2021-TIOL-NEWS-190 Dated: Thursday, August 12, 2021

2021-TIOL-NEWS-190| August 12, 2021

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INCOME TAX


	2021-TIOL-211-SC-IT Pr.CIT Vs Vilson Particle Board Industries Ltd In writ, the Supreme Court observes that it is not inclined to exercise jurisdiction under Article 136 of the Constitution of India. Hence it dismisses the Revenue's SLP along with pending applications. - Revenue's SLP dismissed: SUPREME COURT OF INDIA 2021-TIOL-210-SC-IT Pr.CIT Vs Parasben Kasturchand Kochar In writ, the Supreme Court observed that it is not inclined to interfere with the findings of the High Court. - Revenue's SLP dismissed: SUPREME COURT OF INDIA 2021-TIOL-209-SC-IT DCIT Vs Jayesh T Kotak In writ, the Supreme Court finds there to be no grounds to interfere with the orders passed by the High Court. - Revenue's SLP dismissed: SUPREME COURT OF INDIA 2021-TIOL-1313-ITAT-DEHRADUN ACIT Vs Naini Tissues Ltd Whether when substantial expansion is carried out u/s 80IC within 10 years period, the previous year in which expansion is undertaken becomes initial AY & from that AY, the assessee is entitled to 100% deduction of profits & gains - YES: ITAT - Revenues's appeals dismissed: DEHRADUN ITAT 2021-TIOL-1312-ITAT-DEL Vidya Education Investments Pvt Ltd Vs DCIT On appeal, the Tribunal observes that the issues at hand stand settled in favor of the assessee vide judgment passed by the Tribunal in the assessee's own case for past AYs. Hence the present appeals are disposed off accordingly, considering the identical facts and circumstances involved. - Assessee's appeals partly allowed: DELHI ITAT 2021-TIOL-1311-ITAT-DEL DCIT Vs Gee Ispat Pvt Ltd Whether penalty imposed u/s 271(1)(c) is sustainable where penalty notice cites furnishing of inaccurate particulars as reason, whereas the penalty order cites concealment of income as reason - NO: ITAT - Revenue's appeal dismissed: DELHI ITAT 2021-TIOL-1310-ITAT-DEL RMG Buildwell Pvt Ltd Vs ITO Whether since the difference between the circle rate and the sale consideration from sale of flats is less than 10%, no addition is called for u/s 50C - YES : ITAT - Assessee's appeal allowed: DELHI ITAT 2021-TIOL-1309-ITAT-DEL TCS E Serve International Ltd Vs ACIT Whether section 10A is pari materia with section 10AA and therefore, claim of the assessee for not reducing brought forward losses from profit of business of current year before allowing deduction u/s. 10AA is proper - YES : ITAT Whether Revenue is not correct in reducing deduction u/s 10AA by such an amount which is written back by assessee on account of unclaimed balances written back - YES : ITAT - Assessee's appeal allowed: DELHI ITAT 2021-TIOL-1308-ITAT-DEL Praveen Garg Vs ITO Whether CIT (A) can enhance an assessment or penalty or reduce the amount of refund unless the assessee was given a reasonable opportunity of showing cause against such assessment or reduction - No: ITAT Whether unexplained cash deposits without any explanation as to its source calls for enhancement of income - Yes: ITAT - Assessee's appeals dismissed: DELHI ITAT

MISC CASE


	2021-TIOL-1675-HC-MUM-VAT Brijda Roadlines Pvt Ltd Vs Assistant Vat Officer Whether the determination made by the roster has to be read harmoniously with the Appellate Side Rules and apparently conflicting situations reconciled - YES: HC Whether in case of conflict which cannot be reconciled by such harmonious reading, the roster has to yield to the provisions of such Rules which have been framed by the High Court in exercise of power conferred by Article 225 of the Constitution - YES: HC - Case deferred: BOMBAY HIGH COURT

GST CASE


	2021-TIOL-208-SC-GST Pr.CC Vs Amit Cotton Industries IGST - Refund - Circular No. 37/2018-Cus., dated 9th October 2018 cannot run contrary to the statutory rules, namely Rule 96 of the CGST Rules, 2017 - Circular cannot be said to have any legal force - Bench is not impressed by the stance of the respondents that although the writ-applicant might have returned the differential drawback amount, yet as there is no option available in the system to consider the claim, the writ-applicant is not entitled to the refund of the IGST - Circular explains the provisions of the drawback and it has nothing to do with the IGST refund - Rule 96 of the Rules is very clear - The shipping bill that the exporter may file is deemed to be an application for refund of the integrated tax paid on the goods exported out of India and the claim for refund can be withheld only in the following contingencies as enumerated in sub-clauses (a) and (b) respectively of clause (4) of Rule 96 of the Rules, 2017 - Hence the High Court allowed the Writ-application - The Revenue were directed to immediately sanction the refund of the IGST paid in regard to the goods exported, i.e. 'zero rated supplies', with 7% simple interest from the date of the shipping bills till the date of actual refund. Held - There is 520-day delay on part of the Revenue in filing the present petition and there is no satisfactory explanation for such inordinate delay - Hence the Revenue's Special Leave to Petition along with the accompanying application for condonation of delay is set aside: SC - Revenue's SLP dismissed: SUPREME COURT OF INDIA 2021-TIOL-1669-HC-MAD-GST Hec India LLP Vs CGST & CE GST - Department has blocked the petitioner's Input Tax Credit (ITC) - Show Cause notice was issued by the second respondent on 17.12.2020 - Relief sought in the present writ petition is to direct the respondents to permit the petitioner to debit a sum of Rs.47,30,457/- from its electronic credit ledger. Held: Issue which is raised in the present writ petition is in the process of adjudication before the competent authority - Intermittent intervention by the High Courts in a writ proceedings are not desirable, as the same would cause prejudice to the interest of the either of the parties - The show cause notice issued by the Department would reveal that certain allegations are raised against the petitioner - All these aspects require an adjudication based on the documents and evidences to be produced by the respective parties - Thus, the petitioner is at liberty to redress their grievances before the competent authorities and this Court cannot issue any such direction as such prayed for, as the proceedings are in progress - The authorities are directed to conclude the proceedings as expeditiously as possible - Writ petition stands disposed of: High Court [para 4, 5] - Petition disposed of: MADRAS HIGH COURT 2021-TIOL-1668-HC-MAD-GST Sree Rajendra Steels Vs Assistant Commissioner (CT) GST - Petitioner had earlier approached this Court in W.P. No. 280 of 2021, seeking a direction to unblock the Input Tax Credit (ITC) available in the electronic credit ledger - By order dated 08.01.2021 in W.P. No. 280 of 2021, the petitioner was permitted to approach the appropriate authority seeking relief that would be considered, in accordance with law - Petitioner has approached the respondent by way of a written representation – It is the case of the respondent that the claim of ITC is itself bogus insofar as there was no actual movement of the goods at all - To this end, a show cause notice has been issued on 30.03.2021 and the petitioner has been afforded an opportunity of personal hearing on 07.04.2021 but same has not been availed citing lock-down on account of the on-going pandemic – Thereafter, impugned order dated 22.06.2021 has been passed rejecting the claim for ITC by simply stating that 'the tax payer has claimed ITC using fake invoices. Hence the corresponding ITC is disallowed' – this order is under challenge. Held: Representation of the petitioner dated 18.02.2021 encloses several documents that must be taken into account in coming to a decision as to whether the petitioner is entitled to succeed or not, and this has to be done by way of a reasoned, speaking order - The impugned order hardly meets the standards to be followed in the framing of an assessment and is hence set aside – Petitioner shall appear before the authority on 16th August of 2021 at 10.30 am with its reply to the show cause notice and the authority after hearing the petitioner, decide the claim of ITC by way of a speaking order – Petition allowed: High Court [para 5, 6] - Petition allowed: MADRAS HIGH COURT

INDIRECT TAX

2021-TIOL-1674-HC-MAD-CX

Hatsun Agro Products Ltd Vs Joint Secretary To Government Of India

CX - Writ Petition challenges the order dated 29.06.2012 passed by the first respondent rejecting the revision application filed by the petitioner u/s 35EE of the CEA, 1944 preferred against the Order-In-Appeal dated 23/27.09.2010 passed by the Commissioner of Central Excise (Appeal), Salem - Petitioner submits that the impugned order has been passed by the Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In-Appeal which had been challenged before him in that revision application, and which is impermissible in law - Petitioner further places reliance on the decision of this Court in S.Moinuddin -vs- Joint Secretary, Government of India, Ministry of Finance, New Delhi (dated 24.01.2017 in W.P. No. 16682 of 2016) , wherein this Court has interfered with the order that had been impugned therein in respect of similarly placed persons on that sole ground and had directed the matter to be heard by an authority after taking corrective measures in that regard - Counsel for Revenue states that subsequently, the Revisional Authority has been re-constituted, taking note of the anomaly pointed out by this Court.

Held: Impugned order is quashed and the matter is remitted to the present Revisional Authority under Section 35EE of CEA, 1944/129DD of Customs Act, 1962 for fresh consideration of the matter - It shall be incumbent upon the Revisional Authority, after affording full opportunity of hearing to the petitioner, to deal with each of the contentions raised and pass reasoned orders on merits and in accordance with law - Petition disposed of: High Court [para 4]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1673-HC-MAD-CX

Executive Officer Vs CCE

CX - Petitioner states that the appeal filed against the Order-in-Original was dismissed on the ground that the petitioner has not complied with the condition of pre-deposit; that the petitioner is now ready and willing to pay the pre-deposit and earlier had not paid in view of the fact the Bank Accounts of the petitioner were frozen – Order-in-appeal is under challenge in the present writ petition.

Held: Perusal of the order impugned would reveal that the appeal was rejected not only on the ground of non-compliance of the mandatory pre-deposit made under the provisions of the Central Excise Act, but also on the ground of delay in filing the appeal - Petitioner states that the Writ Appeal was pending and the order was passed in W.A.No.1158 of 2018 on 17.05.2018 – That in view of the pendency of the Writ Appeal during the relevant point of time before the Division Bench of this High Court, the appeal was filed belatedly - Court is of the considered opinion that the appeal filed by the aggrieved persons have to be decided on merits in all circumstances - If the reasons stated for the delay is acceptable, then the Courts may consider the same and condone the delay by providing opportunity to the aggrieved persons and adjudicate the issues on merits and in accordance with law - This being the factum established, the order impugned passed by the 1st respondent in Appeal No.145/2018-ST dated 24.08.2018 is quashed - The petitioner is directed to comply with the condition of pre-deposit as contemplated under the Central Excise Act, 1944, within a period of four weeks pursuant to which the 1st respondent shall entertain the appeal and dispose of the appeal on merits and in accordance with law and by affording opportunity to all the parties concerned - Writ Petition disposed of: High Court [para 6, 7]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1672-HC-MAD-CUS

Kalikkavlasu Primary Cum Industrial Weavers Coooperative Production And Sales Society Ltd Vs Joint Secretary To Ministry Of Finance

Cus - Writ Petition challenges the order dated 16.12.2013 passed by the first respondent rejecting the revision application filed by the petitioner u/s 129DD of the Customs Act, 1962 preferred against the Order-In-Appeal dated 27.08.2012 passed by the Commissioner of Custom & Central Excise (Appeals), Tiruchirappalli - Petitioner submits that the impugned order has been passed by the Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In-Appeal which had been challenged before him in that revision application, and which is impermissible in law - Petitioner further places reliance on the decision of this Court in S.Moinuddin -vs- Joint Secretary, Government of India, Ministry of Finance, New Delhi (dated 24.01.2017 in W.P. No. 16682 of 2016) , wherein this Court has interfered with the order that had been impugned therein in respect of similarly placed persons on that sole ground and had directed the matter to be heard by an authority after taking corrective measures in that regard - Counsel for Revenue states that subsequently, the Revisional Authority has been re-constituted, taking note of the anomaly pointed out by this Court.

Held: Impugned order is quashed and the matter is remitted to the present Revisional Authority under Section 129 DD of the Act for fresh consideration of the matter - It shall be incumbent upon the Revisional Authority, after affording full opportunity of hearing to the petitioner, to deal with each of the contentions raised and pass reasoned orders on merits and in accordance with law - Petition disposed of: High Court [para 4]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1671-HC-MAD-CUS

Hyundai Motor India Ltd Vs Joint Secretary (Revision Application)

Cus - Writ Petition challenges the order dated 01.08.2012 passed by the first respondent rejecting the revision application filed by the petitioner u/s 129DD of the Customs Act, 1962 preferred against the Order-In-Appeal dated 20.04.2011 passed by the Commissioner of Customs (Appeals), Chennai - Petitioner submits that the impugned order has been passed by the Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In-Appeal which had been challenged before him in that revision application, and which is impermissible in law - Petitioner further places reliance on the decision of this Court in S.Moinuddin -vs- Joint Secretary, Government of India, Ministry of Finance, New Delhi (dated 24.01.2017 in W.P. No. 16682 of 2016), wherein this Court has interfered with the order that had been impugned therein in respect of similarly placed persons on that sole ground and had directed the matter to be heard by an authority after taking corrective measures in that regard - Counsel for Revenue states that subsequently, the Revisional Authority has been re-constituted, taking note of the anomaly pointed out by this Court.

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1670-HC-MAD-CUS

Kiruba Export Vs CC

Cus - Order-in-Original dated 17.03.2021 is under challenge in the present writ petition.

Held: Appellate remedy contemplated under the Act is efficacious and able to deal with various possible circumstances and the powers are conferred to issue directions to remand the matter, set aside the order, including the ground of violation of principles of natural justice - When a specific provision is contemplated to deal with the violations of the principles of natural justice, question arises why a writ petition under Article 226 is to be entertained by the High Court - The aggrieved persons are attempting to thwart the provisions of law by approaching the High Court and with an idea to protract and prolong the issues - High Court cannot encourage such practices of prolonging the issue at the instance of the litigations - Once the remedy provided under the statute is efficacious and capable of dealing with various circumstances including the violation of principles of natural justice, then there is no ground for entertaining a writ petition under Article 226 of the Constitution of India - When the Customs Act contemplates that the violation of principles of natural justice can be dealt with by the Commissioner (Appeals), then the High Court need not entertain a writ petition against the Orders-in-Original passed by the competent authority and only after exhausting the statutory remedy, such writ petitions need to be entertained - Writ petition stands dismissed: High Court [para 10 to 12, 15]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-465-CESTAT-AHM

CCE & ST Vs Gujarat Ambuja Export Ltd

CX - The respondent, a 100% EOU is engaged in manufacture of De-Oiled cakes of soybean rapeseed and castor - They had also obtained necessary permission for availing the benefit of self-removal - In the course of manufacture of final product, raw grade oil is also obtained from solvent extraction process of edible oils seeds - They did not pay excise duty on DTA Clearances of such raw oil - SCNs were issued to the respondent proposing demand of excise duty on the raw grade oil under Serial No. 4 of Notification No. 23/2003-C.E. on the ground that the respondent have wrongly availed benefit of Serial No. 20 of Notification No. 23/2003-C.E. since raw oil cannot be considered as a mere waste even though it may be of no use to the Respondent but it is a main raw material used for manufacture of refined oil - Through remand order, Tribunal has given clear direction to the adjudicating Commissioner that he shall consider the clearance of raw oil as if cleared by DTA unit and examine whether any duty is liable to be paid - The Commissioner in de-novo adjudication order bound to decide the duty liability treating the clearance of oil by respondent as if cleared by the DTA unit - The Commissioner rightly, followed the Supreme Court judgment in respondent's own case under the same set of facts and law laid down by Supreme Court - Therefore, no infirmity found in the impugned order - By following the principles laid down by Supreme Court, it is held that the product vegetable raw oil cannot be treated as product of 100% EOU and the same is eligible to clear as if the same is product of DTA and consequently the duty applicable to the DTA unit shall apply to the clearance of raw oil - The vegetable oil falling under chapter 15.07 during the relevant period is chargeable to nil rate of duty in view of Notification No. 4/2005-C.E. (serial no. 1) predecessor Notification No. 6/2002-C.E. as amended by Notification No. 37/2003-C.E. - Accordingly, the clearance of Raw oil by respondent is not liable for any duty - No merit found in Revenue's appeal - Therefore, the impugned orders are upheld: CESTAT

- Appeals dismissed: AHMEDABAD CESTAT

2021-TIOL-464-CESTAT-MUM

Worbus Management Consultants Ltd Vs CCE & ST

ST - The appellant had not entered appearance before original authority on the plea that they intend to subject themselves before Settlement Commission - There is no evidence of such having occurred, and indeed, the filing of appeal before Tribunal is clear indication of incorrect averment having been made before original authority - In the grounds of appeal too, no concrete counters to the findings of original authority have been enumerated - The grounds of appeal are vague and insufficient to determine a finding on merit - The appellant has also foregone several opportunities to appear and to elaborate upon the grounds preferred in appeal - Therefore, no reason found to entertain the prayers and relief sought by appellant: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2021-TIOL-463-CESTAT-DEL

AM Products Vs CC & CGST

CX - The appellant is engaged in manufacture of Pan Masala - The refund claim in lieu of Rule 10 of Pan Masala Packing Machine Rules, 2016 on account of closure of Unit were filed in 2015 and 2016 for a total amount of Rs. 3,84,92,710/-, out of the said amount claim of Rs. 1,59,40,646/- was rejected by Original Authority, however, without interest - No doubt, post said decision there was another application seeking refund was filed on 16.11.2017 - The moot controversy to adjudicate is as to whether 16.11.2017 is the date or the respective dates of applications filed in 2015-16, as far as liability of Department to give interest is concerned - The bare perusal of Section 11BB of Central Excise Act, 1944 makes it clear that the period of 3 months has to reckon from the date of receipt of application to be submitted under Section 11B ibid - The explanation clarifies that even any subsequent order finally allows the refund has to be taken as the order under section 11B ibid itself, i.e., the order as has been passed pursuant to the first application of assessee vide which he claimed the refund for the first time - Issue is no more res-integra as has been held by High Court of Rajasthan in the case of J.K. Cement Works - Apparently, the order of Commissioner (Appeals) is much beyond the date of application of appellant as was filed under Section 11B ibid - Hence, it is mandatory for Department to sanction interest along with the sanctioned refund claim - The impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

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