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I-T - Sale proceeds are to be received in convertible foreign exchange in India for being eligible to be considered for purposes of claiming deduction u/s 10 A: ITAT

I-T - Income from letting out property is classifiable under Business Income where person letting it out is engaged in sub-leasing of property & derives income from rental income ITAT

I-T - Delay on part of builder of new residential property, is not credible ground to deny exemption u/s 54F where proceeds from sale of old property could not be invested within statutory period of 3 years: ITAT

I-T - If assessee has already accounted for sales out of sundry credits, then resultant addition cannot be made in hence of assessee u/s 68: ITAT

I-T- For material belonging to assessee if found during course of search of third party, it is mandatory on part of AO to make assessment u/s 153C: ITAT

I-T - Defect in notice u/s 274 vitiates assumption of jurisdiction by AO to levy any penalty: ITAT

I-T- Assessee has not adopted colourable device in respect of transferring of shares, thus, action of AO in treating sale of shares as short term gains is not sustainable : ITAT

I-T - If no specific opportunity was communicated to assessee in order to make compliance with further information and evidences sought by AO, then such case calls for remand: ITAT

ST - Compensation paid to party upon cancellation of coal block allocation, will not attract service tax, since such compensation amount cannot be treated as consideration for tolerating the cancellation of allocation: CESTAT

CX - SCN hit by limitation where issued beyond statutory limitation, even where extended by 5 years: CESTAT

2021-TIOL-2173-HC-GUW-CUS

Rara Brothers Pvt Ltd Vs UoI

2021-TIOL-733-CESTAT-BANG

Bharat Earth Movers Ltd Vs CCE

CX - The appellants availed input service tax credit on certain common input services; they have used the same for clearance of both dutiable and exempted items manufactured by them - Department alleges that the appellants have not maintained separate inventory for input services utilized in terms of Rule 6(2) of CCR, 2004 - The issue pertains to 2006-2007 - Even if extended period was applicable, SCN should have been issued by April, 2012 - However, the SCN was issued on 17.08.2012 that is beyond the permissible period of 5 years without any authority of law - The appellants have submitted the same during the proceedings before Commissioner - However, the Commissioner instead of giving reasons as to how the SCN was hit by limitation simply observes that the appellant's claim that the SCN was received by them on 22.08.2007 is factually incorrect and it was a clear mis-representation of facts - When the SCN itself is issued in August 2012 which is clearly beyond the period of limitation, even if extended by 5 years therefore, it is to be held that the SCN is clearly hit by limitation and will not survive legal scrutiny - Appeal allowed on limitation without going into the merits of the case: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-732-CESTAT-KOL

MNH Shakti Ltd Vs CCGST & CE

ST - Coal blocks allocated to appellant as well as to several others were cancelled as per the judgment of Supreme Court - Thereafter, they were allotted to new companies - From the time they were allotted to appellant till their cancellation by Supreme Court, appellant had invested in mining in these blocks - In order to take care of this situation, CMSPA was passed which provided for payment of compensation to the old allottees by new allottees - Appellant received such compensation through Government - Case of Revenue is that the appellant is tolerating the act of cancellation and has received this amount as consideration for such tolerance - There was no consideration for tolerating the cancellation, only a compensation provided for statutorily for the investment made in the mines by appellant - Even in cases where any amount is received under a contract as a compensation or liquidated or unliquidated damages, it cannot be termed 'Consideration' - This case is not even a case of payment under a contract - Both the cancellation of allocation of blocks and the receipt of compensation are by operation of law - They are like the receipt of a compensation when one's land is acquired by Government in public interest or the payment to a Government employee of an amount equal to the salary for unused leave at the time of his/her retirement - It is unthinkable to say that the land-owner has tolerated the acquisition of his land as per an agreement and charge service tax on the compensation - Equally unthinkable is to say that the Government employee has tolerated the non-sanction of leave during his service as per an agreement and in consideration, received the leave encashment at the time of retirement and to charge service tax on the amount received as leave encashment - These, cannot be called taxable services of tolerating a situation by any stretch of imagination - No service tax can be levied on the amounts received by appellant as compensation - Since the matter is decided in favour of appellant on merits, it is not necessary to examine the question of limitation - All the penalties need to be set aside as well - The impugned order is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT