2021-TIOL-NEWS-069, Dated:Tuesday, March 23, 2021

2021-TIOL-NEWS-069| March 23 2021

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INCOME TAX


	2021-TIOL-142-SC-IT Pr.CIT Vs Karnataka Power Corporation Ltd In writ, the Supreme Court directs that notice be issued to the parties and that the matter be tagged with the case of CIT Vs Bank of India Civil Appeal No. 8943 of 2019. - Notice issued: SUPREME COURT OF INDIA 2021-TIOL-687-HC-DEL-IT Prime Time India Pvt Ltd Vs Pr.CIT In writ, the High Court observes that the issue as to whether if the assessment order is framed in case of an assessee u/s 143(3) based on search executed in another's assessee's case, then whether the same would qualify as a search case, warrants examination. Hence it directs that notices be issued to the parties concerned & permits 4 weeks' time to file counter affidavits. It further directs that the matter be listed for hearing on May 04, 2021. - Case deferred: DELHI HIGH COURT 2021-TIOL-686-HC-MAD-IT Pr.CIT Vs Mansi Finance Chennai Ltd Whether re-opening of assessment beyond 4-year limitation period, without any failure of assessee to make full & true disclosure of material facts, can be sustained - NO: HC - Revenue's appeal dismissed: MADRAS HIGH COURT 2021-TIOL-684-HC-MAD-IT Pr.CIT Vs Kaleesuwari Refinery Pvt Ltd Whether any claim made by assessee on account of setting off of service tax liability is an allowable expenditure - YES: HC - Revenue's appeal dismissed: MADRAS HIGH COURT 2021-TIOL-558-ITAT-DEL Rmp Holding Pvt Ltd Vs ITO Whether where assessee has not failed to disclose fully and truly all material facts necessary for assessment u/s 147, notice issued u/s 148 after four years from end of relevant AY where original assessment was framed u/s 143(3) is illegal and invalid as proceedings are without jurisdiction - YES: ITAT - Assessee's appeal allowed: DELHI ITAT 2021-TIOL-557-ITAT-DEL Shankar Trading Company Pvt Ltd Vs DCIT Whether for lease of commercial property, annual escalation would be more than residential property - YES: ITAT - Assessee's appeal allowed: DELHI ITAT 2021-TIOL-556-ITAT-MUM Reena A Ajmera Vs DCIT Whether no addition can be made in case of an unabated assessment if no incriminating material is found in course of search - YES: ITAT Whether assessment made pursuant to search operation must be based on incriminating material discovered thereunderand not on recorded statements - YES: ITAT - Assessee's appeal allowed: MUMBAI ITAT 2021-TIOL-555-ITAT-MUM Trent Ltd Vs Addl.CIT Whether where a systematic economic activity is being carried on by assessee, it can be termed as industrial undertaking for purposes of sec. 35D - YES: ITAT Whether amortization of expenditure is admissible as revenue as per IT Act, 1961 - YES: ITAT - Assessee's appeal allowed: MUMBAI ITAT 2021-TIOL-554-ITAT-AHM JCIT Vs Radhe Developers India Ltd Whether when assessee establishes that it has complied with conditions specified u/s 68 of IT Act, 1961, AO shall not make additions for unexplained cash received thereunder - YES: ITAT - Revenue's appeal dismissed: AHMEDABAD ITAT

GST CASE


	2021-TIOL-685-HC-MAD-GST Sri Kanniga Parameswari Modern Rice Mill Vs STO TNGST - The challenge is to the four orders of assessment passed in terms of Tamil Nadu Goods and Service Tax Act, 2017 - Admittedly, personal hearing has not been granted to the petitioner prior to passing of impugned orders and it is contrary to the provisions of Section 74(5) of TNGST Act, which mandates that an opportunity of personal hearing shall be granted in all cases where a specific request is received or where the Officer contemplates adverse decision against petitioner - The impugned order is set aside on the ground of violation of principles of natural justice - Let the petitioner appear before Assessing Authority on 24th of March, 2021 along with materials, if any, in support of its stand without expecting any further notice in this regard: HC - Writ Petitions disposed of: MADRAS HIGH COURT 2021-TIOL-100-AAR-GST State Examination Board GST - State Examination Board has nothing to do with imparting education - State Examination Board is a Board established by the Government of Gujarat for the limited purpose of conducting various types of examinations and would, therefore, not be covered under the definition of 'Educational institution' - The applicant is eligible to claim exemption benefit under Sr.No.5 of Notification No.12/2017-Central Tax(Rate) dated 28.06.2017 (as amended from time to time), in respect of services supplied for the exams mentioned at Sr.No.9 to 15 of the list of exams - However, no such exemption is available in respect of services supplied for the exams mentioned at Sr.No.1 to 8 and 16 to 23 of the list - The applicant is not eligible to claim exemption benefit under Sr.No.66(a) & (aa) of Notification No.12/2017-Central Tax(Rate) dated 28.06.2017: AAR - Application disposed of :AAR 2021-TIOL-99-AAR-GST Baroda Medicare Pvt Ltd GST - Supply of medicines, surgical items, implants, consumables and other allied items provided by the hospital through their in-house pharmacy used in the course of providing health care services as well as supply of food and room on rent to in-patients admitted to the hospital for diagnosis, or medical treatment or procedures is a composite supply of In-Patient Healthcare Service - Supply of in-patient health care services by the applicant hospital as defined in Para 2( zg ) of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended, is exempted from CGST as per Sl. No. 74 of the above notification: AAR GST - Applicant will be liable to pay GST @ 18% (CGST @9% +SGST@9%) on the payment received directly from the business entity for health services provided to employees of the business entities in relation to 'Occupational Health Check-up' (OHC) or preventive care along with ambulance facility, and allied medical services under "Human health and social care services", in terms of S. No. 31 of the Table of the Notification No.11/2017-Central Tax (Rate): AAR - Application disposed of :AAR

MISC CASE


	2021-TIOL-141-SC-VAT-LB CTT Vs Sony India Pvt Ltd In writ, the Larger Bench of the Supreme Court directs that the matter be listed for hearing on a non-miscellaneous day after two weeks for final disposal. - Case deferred: SUPREME COURT OF INDIA 2021-TIOL-680-HC-MAD-VAT TCS Trade Links Vs State Tax Officer Whether an assessee is entitled to choose between benefits, where multiple benefits are available to it - YES: HC Whether therefore, an assessee can be compelled to avail exemption being provided, merely because such exemption is available - NO: HC - Writ petition allowed: MADRAS HIGH COURT 2021-TIOL-679-HC-AHM-VAT Oceanic Foods Ltd Vs State Of Gujarat Whether provision of Section 34(8A) of GVAT Act can be invoked, if no proceedings either u/s 35 or Section 75 of VAT Act were pending consideration at said time - NO: HC - Assessee's writ application allowed: GUJARAT HIGH COURT

INDIRECT TAX

2021-TIOL-165-CESTAT-CHD

Tech Sphere Infrastructure Vs CCE & ST

ST - The appellant is a service provider registered as contractor and had constructed low cost houses for EWS against a tender floated by Haryana Housing Board - As issue was whether the construction services provided by them to Haryana Housing Board are exempt or not being a government authority and to that extent the Revenue at the relevant time was of the view that Haryana Housing Board is not a government or local authority but after the decision in case of M/s Bharat Bhushan Gupta & Company 2016-TIOL-1775-HC-P&H-ST , the Revenue changed their view and accepted that Haryana Housing Board is a government or local authority, therefore, the sole case of Revenue hinges on the premise that the service provided by appellant to Haryana Housing Board is to a government or local authority; but initial stage, during the period 2014-15, the view entertained by Revenue that the said service was taxable and not entitled for exemption, that's why Revenue has sanctioned the refund claim for period 2014-15 which was filed too late in 2018 holding that Haryana Housing Board is a government or local authority and the service provided to them are exempt from service tax - As the Revenue during earlier period has entertained the refund claim filed by appellant, therefore, balance of convince lies in favour of appellant that when the issue whether the activity provided by appellant to Haryana Housing Board is exempt being a government or local authority was pending before the High Court of Punjab and Haryana in case of M/s Bharat Bhushan Gupta & Company and the same was settled by High Court holding that the services provided to Haryana Housing Board are exempt from payment of service tax being a local/government authority - Thereafter, the appellant was eligible to file the refund claim - Thus, the time limit prescribed under Section 11B of the Act is not applicable under Notification No. 09/2016 as the course of action arose after the said decision of High Court - Further, Haryana Housing Board has also filed refund claim which was entertained by Revenue and the same has been granted and no appeal has been filed against the said order, therefore, on the principle of equity also requires that the appellant is entitled to claim the refund of the service which is exempt on which they have paid service tax - The impugned order qua rejecting the refund claim for the period 2015-16 is set aside and the same is required to be refunded along with interest: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2021-TIOL-164-CESTAT-MAD

Johnson Lifts Pvt Ltd Vs CGST & CE

CX - By this appeal, assessee has challenged the rejection of its plea as to the appropriation of refund due to it in respect of one of its units against the demand in respect of its another unit - Undisputedly, the appellant's request for appropriation was made vide its request letter dated 09.10.2017 - There is also a communication from Deputy Commissioner that no refund claim was filed - Considering the change in law with introduction of C.G.S.T., the Commissioner (A) while considering refund/adjustment claim has allowed the appropriation/adjustment of differential duty to be paid by appellant's Butibori Unit against the excess amount of appellant's Poonamallee Unit - Since the appellant unit (Butibori) was under LTU, had there been no implementation of C.G.S.T. Act, 2017 , then the appellant could have normally adjusted the differential Central Excise Duty in LTU - In fact, though this was brought to the notice of First Appellate Authority, the same has been ignored for the reasons best known to First Appellate Authority - Admittedly, the excess duty paid by appellant that has remained with Revenue, has to be refunded to the appellant by following the due process of law as prescribed in the statute - Therefore, matter is remanded back to the file of Adjudicating Authority to look into the refund due, as calculated by the appellant, and then appropriate/adjust excess duty of the Poonamallee Unit, if any, available thereafter towards duty and interest liability of the unit in appeal: CESTAT

- Appeal disposed of: CHENNAI CESTAT

2021-TIOL-163-CESTAT-MUM

Hazel Mercantile Ltd Vs CC

Cus - The appellant had imported two consignments of 'citric acid monohydrate' which by Notification No. 78/2000-Customs was liable to anti-dumping duty to the extent of being in excess of US$ 1677.06 per metric ton if imported from Peoples' Republic of China at value less than the stipulated benchmark - It was held by adjudicating authority that the goods liable to duty under the said notification - No evidence found in the submissions of appellant to counter the trace records of movement of containers in which the consignments were landed in India; these do indicate the source as Peoples' Republic of China - Nor is there any further substantiation of their claim that the goods originated in Korea save a bald assertion - The goods were required to be subject to test of compliance with conditions in said notfn - The appellant is correct in pointing out that the provisions of Export Import Policy are intended to protect importers from detriments arising from restrictive impositions under policy mechanism after effecting shipment from port of export - Levy of duties is governed by section 15 of Customs Act, 1962 in accordance with which duties existing on the date of filing of bill of entry imposes liability - As Notification No. 78/2000-Customs had ceased to have effect from 23rd November 2003, imports against bill of entry dated 15.12.2003 could not, irrespective of origin, be subjected to duty thereon - Accordingly, liability to anti-dumping duty is limited to the import of 66 metric tons against bill of entry dated 19.11.2003; while upholding the demand of Rs. 29,35,142.43 and the rest is held to be not sustainable: CESTAT

- Appeal partly allowed: MUMBAI CESTAT

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GUEST COLUMN

By Mr Raghavan Ramabadran & Janane G

An insight into the new re-assessment scheme

RE-ASSESSMENT under the IT Act has always been a subject matter of frequent stand-off between the Assessors and the Assessee. The Finance Bill, 2021 proposes to revamp the entire scheme of re-assessment at a time when one thought jurisprudence on this subject has well evolved with various Courts...