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I-T - AO cannot impose penalty for one AY & drop penalty for the subsequent AY, based on the same set of facts, without assigning proper reasons : ITAT

I-T - Penalty notice issued u/s 271(1)(c) cannot be sustained where appropriate charges between concealment of income & furnishing inaccurate particulars thereof, have not been specified : ITAT

I-T - Penalty imposed for failure to report financial transaction sustained in part, where assessee wilfully omits to file statement, but also does not receive SCNs mentioned in penalty order: ITAT

I-T - Assessee is eligible to interest on refund of self-assessment tax for period beginning from date of payment of tax or filing of return, whichever is later, to date on which refund is granted : ITAT

I-T - AO cannot make addition u/s 68 on account of unexplained credit without issuing summons to lenders u/s 131 and conducting inquiries : ITAT

I-T - Interest charged for delayed payment of TDS amount to government account would not assume character of business expenditure thus, deduction u/s 37(1) in respect of interest charged is not allowable : ITAT

I-T- Since AO fails to strike off irrelevant default in body of show cause notice, therefore, penalty imposed by him u/s 271(1)(c) cannot be sustained and is liable to be struck down : ITAT

I-T - Prior to amendment brought by Finance Act 2002 w.e.f. 1.4.2003 in section 28(va), compensation received by assessee under non compete agreement being capital receipt is not taxable: ITAT

GST - S.29 - Cancellation of registration - Where the statute provides for a procedure, then the procedure is to be followed in the letter and spirit of the statute or not at all: HC

GST - Answering the question as to whether GST registration should be surrendered is not within the domain of s.97(2) of the Act - Authority does not have jurisdiction to pass any ruling on such matter: AAR

GST - Supply made by applicant against purchase order of Integrated Coach Factory, Chennai is a mixed supply: AAR

2021-TIOL-2147-HC-ALL-GST

SS Traders Vs State of UP

GST -  Registration of the petitioner was cancelled on the alleged ground that no one was found at the place of the business and neither any business activity nor any bill book were found at the time of survey and the landlord of the premises had informed the survey team that no one came there to start a business and no business activity takes place there; that after scrutinising the return, it was found that the petitioner had purchased goods worth Rs.29,50,000/- from non-existing dealers and availed bogus input tax credit with malafide intention - Petitioner challenges the cancellation of his registration -  It is contended that the order impugned cancelling registration of the petitioner having been passed without affording an opportunity of hearing to the petitioner in violation of first proviso to sub-section (2) of Section 29 of the Act of 2017 is a nullity in the eyes of law and deserves to be set aside - It is further contended that the order passed in appeal having failed to notice the averments made on behalf of the petitioner, is also liable to be set aside.  

Held: Appellate order only refers to the grounds raised in the appeal, but it does not address the same and merely reiterates the findings of the order of the respondent no.4 cancelling the registration -  A bare perusal of the show cause notice format prescribed under Rule 22(1) shows that there is a difference in the show cause notice dated 12.5.2021 issued to the petitioner and in the form of the show cause notice quoted aforesaid - The specific date and time is necessarily required to be mentioned in the notice for showing cause which is conspicuous by its absence in the notice to the petitioner - Moreover, the proviso to sub-section (2) of Section 29 mandates opportunity of hearing being provided to the person whose registration is proposed to be cancelled before cancelling the registration - Where the statute provides for a procedure, then the procedure is to be followed in the letter and spirit of the statute or not at all - Denial of opportunity of hearing to the petitioner as is mandated in the first proviso to sub-section (2) of Section 29 of the Act of 2017 vitiates the proceedings as well as the orders cancelling the registration of the petitioner - Reference made to s.29(1) by the Counsel for Revenue is not correct - Sub-Section (1) of Section 29 would come into play only in the given set of circumstances that are mentioned in sub- section (1) and for no other reasons - Provisions of sub-section (1) of Section 29 do not come into play in the facts of the present case - Held, therefore, that order of cancellation of registration dated 28.5.2021 as well as order passed in the appeal dated 17.7.2021 are quashed: High Court

- Petition allowed: ALLAHABAD HIGH COURT

2021-TIOL-253-AAR-GST

Medha Servo Drives Pvt Ltd

GST - Applicants are manufacturers of electronics equipments for locomotives and coaches for Indian Railways and Metro Railways - They have submitted that they were issued purchase order by Integrated Coach Factory, Chennai for supply of multiple items - Some of these items are manufactured by the applicant and some of them are procured for supply to the coach factory - In the opinion of the applicant, majority of the items supplied are taxable at the rate of 18% - The applicant is desirous of ascertaining whether their supplies made for the above purchase order amounts to composite supply or mixed supply - Further they have also entered into a contract with Krishna Bhagya Jala Nigam Limited for Design, manufacturing, supply, installation, operation and maintenance of Phase-II of SCADA and GIS based automation, for NLBC, SBC, JBC, MBC & IBC canal network systems including maintenance of the system for 5 years after commissioning of the scheme on turnkey basis - The applicant is also desirous of clarification as to whether the scope of work can be treated as supply of goods or works contract services and also request for the applicable rate of tax for the same.

Held:   As seen from the purchase orders issued by Integrated Coach Factory, Chennai,  it is for set of goods enumerated in the Schedule-I/Schedule-II - The price is all inclusive and the HSN codes and applicable GST rates are also given - The terms of payment are for supply of all the items treated as "complete rake sets" and not for part supplies - Further, the applicant has to give warranty for every equipment supplied under this purchase order and also repair or replace faulty supplies within the warranty period - The applicant is also obliged to give performance guarantee bond for all the supplies made under the "complete rake sets" - From the definitions given in s.2(30) and  s.2(74) of the Act, a composite supply is essentially a naturally bundled supply where two or more different supplies invariably exist along with each other - As against this, a mixed supply is not a bundled supply where the goods / services though supplied together are distinct and separately identifiable - However, a supply can be a mixed supply only if it is a single price - Therefore, the supply made by the applicant against the purchase order of the Integrated Coach Factory is a mixed supply and the rate of tax applicable is the highest rate of tax applicable to the particular goods constituting the mixed supply - Applying principle of Noscitur a sociis , it is seen from the purchase order that none of the goods supply fall under entry 8607 - They are also not essential components without which the whole rake cannot function, therefore the supplies made under the referred purchase order to Integrated Coach Factory, Chennai do not fall under entry 8607: AAR

GST - Insofar as the contract with Krishna Bhagya Jala Nigam Limited, Narayanpur Division, Hunasagi Taluk, Yadgir District in the State of Karnataka is concerned, a ruling on the same cannot be issued as the supplies have been made in Karnataka: AAR

- Application disposed of: AAR

2021-TIOL-252-AAR-GST

Vishal Cooperative Housing Society Ltd

GST -   In case of co-operative housing society, though annual turnover is more than INR20 Lakhs, monthly maintenance per month per member is less than INR7,500; but the society also has 68 commercial shops, 233 residential flats and 18 garages - Hence, the society does not contain only residential flats - In view of this applicant seeks a confirmation as to whether the society can stop paying GST and surrender the registration - Applicant also wants to know whether the registration is to be continued and whether the society can claim ITC on repairs, both major as well as minor - Further, as to whether the society can claim ITC on these services either fully or proportionately despite of availing exemption available to residential units.

Held:  Section 97(2), which encompasses the questions, for the ruling by the Advance Ruling Authority does not deal with the issue of whether a GST registration should be surrendered,  hence, it is held that this authority does not have jurisdiction to pass any ruling on such matters - ITC of GST paid on works contract service received by the applicant will not be available to the extent of capitalisation as mentioned in Explanation of Section 17(5) of the CGST Act, 2017 - Society can claim ITC on the input services, proportionately, as mentioned in Explanation of Section 17(2) of the CGST Act, 2017 when they provide both exempt and taxable services: AAR

