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2021-TIOL-NEWS-081| April 07 2021
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
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INCOME TAX |
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2021-TIOL-809-HC-MUM-IT
Yashovardhan Birla Vs Addl.CIT
In writ, the High Court directs the Appellate Authority concerned to dispose off the appeal pending before it, within four weeks' time. It further directs that the assessment proceedings are to continue.
- Writ petition disposed of: BOMBAY HIGH COURT
2021-TIOL-806-HC-MAD-IT
CIT Vs Eswari Murugan Constructions
Whether the fact that the assessee made a provision for TDS in its accounts decides whether the assessee is bound by the provisions of the TDS or not - NO: HC Whether power of revision is to be exercised where the original assessment order is prejudicial to Revenue's interests, but is not erroneous - NO: HC
- Revenue's appeal dismissed: MADRAS HIGH COURT
2021-TIOL-805-HC-MAD-IT
Kallakuruchi Agricultural Producer Cooperative Vs ACIT
Whether power of revision u/s 263 is rightly exercised in circumstances where the AO allows deduction u/s 80P to the assessee, without making any enquiry or without proper application of mind - YES: HC
- Assessee's appeal partly allowed: MADRAS HIGH COURT
2021-TIOL-643-ITAT-DEL
Delhi Call Centre Pvt Ltd Vs DCIT
Whether no disallowance of depreciation on Car can be made when the Revenue has in principle accepted the assessee's claim of interest on car loan as well as claim of Car running expenditure as business expenditure - YES : ITAT
- Case Remanded: DELHI ITAT
2021-TIOL-642-ITAT-JAIPUR
ITO Vs Ishika Foods Pvt Ltd
Whether considering peculiar facts and circumstances of case especially when additional evidences have been sent to AO for necessary examination, CIT(A) is not wrong in admitting additional evidences - YES : ITAT
- Revenue's appeal dismissed: JAIPUR ITAT
2021-TIOL-641-ITAT-MUM
Tata Communication Ltd Vs DCIT
Whether carried forward MAT credit of amalgamating company can be taken credit of by amalgamated company – YES: ITAT
- Case remanded: MUMBAI ITAT
2021-TIOL-640-ITAT-VIZAG
Badeti Venkateswara Rao Vs ITO
Whether order passed by PCIT u/s 263 is bad in law as assessee explained source of cash deposits as sale proceeds of his business and AO has verified sources of cash deposits before passing assessment order - YES : ITAT Whether AO has acted within the scope of limited scrutiny and assessed income, after verification of the details - YES : ITAT
- Assessee's appeal allowed: VISAKHAPATNAM ITAT
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GST CASE |
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2021-TIOL-812-HC-AP-GST
JBT Jai Bharath Travels Vs DCST
GST - Petitioner seeks a Writ of Mandamus holding that the impugned Assessment Order passed by the 1st respondent and the action of the 2nd respondent in issuing Garnishee Notices under Sections 79(1)(c) of the GST Acts, 2017, to the 5th to 8th respondents even without serving the impugned order on the petitioner and even before the expiry of the period of limitation for filing Appeal, as illegal, arbitrary, without jurisdiction.
Held: Having found that the petitioner was not afforded a reasonable opportunity, this Court is of the considered view that the matter needs to be remitted back to the 1st respondent - Accordingly, this writ petition is allowed and the impugned order dated 24.06.2020 passed by the 1st respondent is set aside and the matter is remanded to 1st respondent with a direction to afford personal hearing to the petitioner wherein the petitioner is entitled to take the relevant pleas which are permissible to him under law and the 1st respondent shall pass Assessment Order afresh on merits in accordance with law expeditiously: High Court [para 5, 6]
- Petition allowed: ANDHRA PRADESH HIGH COURT
2021-TIOL-112-AAR-GST
Arvind Envisol Ltd
GST - Applicant is engaged in providing end-to-end solutions for water treatment, industrial waste-water treatment, sewage treatment and zero liquid discharge solutions, on engineering and procurement construction/turnkey basis, by setting up effluent treatment plant (ETP), sewage treatment plant (STP), Packaged STP (PSTP), and Zero Liquid Discharge Plant (ZLD) - The applicant also provides services in the nature of operation and maintenance of such plants - Applicant seeks a ruling as to Whether the service of supply, erection, commissioning and installation of waste-water pre-treatment plant followed by operation and maintenance of such plant attracts rate 12% of GST in terms of notification No. 11/2017 Central Tax (Rate).
Held: It is observed that service of supply, erection, commissioning and installation of waste-water pre-treatment plant qualifies as Composite supply of Works Contract as defined in clause (119) of section 2 of the Central Goods and Services Tax Act, 2017 - The service of setup of ZLD plant is supplied to the KPCL which is Government Entity, thus all the conditions of Entry No.3(iii) of the Notification No.11/2017 - Central Tax (Rate) dated 28.06.2017 as amended by the Notification No.20/2017- Central Tax (Rate) dated 22.08.2017 and Notification No. 31/2017 - Central Tax (Rate) dated 13.10.2017 are satisfied - Hence the services of setting up of ZLD plant supplied to KPCL by the applicant are classified under SAC 9954 and liable to tax at the rate of 6% under the CGST Act, 2017 and similarly taxable at the rate of 6% under the KGST Act, 2017 - Insofar as O&M service is concerned, it is inclusive of supply of spares as well as maintenance service, which are taxable supplies - Supply of spares arises consequent to maintenance and hence the said supply is ancillary to the supply of service of maintenance of the ZLD plant - Thus these taxable supplies are naturally bundled and supplied in conjunction with each other where the maintenance service is predominant and hence becomes principal supply - Therefore the O&M service qualifies to be a composite supply of maintenance service - It is concluded that Service of supply, erection, commissioning and installation of waste-water pre-treatment plant (ZLD plant) and the services of Operation and Maintenance (O&M) of the said plant together is composite supply of works contract classified under SAC 9954 and is liable to CGST @ 6% and KGST @6% in terms of entry No.3(iii) of No. 11/2017-CTR: AAR
- Application disposed of: AAR
2021-TIOL-111-AAR-GST
Bishops Weed Food Crafts Pvt Ltd
GST - Applicant is engaged in the business of provision of services by way of Leasing of residential units for use as residence to Tenants – On the questions on which a ruling is sought, AAR holds that Leasing of property for use as residence along with basic amenities is covered under accommodation services, classifiable under SAC 996311 and hence would qualify as composite supply under Section 2(30) of the CGST/KGST Act, 2017; Renting of property by Applicant is not covered under entry 12 of Notification 12/2017-Central Tax (Rate) as their services are covered under accommodation services falling under SAC 996311; Exemption under entry 14 of Notification 12/2017-Central Tax (Rate) is available to the transaction of the applicant; Renting of residential dwelling is not for use as residence by business entity but in the course or furtherance of the business of the said entity and hence exemption under entry No.12 of 12/2017-CTR is not applicable - Leasing of such property for residential sub-letting would not be covered under the exemption for residential dwelling under entry 12 Notification 12/2017-Central Tax (Rate) as the two are different and individual transactions: AAR
- Application disposed of: AAR
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MISC CASE |
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2021-TIOL-808-HC-MAD-VAT
Tayub Mohamed Hajee Moosa And Company Vs Additional Commissioner(CT)
Whether the Assistant Commissioner has the jurisdiction to reject the refund claim on the ground that Form W has been filed beyond 180 days - NO: HC
- Writ petitions allowed: MADRAS HIGH COURT
2021-TIOL-807-HC-MAD-VAT
Swathy Chemicals Ltd Vs JCCT
Whether revisionary order passed on the strength of judgment passed by the Supreme Court, can be sustained, where the SCN preceding such order omits to mention as to how such judgment would be applicable to the assessee's case - NO: HC
Whether the Revenue is clearly barred from directing the original assessment order to be restored on grounds, which were not contained in the original assessment order - YES: HC
- Writ petitions allowed: MADRAS HIGH COURT
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INDIRECT TAX |
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2021-TIOL-811-HC-KAR-ST
MK Mathai Vs Asstt. CCE, C & ST
ST - Petitioners have challenged the proceedings initiated against them by the respondent, for the offences punishable under Sections 89 [Offences and Penalties] and 90 [Cognizance of Offences] of the Finance Act, 1994 - It is alleged that the accused have actively participated in the evasion of service tax amounting to Rs.1,38,88,566/- pertaining to the period from 2009-2010 to December 2012; that the petitioners have not paid the service tax as noted above beyond the period of six months from the date on which such payment became due.
Held: By virtue of Circular No. 201/11/2016-Service Tax , as a consequence of the amendment by the Finance Act, 2016, the power of arrest in Service Tax is available only if a person collects any amount as service tax but fails to pay the amount so collected to the credit of the Central Government beyond the period of six months from the date on which such payment becomes due and the amount exceeds Rs.2 crores - Amount involved in this case is less than Rupees two crores - Further, it is contended that out of the total tax dues amounting to Rs.1,38,88,566/- for the period from April 2009 to December, 2012, the assessee had remitted 50% of the tax dues i.e. Rs.69,44,254/- during December, 2013 and the remaining tax dues to the tune of Rs.69,44,254/- has been paid along with interest which fact needs verification by respondent Revenue - Petitions are allowed and entire proceedings pending before the Prl . Civil Judge and JMFC, Hospet, in F.R.CC No. 521/2015 and 522/2015 against the petitioners are hereby quashed: High Court [para 6 to 8]
- Petitions allowed: KARNATAKA HIGH COURT 2021-TIOL-810-HC-KAR-CUS
Rajesh Exports Ltd Vs UoI
Cus - Appellant has assailed the order dated 29th September 2005 passed by the single Judge - Appellant fairly submits that the issue involved has been covered by the Judgment of the Supreme Court in DGFT Vs. M/s. Kanak Exports And Another = 2015-TIOL-275-SC-EXIM - Further, the respondents have issued Notice No. 7/2018 dated 8th February 2017 and the appellant may be granted liberty to take appropriate steps for availing the benefit, if any, under the said notice.
Held: Order dated 29th September 2005 passed by the single Judge is set aside and the Writ Appeal is disposed of in view of the decision of the Supreme Court in DIRECTOR GENERAL OF FOREIGN TRADE AND ANOTHER (supra) - Appellant shall be entitled to take steps to avail the benefit of Notice dated 7/2017 dated 8th February 2017 - Appeal disposed of: High Court [para 5]
- Appeal disposed of: KARNATAKA HIGH COURT
2021-TIOL-192-CESTAT-MAD Agfa Healthcare Pvt Ltd Vs CC
Cus - The appellant filed Bills of Entry for import of "Digitizer" under CTH 90221490 without availing the benefit of Notification No. 12/2012-C.E. - The bills of entry were reassessed extending the benefit of Notfn - The appellant had already paid duty without availing the benefit of notification and therefore requested to refund the excess duty paid by them - The authorities below rejected the same observing that it is beyond one year when computed from the date of reassessment of bills of entry - There is no dispute that the appellant has paid excess duty after reassessment of the bills of entry by extending the benefit of Notification No. 12/2012-C.E. - The refund has been rejected on the ground that it is barred by limitation - When the appellant has approached higher forum aggrieved by rejection of notification benefit, it is sufficiently implied that the duty has been paid under protest - The Tribunal in the case of Bayshore Glass Trading Pvt. Ltd. 2002-TIOL-561-CESTAT-KOL has held that when appeal is filed against the assessment of bill of entry, the same has to be considered as a protest in paying duty - Following the said decision, it is held that the rejection of refund on the ground of time-bar is unsustainable - The impugned order is set aside: CESTAT
- Appeal allowed: CHENNAI CESTAT
2021-TIOL-191-CESTAT-BANG
BASF India Ltd Vs CCE & CT
CX - Issue relates to the eligibility of CENVAT credit on disputed services viz. services relating to construction of road and storm water drain/civil work at tanker parking facility - The period involved was prior to 1.4.2011 when the definition of input service had wide ambit as it included the words "activities relating to business" - The words "activities relating to business" includes all the services which are commercially required for purpose of carrying on business of manufacture or provider of output service because in the absence of these services it is difficult for the appellant to carry on his business activities - This issue has been considered by Tribunal in case of Raymond UCO Denim 2017-TIOL-3450-CESTAT-MUM wherein the Tribunal has observed that much water has flown after the amendment in the definition of input services with effect from 1.4.2011 and prior to 1.4.2011, construction of road and drainage system inside the factory premises was considered to be falling under the definition of input service and the appellant was entitled to CENVAT credit of the same - Further, in Madras Cement Ltd. 2018-TIOL-2282-CESTAT-MAD , the Tribunal has observed that the Tribunals as well as High Courts have held that most of all the activities relating to business would be covered by definition of input service during the period prior to 1.4.2011 - Hence, by following the ratio of said decision, the impugned order is not sustainable in law and therefore, same is set aside: CESTAT
- Appeal allowed: BANGALORE CESTAT
2021-TIOL-190-CESTAT-MAD
ATC Tyres Pvt Ltd Vs CGST & CE
ST - The appellant had filed refund claims under Notification No. 40/2012-S.T. as amended by Notification No. 12/2013-S.T. - As per the said Notification, the services on which service tax is leviable under section 66B of Finance Act, 1994, received by a unit located in a SEZ or Developer of SEZ and used for authorized operations, are exempted from whole of the service tax, education cess and secondary and higher education cess leviable thereon - Same was partly rejected - The foremost argument put forward by appellant being a SEZ unit is exempted from payment of taxes / duties under Section 26 of SEZ Act - The issue whether conditions imposed as per Notification issued under Section 93 of Finance Act would prevail over Section 26 of SEZ Act so as to deny the exemption from tax was considered by High Court in case of GMR Aerospace Engineering Ltd. - In case of Cybercam Datamotive Information Ltd. 2018-TIOL-410-CESTAT, the said decision was followed by Tribunal holding that conditions prescribed in notification cannot be applied so as to deny the refund when substantial conditions prescribed in SEZ Act have been fulfilled - As per SEZ Act, when the service has been used for authorized operations exemption would be eligible - Rejection of refund claim stating that refund is time-barred as well as the classification of services is different or that the services are not specified services cannot sustain - An amount of Rs.9,841/- has been rejected being refund of SBC and KKC - All these invoices are prior to 2016 - The amendments introduced in Notification No. 12/2013-S.T. so as to exempt SBC & KKC have come into effect only on 3.2.2016 and 1.6.2016 - Thus, the authorities below have rightly rejected the refund claim with regard to SBC & KKC: CESTAT
- Appeals partly allowed: CHENNAI CESTAT |
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