which will include a letter intimating duty demand or duty liability admitted by the person concerned during inquiry, investigation or audit - For eligibility under the scheme, the quantification need not be on completion of investigation by issuing show-cause notice or the amount that may be determined upon adjudication - Further, under the scheme what is relevant is quantification of duty demand or duty liability in the manner indicated above on or before 30.06.2019 and not communication before that date - The scheme does not speak of communication; it is quantification which is relevant - What is of essence under the scheme is an admission of tax dues or duty liability by the declarant before the cut-off date which need not be of the exact figure upon determination by the authorities post 30.06.2019 - In the instant case, petitioner No. 2 in his statement before the Senior Intelligence Officer on 12.06.2019 had admitted gross service tax liability of Rs. 1,73,12,978.00 - While admitting the said figure, petitioner No. 2 did not include service tax on Ocean Freight on which petitioners claimed exemptions - However, in the show cause-cum-demand notice issued subsequently by the office of respondent No. 2 on 13.11.2019 this claim was brushed aside and upon addition of service tax on Ocean Freight the total service tax liability got enhanced to Rs. 1,96,02,184.00: High Court [para 14, 18, 20, 21]
ST - SVLDRS, 2019 - When there is a provision for granting personal hearing in a case where the declarant disputes the estimated amount, it would be in complete defiance of logic and contrary to the very object of the scheme to reject a declaration on the ground of being ineligible without giving a chance to the declarant to explain as to why its declaration should be accepted and relief under the scheme be granted: High Court [para 22]
ST - SVLDRS, 2019 - Respondents have averred in their affidavit that report from the DGGI, Mumbai Zonal Unit was called for pursuant to which report dated 20.02.2020 was furnished - This report was adverse to the petitioners inasmuch as it said that there was no full quantification of service tax dues prior to 30.06.2019 - On the basis of this report, the declaration of petitioner No. 1 was rejected - It is a settled proposition of law that when an authority relies upon a document, copy of the same should be made available to the aggrieved party so that the aggrieved party can respond to such document and effectively make its defence - Therefore, non-furnishing of report dated 20.02.2020 to the petitioners was in violation of the principles of natural justice which, therefore, vitiated the impugned decision taken - Order dated 03.10.2020 is set aside and matter is remanded back to the designated committee to consider the declaration of petitioner No. 1 dated 26.12.2019 afresh as a valid declaration in terms of the scheme under the category of investigation, enquiry and audit and thereafter grant the consequential relief(s) to the petitioner - Above exercise to be carried out within a period of eight weeks - Writ petition is accordingly allowed: High Court [para 23 to 25]
- Petition allowed : BOMBAY HIGH COURT
2021-TIOL-532-HC-MAD-CUS
Fourceess Diamond Pvt Ltd Vs JCC
Cus - Writ appeal is directed against the order dated 09.10.2020 = 2020-TIOL-1830-HC-MAD-CUS , which has dismissed the petition on the ground that the appellant has no justifiable reasons to bypass the alternative remedy available under the provisions of the Customs Act.
Held: [para 6 to 9]
+ Exercise of discretion by a Writ Court, despite availability of an alternate remedy, is a self-imposed restriction. There have been many exceptions to the said rule, where the Courts have exercised jurisdiction.
+ It is not in all cases where there is an alternate remedy, it can automatically be held that a writ is not maintainable. A writ could have been maintained by the appellant before this Court on the ground canvassed before it.
+ Bench is of the view that the issues raised in the writ petition are not purely questions of law, but mixed questions of fact, which would require a process of adjudication. Such matters cannot be decided by a Writ Court based on affidavits. Therefore, we do agree with the ultimate conclusion of the learned Writ Court that the appellant should avail the alternate remedy available under the Act.
+ Writ Appeal stands dismissed and the appellants are granted 60 days' time from the date of receipt of a copy of this judgment to file an appeal before the Commissioner of Customs (Appeals) and if the same is filed, the Commissioner of Customs (Appeals) shall entertain the appeal, without reference to the limitation as the writ petition was filed before this Court in the year 2016, which is well within the period of limitation, had the appellants filed appeals before the Commissioner of Customs (Appeals) at the relevant point of time.
- Appeal dismissed : MADRAS HIGH COURT |
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