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I-T - When audited financials of assessee company have been accepted by AO, mechanical application of Rule 8D to reject suo motu disallowance u/s 14A by assessee is not sustainable: ITAT

I-T - Depreciation has to be allowed on the w.d.v. of block of Machinery at gross value without reducing waiver of loan therefrom : ITAT

I-T- Mere absence of supporting documentation cannot be a reason to make addition u/s 69A especially where assessee has explained and duly disclosed source of deposits in bank account : ITAT

ST - Exhibition of cinematographic films under revenue sharing arrangement - SCN demanded duty under operational & administrative assistance whereas O-i-O travelled beyond scope of SCN by confirming demand under infrastructure support services - Duty demand quashed: CESTAT

GST - As the applicant is making an exempt supply [pure service - Sr.3, 12/2017-CTR] to Howrah Municipal Corporation, the provisions of s.51 and, for that matter, the TDS Notifications do not apply: AAR

GST - Invoices issued by Maharashtra Office - Importer need not take separate registration in importing States as they would be selling the goods before clearing same for home consumption from port of import: AAR

CX - In absence of any evidence which shows that the goods were delivered to appellant and his categorical denial of receipt of goods, the penalty under Rule 26 (1) cannot be imposed .: CESTAT

2021-TIOL-2138-HC-MAD-GST

Manisha Arunraj Vs CCT (GST)

GST - The writ petition was filed assailing impugned order which is a sequel to a surprise inspection and the impugned order has been made on the basis that taxable person has committed the offence of issuing invoice without supply of goods in violation of TN-GST, C-GST Acts and rules thereunder - Penalty has also been levied inter alia under Section 122(1)(ii) of TN-GST and C-GST Acts - The petitioner claimed that this has been their consistent case that someone has misused their Aadhar and PAN cards and got fake registration saying business has been carried on in the name and style of MMM Enterprises - Owing to the nature of stand taken by petitioner and owing to this Court noticing that a criminal complaint has been lodged by petitioner and investigation is under-way, it would only be appropriate to set aside the impugned order without expressing any view or opinion on the merits of matter, leaving it open to respondents to proceed afresh either against petitioner or any other entity or person depending on outcome of investigation that is under-way qua alleged misuse of writ petitioner's Aadhar and PAN cards to obtain a fake registration - Impugned orders are set aside solely on the ground that alleged misuse of petitioner's Aadhar and PAN Cards and obtaining of fraudulent registration is under investigation - No opinion or view on the merits of the matter has been expressed in this order and rights of Revenue are preserved to proceed against the petitioner or any other person or entity being natural person or juristic entity, subject to progress in investigation - The outcome of investigation or updation shall be given by petitioner to respondent within three months.

Held - The subject orders are set aside solely on the ground that alleged misuse of the petitioner's Aadhar and PAN card & obtaining of fraudulent registration is under investigation - No opinion expressed on merits - Rights of the Revenue are preserved to proceed against the writ petitioner or any other person or entity being natural person or juristic entity, subject to progress in the investigation i.e., subject to further facts unfurling in the investigation: HC

- Writ petition disposed of: MADRAS HIGH COURT

2021-TIOL-249-AAR-GST

Vinayak Singh

GST - Applicant is engaged in providing conservancy/solid waste management services as well as garbage collection and dumping services to the Conservancy Department of the Howrah Municipal Corporation (HMC) -  It is submitted by the applicant that the HMC is deducting TDS in terms of Notification No. 50/2018-Central Tax while paying consideration for the above supply - The applicant seeks advance ruling on whether the above supply is exempted in terms of Sl No. 3 or 3A of Notification No. 12/2017-CTR (corresponding West Bengal State Notification) and if so, whether the notifications regarding TDS are applicable in his case - Applicant, in support of his argument, has placed reliance on an advance ruling pronounce by the WBAAR in the matter of M/s Maruti Enterprise  2019-TIOL-157-AAR-GST . 

Held: On going through the said advance ruling, Authority finds that fact of the instant case and the questions raised thereon for advance ruling are identical with the case on which the applicant has relied upon - In the instant case, the work order issued to the applicant describes the nature of the work as lifting and removing of daily garbage etc. accumulated from the vats, dumping yards, containers and other places on the roads, lanes and bye-lanes of HMC area - Further, from the copies of invoices and 'Payment Ledger', it is found that the applicant has received payment against 'removing of garbage, road bumps, drain slits, rubbish by dumper with labour, fuel & pay loader' - The term 'pure services' has not been defined under the Act - However, a bare reading of the description of services as specified in entry serial number 3 of the Exemption Notification denotes that supply of services which does not involve any supply of goods can be regarded as pure services - It appears that in the instant case, the supplies do not involve any supply of goods - The applicant receives consideration only in respect of the quantity of the garbage lifted and removed and, therefore, it may be inferred that the applicant's supply to HMC, which is a local authority as defined under section 2(69) of the GST Act, is a pure service - It transpires from a reading of article 243W of the Constitution along with twelfth schedule  that the functions entrusted to a municipality as listed in the Twelfth Schedule include the functions like sanitation conservancy and solid waste management - Authority is, therefore, of the view that the applicant's services to HMC is exempt under entry serial number 3 of the Exemption Notification - Further, Section 51(1) of the GST Act provides that the Government may mandate inter alia a local authority to deduct TDS while making payment to a supplier of taxable goods or services or both - As the applicant is making an exempt supply to the HMC, the provisions of section 51 and, for that matter, the TDS Notifications do not apply to his supply - Held, therefore, that the applicant's supply to the Howrah Municipal Corporation for lifting and removing of daily garbage etc. accumulated from the vats, dumping yards, containers and other places on the roads, lanes and bye-lanes of HMC area is exempt from payment of tax vide entry serial number 3 of the Notification No. 12/2017 - CTR (corresponding West Bengal State Notification No. 1136 - FT dated 28/06/2017), as amended from time to time - As the applicant is making an exempt supply, the provisions of section 51 in respect of tax deduction at source do not apply: AAR

- Application disposed of: AAR

2021-TIOL-248-AAR-GST

Kamdhenu Agrochem Industries LLP

GST -   Applicant seeks to know whether they are required to obtain registration in importing States other than Maharashtra, if goods are imported, sold and delivered directly from CFS (Container Freight Station) / DPD (Direct Port Delivery) which is under the Customs Boundaries to customers from those States?

Held: Since the applicant will be selling the goods before clearing the same for home consumption from the port of import, the 'place of supply' shall be the place from where the applicant makes a taxable supply of goods which, in this case will be the Maharashtra Office - Hence, the applicant can supply the goods on the basis of invoices issued by the Maharashtra Office and, therefore, they need not take separate registration in importing States other than Maharashtra - Insofar as the question as  to whether the Applicant is required to obtain registration in State where the applicant is proposing to open a warehouse for sale of imported goods from such warehouse, Authority is of the view that no ruling can be given as the question is beyond the jurisdiction of the Maharashtra Advance Ruling Authority: AAR 

- Application disposed of: AAR

2021-TIOL-703-CESTAT-HYD

Inox Leisure Ltd Vs CST

ST - The assessee is engaged in the business of exhibiting cinematographic films across India in theatres owned by the appellant or taken on rent - The assessee claims that it acquires the rights/license to exhibit the films at the designated theatres from various film distributors by entering into separate license agreements for each film - The consideration towards such license is paid by the appellant as per the agreed percentage of box office collection and such percentage varies from distributor to distributor, movie to movie and week to week, after the release date - For the relevant period, the Department issued two SCNs, raising two separate demands for service tax duty, along with interest and penalty - On adjudication, the demands were confirmed on grounds that the assessee was providing services to distributors/producers in the nature of infrastructure support services falling within the definition of taxable service category of BSS defined u/s 65(104c) of the Finance Act 1994 & that in view of the Circular dated 13.12.2011, revenue sharing arrangement would be liable to service tax.

Held - The order has confirmed the demand on the basis that the appellant provided 'infrastructure support services' to the assessee - However, the SCN alleged that the assessee was providing 'operational and administrative assistance' with supplier - The Commissioner could not have gone beyond the scope of the show cause notice to confirm the demand - This apart, in view of the decision of the Supreme Court in Faqir Chand Gulati and the decision of the Tribunal in Mormugao Port Trust , no service tax can be levied on the assessee under BSS - Hence the duty demand raised is not sustainable: CESTAT

- Assessee's appeals allowed: HYDERABAD CESTAT

2021-TIOL-699-CESTAT-AHM

Bhavin Shah Vs CCE & ST

CX - The penalty against the appellant was imposed under Rule 26 (1) of CER, 2002 on the ground that they had purchased the goods which was removed clandestinely by M/s. Elegant Casting Pvt. Ltd. - From the entire investigation though some document was found from supplier M/s. Elegant Casting Pvt. Ltd. wherein the name of appellants partnership firm Shanti Casting is appearing but on recording the statement of appellant, he clearly denied the dealing of goods - He has been asking for production of document to support the allegation of department but though the department has produced document record from M/s. Elegant Casting Pvt. Ltd but the same was not accepted by him - No corroborated evidence was found from appellant or from his partnership firm to establish that even though the goods were clandestinely removed by M/s. Elegant Casting Pvt. Ltd which was received by the present appellant - In absence of any evidence which shows that the goods were delivered to appellant and his categorical denial of receipt of goods, the penalty under Rule 26 (1) cannot be imposed - The appellant was not liable for penalty under Rule 26 (1) - Accordingly the impugned order to the extent it imposes the penalty on appellant is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-698-CESTAT-BANG

P Mahadeva Vs CCT

ST - Appellant had undertaken the activity of trenching and laying of cables under/alongside roads for their customers viz., BSNL and TATA Teleservices - During the course of investigation, appellant deposited an amount towards service tax - Thereafter, they came to know that the Government of India has issued Circular 123/5/2010-TRU clarifying that the activity of trenching and laying cables alongside road is not a taxable activity and cannot be levied to service tax under erection, commissioning and installation service - Accordingly, appellant filed a refund claim - There is no dispute regarding the taxability of impugned activity - Even before the issuance of said Circular by Board, the Tribunal in the case of Indian Hume Pipe Company Limited 2008-TIOL-1665-CESTAT-MAD has held that the impugned activity is not taxable under category of "Erection, Commissioning and Installation Service" - As far as limitation is concerned, the High Court has already held that refund claim was not barred by limitation - Now coming to the issue of unjust enrichment, appellant has placed on record the letters issued by both the service recipient i.e., BSNL and TATA Teleservices which makes it abundantly clear that no service tax has been charged and collected in respect of work orders during the relevant period - Further, on perusal of work orders issued by BSNL for the relevant period, it clearly suggests that no service tax was neither charged nor collected by appellant - The impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT