I-T - Assessment order passed by the NFAC merits being quashed where it is not preceded by issuance of SCN or draft assessment order to the assessee : HC

I-T - After 4 years from end of relevant AY, even if AO has tangible material to conclude income has escaped assessment, he cannot reopen assessment unless he discloses what is the material fact which was not truly and fully disclosed by assessee : HC

I-T - For purposes of sec. 36(1)(va), date of deposit of cheque in bank is relevant and not date of clearance of cheque: ITAT

I-T - Merely making a claim not sustainable in law by itself, where assessee's expenditure is disallowed by AO, does not amount to furnishing of inaccurate particulars of income : ITAT

I-T - Additions in respect of deemed rent from unsold flats, cannot be sustained where all conditions in exclusion clause of Sec 22 are satisfied: ITAT

I-T - In case of bogus purchases, additions can be framed only in respect of profit embedded therein, rather than the entire quantum of the purchases : ITAT

I-T - Once assessee has own funds more than investment, no disallowance under Rule 8D(2)(ii) can be made : ITAT

I-T - Addition u/s 68 cannot be made on conjectures, disregarding direct evidence placed on record :ITAT

I-T - When an order is set aside, then assessment framed pursuant to that order cannot survive on a standalone basis and is liable to be vacated : ITAT

I-T - Voluntary expenditure in nature of donations is liable to be disallowed unless business expediency is proved : ITAT

GST - Passing on of bogus ITC on strength of fake invoices - Making hefty unlawful and unimaginable financial gain and foiling the idea behind introduction of GST - Bail petition dismissed: HC

VAT - Rule pertaining to alternate remedies must be applied with utmost rigor, in respect of fiscal statutes : HC

2021-TIOL-1975-HC-AP-GST

ASR Hospitals India Pvt Ltd Vs State of Andhra Pradesh

GST - The petitioner had submitted its tender after complying with all required formalities - The 2nd respondent had pointed out certain deficiencies, one of which was the non-submission of GST registration certificate - The bid of petitioner have been rejected on same ground - The 2nd respondent cleared the technical bids of 3rd and 4th respondents - Petitioner has not been able to make out any case of discrimination or bias against Respondents - The only ground that could be raised by petitioner is that of an arbitrary action of 2nd Respondent, in rejecting the bid of Petitioner and allowing the Respondents to participate in financial bids - The first allegation of arbitrariness is disqualification of Petitioner - As per "Instructions to bidder", the bidders nned to submit copy of certificate of registration of GST, EPF, ESI with the appropriate authority valid as on the date of submission of tender documents - The defence of petitioner is that the Central Government had issued a notification exempting various services, including the primary activity of petitioner from payment of tax under the GST Act - It is clear that in such a situation, Petitioner would have to supply drugs and goods which are not exempt from levy of GST and petitioner would require to be registered, under the GST Act - In the absence of such a registration certificate, the action of 2nd Respondent in rejecting the technical bid of Petitioner cannot be termed to be arbitrary.

The second allegation of arbitrariness against 2nd respondent is refusal to reject the technical bid of 3rd Respondent - The contention of petitioner is that the 3rd respondent was one of the members of a consortium, which was participating in the tender and could not have submitted the bid as it was not the lead member in said consortium - Petitioner would seek to point out certain provisions where details of lead member are required and where the lead member has to give certain assurances - However, this requirement cannot be taken to mean that the bid document has to be filed only by the lead member - All such information and assurances can always be obtained by any other member and file before the tender authority - As such, it cannot be said that the 3rd respondent is disqualified on that count and the action of 2nd Respondent cannot be termed as arbitrary.

The third allegation of arbitrariness against 2nd Respondent is that they allowed the 4th Respondent to participate in financial bid even though they did not have the necessary experience to qualify in technical bid - The 4th respondent had submitted a certificate from NRI Academy of Sciences stating that NRI Academy of Sciences through the 4th respondent had provided such services to CHC Seethampeta in ITDA area of Seethampeta, A.P. and the certificate from the medical officer of area hospital Seethampeta that such services were being given at CHC Seethampeta in ITDA area of Seethampeta - This would show that the 4th respondent has been giving services for more than three years required under the said eligibility criteria - The contention of petitioner that the action of 2nd respondent in this regard is arbitrary must fail: HC

- Writ petition dismissed: ANDHRA PRADESH HIGH COURT

2021-TIOL-1974-HC-KOL-GST

International Value Retail Pvt Ltd Vs UoI

GST - The petitioner has challenged impugned SCN and subsequent final impugned adjudication order of rejection of application of petitioner for revocation of cancellation of its GST registration on the ground that the same is perverse and is in disregard to and non-consideration of relevant material documents/records in support of the case of petitioner, principal place of business of petitioner and which was carried out in the official registered premises in question and only due to extraordinary compelling circumstances of Covid-19 and in following the protocol and norms of Covid-19 temporarily petitioner was not carrying his business from the premises in question from officially registered premises and they were carrying business in question from home - Respondents are directed to consider afresh and dispose of petitioner's application for revocation of cancellation of its registration under GST Act in accordance with law within four weeks: HC

- Matter remanded: CALCUTTA HIGH COURT

2021-TIOL-1973-HC-ORISSA-GST

Smruti Ranjan Sahoo Vs State of Odisha

GST - Petitioner has filed an application u/s 439 of the CrPC for his release on bail -  Petitioner submits that the complaint contains the allegations that the Petitioner being the proprietor of M/s. S.R. Enterprises in collusion with others managed in showing the receipt of purchase invoices in the name of fake firms without physical receipt of goods and issuing sale invoices without onward physical movement of the goods and has wrongfully availed and passed on bogus Input Tax Credit (ITC) on the strength of those fake invoices in defrauding the State exchequer   - Petitioner  submits that he is in no way involved in the commission of offences as alleged and he has been arrested in the case on frivolous grounds without determining tax liability and by erroneous calculation of ITC allegedly so availed - Furthermore, Petitioner has remained in custody since 28.06.2021 and now his release on bail would cause no hindrance on the path of a free and fair investigation more particularly when complaint has already been filed in the court; that the authority having seized all the relevant documents, the question of tampering with the evidence and influencing the trial also does not arise; that further detention of the petitioner in custody would serve no useful purpose and as such is not warranted.

Held:  It is stated that the Petitioner as the proprietor of M/s. S.R. Enterprises has availed bogus ITC worth of Rs.9.35 crores without physical receipt of goods on the strength of fake invoices obtained in the name of fake and non-existent firms and passed on bogus ITC worth Rs.9.65 cores without the supply of goods in the reality and those are in favour of recipient firms inside and outside the State of Odisha - In this way, it is said that the Petitioner was going on defrauding the State exchequer which so far stands at Rs.19.04 crores (both passing and availment of ITC) -  Petitioner is said to have been involved in the above specific economic offences of quite significant magnitude which are considered to be grave - Such dubious roles alleged to have been played by the Petitioner stand in the direction of making hefty unlawful and unimaginable financial gain - Such tendency foils the whole idea behind the introduction of the new Tax Regime so as to achieve the objective of speeding up the run of the Nation to stand at the forefront having a key position in the economic map of the globe - Bench is not inclined to accept the present move for grant of bail to the Petitioner - Petition dismissed: High Court [para 5, 6]

- Petition dismissed: ORISSA HIGH COURT

2021-TIOL-1970-HC-MAD-VAT

SGS Marketings Vs Assistant Commissioner (CT)

Whether the rule pertaining to alternate remedies must be applied with utmost rigor, in respect of fiscal statutes - YES: HC

Whether the High Court is required to intervene where the issues at hand can be raised before appellate authorities & where such case does not involve any exceptional circumstances warranting writ court's intervention - NO: HC

- Assessee's writ petitions dismissed: MADRAS HIGH COURT

2021-TIOL-638-CESTAT-DEL

Delhi International Airports Pvt Ltd Vs CC

Cus - The appellant was appointed Custodian of imported goods - They entered into concessional agreement with M/s. CELEBI Delhi Cargo Terminal Management India Pvt. Ltd. to upgrade, modernize, finance, operate, maintain and manage the existing cargo terminal at Delhi Air port - Permission for outsourcing the functions required to be carried out by M/s. DIAL to M/s. CELEBI was granted in terms of Regulation 6(2) of Handling of Cargo in Customs Areas Regulations, 2009 - The consignment as was imported from Hong Kong got removed from Customs Area without filing of Bill of Entry - M/s. CELEBI is directly responsible for lapse amounting to improper handling of cargo in Customs area - Whether or not M/s. DIAL can simultaneously be held liable for violating relevant provisions need to be looked into - Apparently and admittedly it is M/s. DIAL who has furnished the custodian bond under section 45 of Customs Act, 1962 for Rs. 4,00/- crore for Import Cargo with bank guarantee of Rs.40 crore - Technically speaking irrespective of concessional agreement, said fact is sufficient to hold that Custodian as is approved under Section 45 till date is M/s. DIAL - It has rightly been held that M/s. CELEBI was never intended to be a Custodian and M/s. DIAL cannot absolve them from the responsibilities and obligations casted upon them in the manner prescribed as per section 145 of Customs Act, 1962 and those as are mentioned in HCCR, 2009 - M/s. DIAL after taking notice of the impugned incidence of removal of package without filing of Bill of Entry have taken measures to avoid any such incidence in future - All the conditions which are required to be complied with under Rule 5 of HCCR, 2009, are admitted to have been complied with by M/s. DIAL post the impugned incidence - No infirmity nor any illegality found when Adjudicating Authority below have held violations of provisions of Section 141 of Customs Act on account of said admission - Further, Rule 6(2) of HCCR restricts such contracting or outsourcing of Cargo handling functions - Even if the permission for outsourcing was given to M/s. DIAL vide the letter of Commissioner of Customs (IMG), the said permission was agreed to be coterminus with custodianship of M/s. DIAL and was held subject to fulfilment of provisions of Customs Act, 1962 and the Rules and Regulations made thereunder - Admittedly the custodian bond was still of M/s. DIAL - M/s. CELEBI never substituted the same - The provisions of Customs Act and that of HCCR do not absolve the custodian of responsibilities as mentioned in these Regulations to be observed by Custodians itself, that Tribunal do not find any infirmity with the order under challenge where simultaneously penalty has been imposed upon M/s. DIAL as well - The order is accordingly upheld: CESTAT

- Appeal dismissed: DELHI CESTAT

2021-TIOL-637-CESTAT-MUM

Cross Tab Marketing Services Pvt Ltd Vs CCGST

ST - The appellant is engaged in export of service and was availing benefit of CENVAT credit of duty and service tax paid on various input services - Appellants preferred a refund claim seeking the refund of accumulated credit in terms of provisions of Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-C.E. (N.T.), for the quarter July-September, 2012 - Same was partially allowed - The amended rule 5, does not require establishment of any nexus between input services and exported services - The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during period under consideration, of Net CENVAT credit taken during that period - Undisputedly, in the refund proceedings under Rule 5 as amended any such attempt whereby credit availed during the period under consideration is sought to be denied or varied, is not permissible - If the quantum of Cenvat Credit is sought to be varied, by holding that certain services do not qualify as input services then the same could have been done by invoking the provisions of Rule 14 of CCR, 2004 - The Commissioner (A)/ Adjudicating Authority has misdirected himself by undertaking such exercise while adjudging the refund claim filed in terms of Rule 5 - Impugned order is modified to the extent, i.e., that entire credit as claimed by Appellant for determining the refund amount is held admissible if not held admissible in proper proceedings initiated under Rule 14 of CCR, 2004 - The appeal filed is thus allowed subject to verification of subject documents by adjudicating authority, for which the matter is remanded to original authority - Original Authority is also directed to dispose of these refund claims in the remand proceeding within three months of receipt of this order, after affording hearing to appellant: CESTAT

- Matter remanded: MUMBAI CESTAT

2021-TIOL-636-CESTAT-AHM

Alcon Bioscinces Pvt Ltd Vs CCE & ST

CX - Assessee is in appeal against impugned order of Commissioner (Appeals) by which their appeal was rejected - The appeal was rejected by Commissioner (Appeals) filed against letter dated 21.06.2012 - Firstly, against this letter dated 21.06.2012 appeal lies before this Tribunal as the decision was taken by Commissioner and the same was communicated by Additional commissioner - As regard the merit, the Commissioner was absolutely wrong while rejecting the application of appellant on the ground that the SCN has been issued as per clause 73 of Finance Act, 2010 - It is independent matter to Rule 6 to be settled even if either the SCN was issued or any order was passed or any appeal is pending before any forum therefore, only because the SCN was issued, commissioner should not have rejected the application of appellant - As regard another ground of rejection is that the appellant has not submitted proper CA certificate, the same could have been advised to appellant for submitting the correct CA Certificate - Matter remanded to the concerned commissioner to re-decide the application dated 31.08.2010 filed by appellant, irrespective the issuance of SCN - The appellant may be given opportunity to submit the proper CA Certificate, if required: CESTAT

- Matter remanded: AHMEDABAD CESTAT