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2021-TIOL-NEWS-191| August 13, 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 7838594749 or email us at helpdesk@tiol.in. |
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INCOME TAX |
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2021-TIOL-1322-ITAT-MUM
IDBI Bank Ltd Vs ACIT
Whether AO while giving effect to the proceedings of the CIT should not have travelled beyond the directions given by him - YES: ITAT
- Assessee's appeal allowed: MUMBAI ITAT
2021-TIOL-1321-ITAT-DEL
Indo States Exports Vs ACIT
On appeal, the Tribunal observes that the issues at hand are settled through a number of judgments in which it had been held that employee's contribution to EPF & ESI cannot be disallowed where payment is made before due date of filing Income Tax Return
- Assessee's appeal allowed: DELHI ITAT
2021-TIOL-1320-ITAT-PUNE
Krishnae Infrastructure Pvt Ltd Vs Pr.CIT
Whether it is trite law that when an assessee deposits the contribution to any Provident Fund or any other fund on or before due date for filing the return of income under the Income Tax Act, no disallowance can be made u/s 43B of the Act - YES: ITAT
- Assessee's appeal allowed: PUNE ITAT
2021-TIOL-1319-ITAT-PUNE
ACIT Vs Wockhardt Ltd
Whether having not drawn any adverse inference in original assessment, AO is debarred by first proviso to invoke section 147 on basis of same material which was fully & truly disclosed during original assessment - YES: ITAT
Whether when order u/s. 201(1)/(1A), forming bedrock of additions made in reassessment order, has itself been quashed, there remains no raison deter whatsoever to sustain additions on merits as well - YES: ITAT
- Revenue's appeal dismissed: PUNE ITAT
2021-TIOL-1318-ITAT-DEHRADUN
Express Drilling Systems LLC Vs DCIT
Whether assessee can plead that since percentage of expenditure compared to income is very low, therefore, there is no need of submission of any details - NO: ITAT
- Assessee's appeal partly allowed: DEHRADUN ITAT
2021-TIOL-1317-ITAT-AHM
DCIT Vs Sintex Industries Ltd
Whether Rule 8D is prospective in operation and cannot be applied to any assessment year prior to AY 2008-09 – YES: ITAT
- Revenue's appeals dismissed: AHMEDABAD ITAT
2021-TIOL-1316-ITAT-BANG
Indo Gold Mines Pvt Ltd Vs DCIT
Whether generation of revenue, as observed by the tax authorities, should not be the criteria for determining the date of setting up of business - YES: ITAT
- Matter remanded: BANGALORE ITAT
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MISC CASE |
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GST CASE |
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INDIRECT TAX |
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2021-TIOL-468-CESTAT-AHM
Tarang Constructions Vs CCE & ST
ST - The appellant have availed input services in nature of Works Contract Service from various sub-contractors on which the sub contractor have discharged Service Tax and the same was availed as Cenvat Credit by appellant - The said Cenvat Credit was utilized for discharging service tax liability by appellants during the period from 01/04/2015-29/02/2016 - The appellants filed refund applications - However, same was rejected by Deputy Commissioner - On appeal, Commissioner (Appeals) on facts agreed that the refund is payable, however, he rejected the refund claim on the ground that since the output services are exempted in terms of Rule 6, the appellant is not entitled for refund on Service Tax paid by utilizing Cenvat Credit on input services - The Tribunal in case of Shanti Construction Company has considered the identical issue and held that the appellant is entitled for refund as well as the interest paid on Service Tax payment - Following the said decision of Tribunal, appellant is held entitled for refund on merit of Service Tax and interest, if any, paid for the delayed payment of Service tax - The Commissioner (Appeals) has categorically held that refund is not hit by unjust enrichment.
As regard to appeal of Standard Buildcon, as per the contract clause with Military Engineering Services (MES) it is observed that MES has given the instruction to all their contractors to get the refund of Service Tax from Government itself after the introduction of section 102 of Finance Act, 1994 - At the time of entering into contract, there was no Service Tax applicable and thus, there is no question of inclusion of Service Tax in the schedule rate quoted by appellant - The appellant have submitted affidavit signed by partners stating that the liability of payment of Service Tax is borne by them and not by the Service recipient - The appellant has established that the incidence of Service Tax has not been passed on to any other person.
As regards to the case of Shyam Construction on the issue of unjust enrichment, in the tender for project the prices includes cost of material, labour, other incidental expenditures, taxes applicable at the time of entering into contract, the schedule of rate is quoted - Only on the basis that the agreement uses the terminology that price is inclusive of all taxes does not mean that the service recipient has paid applicable Service Tax - Appellant had submitted ledger account of Service Tax payable wherein the total amount of Service Tax payable in case of all the bills is stated on the credit side and the mode of its payment is stated on its debit side which includes Cenvat Credit taken and the challans amount - The corresponding entry of Service Tax to be receivable was stated in the account of 'Service Tax Receivable' - This fact established that the incidence of Service Tax for refund which is sought for has not been passed on to the service recipient - The refund has passed through the test of unjust enrichment - Appellant is entitled for refund of Service Tax along with interest: CESTAT
- Appeals allowed: AHMEDABAD CESTAT
2021-TIOL-467-CESTAT-AHM
Khushboo Beauty Care Vs CCE & ST
CX - The issue involved is, whether the appellant is entitled for Cenvat credit on the strength of Bill of Entry which was in the name of supplier of raw material whereas the goods were received by appellant as a job worker and used in the manufacture of goods on job work basis - There is no dispute about receipt, use of goods supplied by M/s Marico Limited under the cover of Bill of Entry along with declaration in favour of appellant - Even though the Bill of Entry is in the name of M/s Marico Limited but on the basis of declaration, it is established that the material has been supplied to appellant for job work, therefore, merely because Bill of Entry is bearing the name of M/s Marico Limited, Cenvat credit cannot be denied to the appellant - In view of the decision in case of Trichem Lab (Bombay) Pvt. Ltd. 2016-TIOL-1025-CESTAT-MUM, appellant is entitled for Cenvat credit on the strength of Bill of Entry even though the same is in the name of M/s Marico Limited but with a declaration in favour of the appellant: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2021-TIOL-466-CESTAT-MAD
Sri Reshika Enterprises Vs CC
Cus - Refund - The Adjudicating Authority has rejected the refund inter alia on the grounds that an offence had been committed and thereafter, the case was adjudicated in terms of proviso to Section 23(2) of Customs Act, 1962; that a fine and a penalty was imposed; that the out of charge order had already been issued by proper officer due to which the question of abandonment did not arise - The mode of payment being e-payment, appellant did not challenge and paid the fine and penalty without questioning the legality of same - This means that the offence, as alleged, had indeed been committed, which aspect is clearly hit by proviso to Section 23(2) ibid. which takes away the right of owner to relinquish his title to such goods - It is too late at this stage for appellant to raise an issue in so far as the levy of fine and penalty are concerned, since without questioning the same at the appropriate time before making the e-payment, the said plea cannot be urged for the first time now - Therefore, the contention of appellant that the collection of fine and penalty was without the authority of law cannot be gone into by this forum now: CESTAT
- Appeal dismissed: CHENNAI CESTAT
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