- Application disposed of: AAR

2021-TIOL-708-CESTAT-MUM

Interface Communication Pvt Ltd Vs CCGST

ST - Assessee is in appeal against impugned order wherein the Commissioner (A) confirmed the interest on delayed payment of service tax through Cenvat Credit account - Interest is proposed to be levied on appellant for the period from October 2006 to September 2010 and the SCN was issued on 19.03.2012, during which period the department was only empowered to demand tax due for a period of one year unless, there is allegation of fraud, mis-representation, collusion, misstatement, suppression of fact or contravention to provisions of Finance Act is made with proposal for penalty under Section 78 of Finance Act, 1994 - No such penalty was proposed in SCN nor even there is any allegation of wilful withholding of payment of service tax on any of the above referred grounds was made - There is no requirement to give a finding that under Section 75 of Finance Act, interest is a natural corollary and consequence for any default of payment of service tax within the stipulated time - On the contrary, it can very well be said that the tax liability or its interest component can never be enforced and recovered from the assessee beyond the period from one year without any allegation of wilful non-payment on the ground of fraud, mis-statement or collusion - The impugned order is hereby set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2021-TIOL-707-CESTAT-KOL

Tengapani Tea Estate Vs CCGST & CE

CX - The issue relates to claim for interest under Section 11BB of Central Excise Act, 1944 on account of delayed grant of refund under Notification No. 33/99 - Since the claim for refund/exemption filed by appellants in 2008 was eventually adjudicated in their favour in 2019, it is evident that there was a delay in processing of refund in favour of appellants - Both the lower authorities have proceeded on the premise that communication dated 27 February 2019 is a claim for refund, which is factually incorrect - The said communication dated 27 February 2019 by appellants is only forwarding and inviting the attention of jurisdictional refund sanctioning authority to the Final Order dated 9 July 2018 passed by this Tribunal and cannot be construed as a fresh claim - As regards to applicability of interest on delayed sanction of refund under Section 11BB of the Act, said issue has already been decided in favour of appellant and against the revenue by Guwahati High Court in the case of Amalgamated Plantations 2012-TIOL-1097-HC-GUW-CX - Said decision has also been followed by Guwahati High Court in M.K. Jokai Agri Plantations (P) Ltd - Coming to issue as regards the date from which the period of three months has to be reckoned for the purposes of Section 11BB of the Act, it is settled by decision of Supreme Court in Ranbaxy Laboratories case 2011-TIOL-105-SC-CX that the said period has to be reckoned from the date of application for exemption/refund, which in the instant case is 10 January 2008, and not the date of adjudication or appellate order sanctioning the refund - The Appellate Commissioner completely misdirected himself in inviting reference to Section 11B(5)(B)(ec) of the Act dealing with the relevant date in the context of refund claims, which has no manner of application in determining the Appellants eligibility to claim for interest required to be ascertained in terms of Section 11BB of the Act : CESTAT

- Appeals allowed: KOLKATA CESTAT

2021-TIOL-706-CESTAT-MAD

Indian Shipping And Logistics Facility Pvt Ltd Vs CC

Cus - The appellant is aggrieved by revocation of license and imposition of penalty - The said order has been passed for violation of Regulation 10(n) of CBLR, 2018 - The appellant, a Customs Broker had visited the Delhi address of importer - Merely because he did not visit the factory at Jaipur, Rajasthan, it is held by Commissioner that there is violation of Regulation 10(n) of CBLR, 2018 - In fact, the address declared in bills of entry and bill of lading is that of the Delhi address and the said address is a proper one and not fake one - On verification, department has come to understand that there is no factory at Rajasthan address as declared in IEC, Aadhar and GSTIN - When these are documents issued by Governmental authorities, the Customs Broker cannot be burdened with responsibility of verifying the correctness of such address - The court do not find that there is any violation which is so grave for imposing such a harsh punishment of revocation of license - Taking note of the fact that the appellant has visited the Delhi address of importer and such address being not fake, the imposition of penalty is not justified - The department has failed to establish that appellant has violated Regulation 10(n) of CBLR, 2018 - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT