I-T - State Legislature has lost its legislative competence to enact laws to impose tax on sales of ENA, upon enactment of 101st Constitution Amendment: HC

I-T - After consideration of material on record, when AO has conclusively taken one view, assessment cannot be re-opened based on same material to take another view : HC

I-T - For purposes of reopening assessment, assessee's duty does not extend beyond disclosing fully and truly all primary relevant facts : HC

I-T- Revenue does not have power to re-open case of assessee on same material, when original assessment u/s 143(3) is made on same set of documents : ITAT

I-T - When every detail is filed before AO and CIT (A), disallowance of property tax and interest expenses u/s 24 by AO and upheld by CIT (A) is not correct : ITAT

I-T - For purposes of sec. 28(iv), amount received on account of share capital ought not to be treated as business income : ITAT

I-T - No order can be passed u/s 263 against a non-existing entity: ITAT

GST - Without consideration of petitioner's claim to ownership over goods in question, respondent has concluded that detained goods are not traceable to any bonafide owner - Order set aside: HC

ST - SVLDRS - Contention that unless and until appeal is numbered by Registry, only then can it be considered to be 'pending' before CESTAT is not a criteria laid down in s.124/125 of FA, 2019: HC

GST - COVID-19 - Cancellation of registration - Tax Consultant is no more in the land of living - Returns filed with late fee should have been accepted; registration restored: HC

SVLDRS - While interpreting a beneficent provision, its aim and object cannot be ignored - It is completely illogical to reject an application without following principles of natural justice: HC

GST - Managerial and leadership services provided by Registered/Corporate Office to its Group Companies is to be considered as 'supply of service'; liable to tax: AAR

Cus - Additional Director General, DRI is not a proper Officer to issue SCN under Section 28 (4) read with Section 2 (34) of Customs Act, 1962.: CESTAT

Cus - Since the proceedings have taken place without supplying relied upon documents to appellant, the principles of natural justice have not been followed: CESTAT

2021-TIOL-2026-HC-ALL-GST

SK Steels Vs State of UP

GST -  Petitioner challenges the order passed u/s 129(3) of the Act, 2017 - Petitioner submits that they had purchased the goods from a dealer M/s N K Traders, Bihar and while the goods were being transported to the petitioner, the goods were intercepted by the authorities; that SCN was issued on 17.08.2021 - Petitioner further submits that they have deposited Rs.1,37,232/- on 23.08.2021 being the amount equivalent to the tax payable on the goods detained and the penalty - It is, therefore, the case of the petitioner that  respondent no. 2 has grossly erred in not taking cognisance of the claim made by the petitioner and in reaching a conclusion that the detained goods were not traceable to any bona-fide owner - Inasmuch as the demand made u/s 129(1)(b) is wholly illegal.

Held: It does appear that the impugned order dated 24.08.2021 had been passed without consideration of the petitioner's claim to ownership over the goods in question - In such circumstances, the order dated 24.08.2021 cannot stand, as the same appears to have been passed ex-parte against the petitioner without consideration of his claim - The order dated 24.08.2021 is hereby set aside - The writ petition is allowed - Matter is remitted to the respondent no. 2 to pass a fresh order - Petitioner to appear for hearing on 13.10.2021 and the authority should pass order within one week: High Court

- Petition allowed: ALLAHABAD HIGH COURT

2021-TIOL-2024-HC-PATNA-GST

Brajesh Enterprises Vs State of Bihar

GST - To the show cause notice dated 16th July 2019, the petitioner responded vide reply dated 25th July 2019 - By order dated 30 July 2019, Jt. Commissioner of State Taxes, Munger has canceled the petitioner's registration under the provisions of s.29 of the Act, 2017 - It is mentioned in the order that no reply to the SCN was submitted and none appeared on the day fixed for hearing - It is also mentioned that the petitioner is required to pay the amount of zero rupees on or before 09 August 2021 - Petitioner challenges this order.

Held: A uthority ought to have at least referred to the contents of the show cause and the response thereto, which was not done - Not only the order is non-speaking, but cryptic in nature and the reason of cancellation not decipherable therefrom - Principles of natural justice stand violated and the order needs to be quashed as it entails penal and pecuniary consequences - Since the year 2017, petitioner has been regularly filing its return and depositing all dues through the petitioner's Tax Consultant who was professionally engaged to undertake such task - Information of the returns for certain period not being uploaded surfaced in the year 2019 and the cause was totally beyond the petitioner's reach - Perhaps, the Tax Consultant is no more in the land of living - Nonetheless, under further advice, petitioner filed the returns along with the late fee/fine for the entire period preceding July, 2019 - Such returns were filed between 3rd December, 2020 and 5th July, 2021 and the tax liability was also discharged - In the peculiar facts and circumstances, and with the onset of COVID-19, the authority ought to have condoned the delay which unfortunately was not done, despite the petitioner having made a fervent request for condonation of delay in accepting the return, preventing cancellation of registration - Impugned order is quashed with the petitioner's registration restored with a further direction to respondent to finalise the petitioner's assessment in accordance with law - It is reiterated that the delay in filing the returns shall remain closed and not raised again - Writ petition is allowed: High Court 

- Petition allowed: PATNA HIGH COURT

2021-TIOL-234-AAR-GST

BG Shirke Construction Technology Pvt Ltd

GST -  The site offices are independent offices separately registered under the GST Laws - Similarly, the group companies are also separately registered under the GST Laws and since both the site offices as well as the group companies cannot be treated as employees, the applicant cannot get the benefit of Entry No. 1 to Schedule III - Supply of services by the applicant will be covered under Entry No. 2 to Schedule I and is, therefore, taxable under GST Laws - Held that  Managerial and leadership services provided by the Registered/Corporate Office to its Group Companies is to be considered as "supply of service", in terms of Section 7 of CGST Act, 2017 - Consequently, the lump sum amount charged by the Registered/Corporate Office on its Group Companies would be liable to GST under Section 8 of CGST Act, 2017: AAR

GST - Since Managerial and leadership services provided by the Registered/Corporate Office to its Group Companies is to be considered as "supply of service", the Applicant can continue to charge certain lump sum amount, as has been done in the past, in terms of second Proviso to Rule 28 of CGST Rules, 2017 , as most of the recipients of such services are eligible for full credit, barring one or two related persons, who would comply with the provisions of Section 17 of CGST Act, 2017, at their respective ends: AAR

- Application disposed of: AAR  

2021-TIOL-2025-HC-MAD-ST

R Shanmugam Pillai And Sons Vs Designated Committee

ST - SVLDRS, 2019 - Petitioner seeks quashing of SVLDRS-3 issued by the respondent determining an amount of Rs.13,24,448/- as payable under “Arrears” category - Petitioner submits that appeal admittedly had been filed prior to the cut-off date i.e., 30.06.2019 before the CESTAT, Chennai and the appeal had not been heard finally and, therefore, they are eligible to claim maximum benefit under the category of "under litigations" of the scheme - inasmuch as the tax amount payable by the petitioner was declared by them as Rs.7,32,236/-, however, the respondent held as above, therefore, the present petition.

Held : In the case in hand, admittedly, the petitioner filed an appeal on 20.06.2019 i.e., 10 days prior to the cut-off date before the CESTAT, therefore, on 30.06.2019, in the eye of law, there has been a litigation by way of appeal which has been filed and pending before the appellate forum - Whether the appeal filed on 20.06.2019 would be subsequently numbered or not (as argued by the counsel for Revenue) is not the criteria, as the same has not been mentioned either under Section 124 or 125 - Moreover, when there is a specific exclusion provided under Section 125, all other categories are eligible to seek such declaration in view of the language used in Section 125(1) i.e., "all persons shall be eligible to make a declaration under this scheme except the following, namely;" - Section 125 shall not be read in isolation and it should be read with Section 124, which makes it clear that, the relief available to a declarant under the scheme shall be calculated, where, the tax dues are relatable to a show cause notice or one or more appeals arising out of such notice which is pending as on 30.06.2019 - This language used in Section 124(1)(a) makes it abundantly clear that, the pendency of the appeal is enough for making a person eligible to claim the benefit under the scheme - Said declaration categorising the petitioner under "arrears category" is not in consonance with Section 124 or 125 - It is further to be noted that during the pendency of the writ petition, pursuant to the orders passed by this Court, it is claimed by the petitioner that the said amount of Rs.7,32,236/- as determined by the respondent, in entirety since has been paid, no further amount needs to be paid - Writ petition stands disposed of: High Court [para 10, 11, 12]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-2023-HC-MP-ST

Balaji Services Vs UoI

ST - SVLDRS, 2019 - Petitioners have assailed the communication of respondents rejecting the application filed under the scheme - Petitioners averred that while filling the SVLDRS-1, application, they committed a mistake to mention under heading Return period; that the said mistake occurred because the online system was not accepting so many entries; that the petitioners declared their service tax liability of Rs.17,28,119/- in ST-3 returns but did not pay the same, hence the said amount falls under the ambit of "arrears" and thus they were eligible to file the declaration and get the relief of 60% of the said amount; that they were shocked and surprised  to receive a message from their bank that their bank account has been frozen by the respondent - Petitioner further contends that technical glitch or online defects in the new system cannot be permitted to defeat the purpose for which the scheme was brought into force; that the respondents had rejected the application without following the principles of natural justice and with utter disregard to s.126 of the Finance Act, 2019.

Held: The 'Scheme' is a beneficent one and aim and object of the 'Scheme' is to unload the baggage of pending litigation relating to service tax and excise duty - While interpreting a beneficent provision, its aim and object cannot be ignored - In Thought Blurb - 2020-TIOL-1813-HC-MUM-ST , it was held that it will be completely illogical and contrary to the object of the 'Scheme' to reject an application on the ground of ineligibility without giving an opportunity to the declarant to explain as to why his declaration should not be accepted and why relief is not due to him - Bench is in respectful agreement with the view taken by the Bombay High Court and deems it proper to follow the same course - Petitioners cannot be left remediless - Moreover, if a mistake has taken place during lockdown period, the hyper technical approach should not be adopted - Respondents were not justified in rejecting the petitioners' application without giving them an opportunity - Impugned orders are set aside - Petitioners may file online / offline fresh applications before the respondents - In turn, the respondents shall consider them as valid applications and take a decision on it expeditiously - Writ petitions are allowed to the above extent: High Court [para 20, 21, 23, 24, 25]

- Petitions allowed: MADHYA PRADESH HIGH COURT

2021-TIOL-652-CESTAT-CHD

Modern Insecticides Ltd Vs CC

Cus - The appellant submits that the SCN has been issued by Additional Director General (DRI), who is not a proper Officer to issue SCN under Section 28 (4) read with Section 2 (34) of Customs Act, 1962 - The said issue has been dealt by Apex Court in case of Canon India P. Ltd. 2021-TIOL-123-SC-CUS-LB - Although Review Petition filed by Revenue has been pending before the Apex Court in said case but thereafter in the case of M/s. Agarwal Metals & Alloys 2021-TIOL-233-SC-CUS-LB again the Apex Court has follow up the decision of Canon India Pvt. Ltd. and hold that the Additional Director General, DRI is not a proper Officer within the meaning of Section 28 (4) read with Section 2 (34) of Customs Act, 1962 - Following the said decisions, it is held that Additional Director General, DRI, Ludhiana is not a proper Officer to issue SCN under Section 28 (4) read with Section 2 (34) of Customs Act, 1962 - Therefore, the impugned proceedings are set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2021-TIOL-651-CESTAT-DEL

CST Vs Jaiprakash Associates Ltd

ST - The Department has filed this appeal to assail that part of order dated 30.03.2015/10.04.2015 by which the demand raised on account of short-payment of service tax on the amount received towards construction of Educational Institutions for the period from 01.04.2012 to 30.06.2012 has been dropped - The assessee undertook various construction projects, including that relating to construction activities for Educational Institutions - Service tax was not paid by them as it felt that such activity would not fall under definition of 'commercial or industrial construction service (CICS)' defined under section 65(25b) of Finance Act, 1994 - For the period prior to April 2012, SCNs were issued to assessee on the same ground namely that construction for Educational Institutions would be taxable under CICS but the demand raised in SCNs were dropped - The Department filed appeals before Tribunal which were dismissed by the order dated 12.09.2018 - The aforesaid order of Tribunal has attained finality - Such being the position, when the contention advanced by Department in aforesaid appeal decided on 12.09.2018 has not been accepted and that order has attained finality, the present appeal filed by Department deserves to be dismissed: CESTAT

- Appeal dismissed: DELHI CESTAT

2021-TIOL-650-CESTAT-KOL

Shyam Steel Industries Ltd Vs CCGST & Excise

CX - The assessee is engaged in manufacture and sale of TMT Bar, inter alia through dealers - They had processed the discounts (turn-over discount/cash discount) in favour of its dealers through Credit Notes - Only issue that arise for consideration is whether the grant of refund of excess excise duty paid on transaction value without seeking an adjustment for discounts to the appellant shall be hit by principle of unjust enrichment - The law in this regard is well settled by Supreme Court in case of Addison case 2016-TIOL-146-SC-CX-LB that the onus is upon the person claiming refund of excise duty on post clearance discount to establish that the incidence of duty on such discount has not been passed on to any other person - The Supreme Court has held in unequivocal terms that Credit Notes are valid instrument for the purposes of passing post-clearance discounts and that an assessee is entitled for filing the claim for refund on the basis of Credit Notes raised by him towards discount - The CA certificate goes to show that the assessee has not passed on the incidence of duty on discount to its dealers - It is also found from the sample certificates issued by dealers that such dealers were not registered under Central Excise Law for the purposes of availing or passing of Cenvat credit - Therefore, the question of any double benefit in the form of refund of excise duty on component of discount as well as Cenvat credit on said component does not arise - These evidences establish that the duty element on the discount component was borne by assessee himself - The impugned order is therefore, set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2021-TIOL-649-CESTAT-BANG

Bhuvaneswari Lines And Logistics Pvt Ltd Vs CC