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I-T- Assessment purely based on suspicion, surmises and conjectures without any tangible evidence on record against assessee of any connivance or collusion is unsustainable in law: ITAT

I-T - Assessee cannot be penalised for non-deduction of TDS where the Revenue does not establish that the payment in questions attracts TDS at all : ITAT

I-T- Assessment order cannot be held to be erroneous simply on allegation of inadequate enquiry unless there is an established case of total lack of enquiry : ITAT

I-T- Bogus purchases - Additions framed should exclude VAT element; include only profit embedded in such purchases: ITAT

I-T - As per sec. 145, income of assessee must be computed as per method of accounting regularly employed by assessee : ITAT

I-T - Addition u/s 68 cannot be made based on mere assumptions and in absence of any evidence that transaction is sham or bogus : ITAT

GST - TRAN-1 - If there is substantial compliance, denial of benefit of ITC ought not to be frustrated on the ground of technicalities: HC

GST - Concealment of material facts is enough to deny any relief claimed in exercise of the extra-ordinary discretionary jurisdiction under Article 226 - Costs imposed: HC

GST - Petitioner having availed of the relief u/s 74(5) of the Act cannot now turn around and challenge the said proceedings: HC

Misc - Principal dispute remains unadjudicated - Arbitral Tribunal was required to decide the disputes in accordance with law and not render a decision in disregard of the same - Award set aside: HC

ST - The introduction of a new law cannot be held to deprive the rights of a Taxpayer, especially when the tax payers' money lies with the Revenue, refund granted: CESTAT

Cus - Once the reassessment is acceptable to both the sides and if any refund arising out of said re-assessment, no question of filing the appeal arises: CESTAT

GST -Airbus Group India - Activity of appellant is intermediary services; place of supply is in India, therefore, does not qualify as export of service -Order of AAR upheld: AAAR

2021-TIOL-2203-HC-MAD-GST

CGST & CE Vs Bharat Electronics Ltd

GST - Single Judge had directed the respondent/appellant to enable the petitioner/respondent herein to file a revised Form TRAN-1, by opening of the portal - Such exercise was to be completed within a period of 8 weeks - Revenue, aggrieved by the said order has preferred this intra Court appeal.

Held: There seems to be a consistent view that if there is substantial compliance, denial of benefit of Input Tax Credit which is a beneficial scheme and framed with the larger public interest of bringing down the cascading effect of multiple taxes ought not to be frustrated on the ground of technicalities - Bench is, therefore, inclined to affirm the order of the Single Judge in directing the petitioner/ respondent to enable the respondent herein to file a revised Form TRAN-1, by opening of the portal and that such exercise is to be completed within a period of 8 weeks - It is open for the Revenue to thereafter examine the legality / correctness or otherwise of the claim of credit stated to be earned under erstwhile regime and transitioned to GST by the respondent / assessee in accordance with law - Writ appeal disposed of: High Court [para 12, 13, 14]

- Appeal disposed of: MADRAS HIGH COURT

2021-TIOL-2202-HC-DEL-GST

Vijay Steelcon Pvt Ltd Vs Pr.CCT (GST)

GST - Petitioner, inter alia, challenges the letter dated 24.03.2021 issued by the respondent no.1 whereby the bank was directed to release the said amount of Rs.65 lakhs to the petitioner, however, only for payment of Government dues - Petitioner further submits that as the deposit of tax was made under coercion, in absence of any proper adjudication and determination of tax liability against the petitioner , the same is liable to be refunded; that instead of determining the tax liability, the respondents have issued the impugned letter dated 24.09.2021 claiming that the amount was voluntarily deposited by the petitioner under Section 74(5) of the CGST Act and the proceedings have been concluded against the petitioner - Counsel for Respondent Revenue submits that the petitioner by a letter dated 24.03.2021 sought release of the fixed deposit of Rs.65 lakhs created out of the amount seized in the search of 04.03.2021; that in the said request letter itself, the petitioner had undertaken to pay all tax liabilities along with applicable interest and penalty 'voluntarily' and it was pursuant to this request that the impugned letter dated 24.03.2021 was issued to the bank directing release of the fixed deposit of Rs.65 lakhs to the petitioner, albeit for payment of Government dues only - Further, the petitioner never challenged the said condition and in fact voluntarily deposited the balance tax, interest and penalty amount of Rs.60,66,082/- with the respondents on 25.03.2021 and it was on this deposit that the proceedings against the petitioner were closed under Section 74(5) of the CGST Act - That the above documents have been intentionally concealed from the Court to set up a false case of coercion and the present petition, therefore, is liable to be dismissed on this short ground itself.

Held : Bench notes that the petitioner has not disclosed in the petition the letter dated 24.03.2021 by which it had sought the release of the amount of Rs.65 lakhs seized from the residential premises of its director on 04.03.2021 - Petitioner has also set up an apparently false case of the Panchnama not being provided to the petitioner since copy of the Panchnama produced by the respondents clearly bear the acknowledgment of receipt thereof by Mr. Budhiraja , Director and his wife - Above concealment is, therefore, enough to deny any relief to the petitioner in exercise of the extra-ordinary discretionary jurisdiction of this Court under Article 226 of Constitution of India - Tax amount has been deposited by the petitioner voluntarily and the case of coercion now being set up by the petitioner is an afterthought - In the present case, the petitioner availed of this remedy and based thereon, proceedings against the petitioner arising out of the search and seizure activities carried out on 04.03.2021 were closed - This was also informed to the petitioner vide impugned letter dated 24.09.2021 of the respondents - The petitioner having availed of the relief, cannot now turn around and challenge the said proceedings - Petition is dismissed with costs quantified at Rs.25,000/- to be deposited with Delhi High Court Legal Services Committee: High Court [para 13, 14, 15, 19, 22, 23]

- Petition dismissed: DELHI HIGH COURT

2021-TIOL-33-AAAR-GST

Airbus Group India Pvt Ltd

GST - Applicant had sought a ruling as to whether the activities proposed to be carried out in India by them would constitute a supply of "Other professional, technical and business services" falling under HSN code 9983 or as "Intermediary service" classifiable under HSN code 9961/9962 or any other classification of services as specified under the Tariff entries of rate notification issued under Goods and Services Tax law?  Whether the services rendered by the Applicant would not be liable to GST, owing to the reason that such services may qualify as ‘export of services' and consequently be construed as ‘Zero rated supply'?

Held: AAR observed that the Applicant plays an important part in identifying the vendors, making them understand the product requirement, advising and guiding them not merely on technical aspect of the product but also the ethical aspect in relation to such activities, without which, Airbus Invest SAS, France will not be able to procure the goods from the vendors; that the instant activity is nothing but facilitating the supplies to them from India; that, therefore, the activities performed by the applicant are fulfilling the parameters mentioned in the definition of ‘Intermediary' as per Section 2(13) of the IGST Act, 2017; that since the applicant is covered under Intermediary Services classifiable under SAC 998599,  the place of supply is India in terms of Section 13(8) of the IGST Act, 2017; that the services do not qualify as ‘export of services' in terms of s.2(6) and consequently are exigible to GST at the rate of 18% in terms of clause (iii) of entry no. 23 of Notification No. 11/2017-Central Tax (R) -Appeal filed against this ruling = 2021-TIOL-155-AAR-GST .

Held: One of the important requirements for supply of any service to be treated as 'export of service' is that the place of supply of service is outside India - The provisions for determination of place of supply of services where the location of the supplier or the location of the recipient of services is outside India are contained in Section 13 of the IGST Act, 2017 - Section 13(8)(b) of the said Act stipulates that the place of supply in the case of “intermediary” services will be the location of the supplier of service - In this case, the activity of the Appellant who is the supplier of intermediary service i.e. collection of information of parties in India, analysis of potential suppliers and skill development of existing suppliers, are all very much done in India, which is the location of the supplier of intermediary service - Therefore, by virtue of Section 13(8)(b) of the IGST Act, it automatically flows that the place of supply of the intermediary service provided by the Appellant to Airbus France, is in India - When the place of supply is in India, it does not satisfy one of the conditions for export of service, that the place of supply should be outside India - Therefore, held that the intermediary services provided by the Appellant to Airbus France, do not qualify as export of service -Ruling by AAR upheld and appeal dismissed: AAAR

- Appeal dismissed: AAAR

2021-TIOL-2204-HC-KERALA-VAT

Rekha Pharmaceuticals Vs State of Kerala

Whether assessment order imposing penalty on assessee merits reconsideration, where it has been passed by making bald reliance on third party statements - YES: HC

- Revision petitions allowed: KERALA HIGH COURT

2021-TIOL-2201-HC-DEL-MISC

Delhi Metro Rail Corporation Ltd Vs Kone Elevators India Pvt Ltd

Arbitration - In terms of the Special Conditions of Contract (SCC), it was agreed that concessional customs duty as applicable for project imports under Chapter 98.01 of Customs Tariff Act; Excise Duty; and VAT/GST would be reimbursed by DMRC on actual basis and on submission of documentary proof - M/s Kone claimed that it was entitled to Rs. 4,16,06,515/- being the GST payable on the aggregate value of Rs. 23,11,47,304/- of the invoices raised by it - M/s DMRC reimbursed an amount of Rs. 2,88,76,473/- against Kone's claim for reimbursement of GST, in terms of the tax invoices but declined to pay the balance amount of Rs. 1,27,30,042/- contending that prior to 30.06.2017, DMRC had already reimbursed a sum of Rs. 1,27,30,042/- as Excise duty on the said supplies and it claimed that Input Tax Credit for the said amount was available to M/s Kone against its GST liability of Rs. 4,16,06,515/- - Before the Arbitral Tribunal, M/s Kone filed its Statement of Claims claiming an amount of Rs. 1,27,30,042/- along with interest at 21% per annum from 24.10.2017 till the date of payment - In addition, Kone also claimed costs and expenses - Arbitral Tribunal held that Kone ought to have applied to the Authority for Advance Ruling (AAR) for seeking a specific clarification whether it was entitled to Input Tax Credit on account of Excise duty paid by it on the lifts in question - Arbitral Tribunal also held that since Kone had claimed reimbursement of Excise duty and DMRC had granted the same, it was a joint responsibility of both the parties to avail Input Tax Credit in respect of Excise duty paid by Kone - Arbitral Tribunal also concluded that Kone had not contravened the provisions of Section 171 of CGST Act, 2017 and had not caused any financial loss to DMRC by raising an invoice under the GST law instead of the VAT law - Arbitral Tribunal awarded 50% of the amount claimed, that is, Rs. 63,65,021/-, in favour of Kone in view of its finding that both the parties were responsible for not availing the Input Tax Credit in respect of the Excise duty paid on the lifts in question - Both parties are aggrieved by the impugned award and have assailed the same before the High Court.

Held: Principal question to be addressed by the Arbitral Tribunal was whether Kone was entitled to Input Tax Credit for the Excise duty paid on the lifts in question and, whether the failure on the part of Kone to avail of the Input Tax Credit entitled DMRC to withhold an amount equivalent to the said amount - The principal dispute before the Arbitral Tribunal remains unadjudicated - Arbitral Tribunal was required to address the question whether Kone was entitled to claim Input Tax Credit in respect of the Excise duty paid for the lifts in question prior to 30.06.2017 and if so, whether DMRC was obliged to reimburse the GST, notwithstanding, that Kone had not availed of such benefits - It is seen that the Arbitral Tribunal found both the parties wanting for not engaging in joint discussions for exploring the possibility of availing Input Tax Credit under the CGST Act and accordingly reasoned that both the parties should equally bear the amount of Input Tax Credit that may have been possibly available - Court is of the view that since the impugned award does not address the dispute, the impugned award in this regard is liable to be set aside - In view of Section 28(2) of the A&C Act, the Arbitral Tribunal was required to decide the disputes in accordance with law and not render a decision in disregard of the same, in the interest of justice and equity - Impugned award is set aside - The parties would be at liberty to initiate fresh proceedings in this regard: High Court [para 34, 47, 48, 50, 52]

- Petitions disposed of: DELHI HIGH COURT

2021-TIOL-747-CESTAT-MAD

ACC Ltd Vs CGST & CE

CX - The appellant is aggrieved by rejection of its claim for refund of duty and interest - The litigation with regard to the demand raised in SCN has continued till 27.02.2018 whereby the Commissioner (Appeals) has set aside the demand, interest and penalties confirmed in O-I-O - Though after the first adjudication and consequent appeal, appellant ought to have filed the refund claim within a period of one year, since the Department has adjudicated the SCN for a second time and confirmed the demand again, it cannot be said that the refund claim filed by appellant is time-barred - Refund claim is filed within one month after passing of second O-I-A - The claim having been made within one year from the date on which the demand was set aside by Commissioner (A) finally, the rejection of refund claim as time-barred under Section 11B of CEA, 1944 is not justified - Moreover, the amount having been paid as duty pursuant to SCN, question of unjust enrichment does not arise - Appellant is eligible for refund - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-746-CESTAT-BANG

Biocon Ltd Vs CCT

CX - Appellant, a 100% EOU had procured raw materials/inputs for the purpose of manufacture and export of its final products; that the importation of raw materials were allowed duty-free by virtue of Notification No. 52/2003-Cus. - They had also procured certain indigenously manufactured goods duty-free as per Notification No. 22/2003-C.E. - Revenue insisted for payment of duty involved which was paid by appellant and only thereafter, duty-free raw materials were destroyed under respective Mahazars and after that appellant filed its claims for refund of duty paid for two periods involved on the ground that the same was paid wrongly - An almost identical issue has been decided by very Bench in case of Saint Gobin Crystals 2018-TIOL-1236-CESTAT-BANG - The perusal of orders of lower authorities does not allege that the appellant had not fulfilled export obligation and accordingly, the ratio in said case squarely applies - Moreover, the Notification No. 52 ibid as amended by Notfn 30 and 34 ibid clearly prescribe vide new Condition No. 8 that no duty shall be leviable if raw material is destroyed within the unit after intimation to Customs authorities - Revenue authorities have erred in demanding payment of duty and consequently, appellant is entitled for refund of the same: CESTAT

- Appeals alowed: BANGALORE CESTAT

2021-TIOL-745-CESTAT-BANG

Green Agro Pack Pvt Ltd Vs CCT

ST - The assessee had filed a refund claim of unutilized/accumulated cenvat credit on input services used in or in relation to the manufacture of their final product in terms of Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE (NT) - The adjudicating authority sanctioned a partial refund by observing inter alia that the conditions of export of goods have been satisfied by taxpayer; that assessee being a 100% EOU, could not use the cenvat credit anywhere else except getting refund from Department and that they had substantially satisfied the conditions of said Notfn - On appeal, the Comissioner (Appeals) has allowed the Revenue's appeal thereby setting aside the refunds granted to taxpayer - The reasonings given by adjudicating authority are quite logical and well-founded - It is also well settled that the introduction of a new law cannot be held to deprive the rights of a Taxpayer, especially when the tax payers' money lies with the Revenue - The Commissioner (Appeals) has only extracted the findings of adjudicating authority to hold that the sanctioning order was not legal and proper, which is nothing but baseless and arbitrary & hence, the same cannot be sustained - Following the order in case of M/s. JMT Consultant Detailing Pvt. Ltd. 2020-TIOL-101-CESTAT-BANG , it is held that the appellant is entitled for refunds and same was correctly sanctioned by adjudicating authority and hence, the impugned order is set aside: CESTAT

- Appeals allowed: BANGALORE CESTAT

2021-TIOL-744-CESTAT-AHM

L And T Hydrocarbon Engineering Ltd Vs CCE & ST

ST - Appellant has provided output service and paid service tax thereon - Any service received by appellant is an input service and is entitled for Cenvat credit in terms of Rule 3 of Cenvat Credit Rules, 2004 - The adjudicating authority fell in error by holding that as the project was derailed therefore, no service has been provided by appellant - Although, during impugned period, i.e., April-2009 to March-2010, the project was work in process therefore, it cannot be held that no taxable service has been provided by appellant - Therefore, the observations made by adjudicating authority in impugned order are incorrect as later on the appellant has completed the project and paid service tax thereon - Appellant has provided taxable services and paid service tax thereon, therefore, any service used by appellant for providing said taxable service, appellant is entitled to take Cenvat Credit of the service received - Hence no demand is sustainable against appellant, consequently, no penalty is imposable - As the availment of Cenvat credit and derailment of project was well known to the respondents in October, 2011 it self, therefore, the SCN issued to appellant beyond normal period of limitation, i.e., one year is barred by limitation - The impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2021-TIOL-743-CESTAT-MUM

Brightpoint India Pvt Ltd Vs CC

Cus - The issue involved is, whether refund can be rejected on the ground that no appeal was filed against the Bills of Entry under Section 128 of the Customs Act, 1962, when the said Bills of Entry were re-assessed by way of amendment under Section 149 of Customs Act, 1962 - The refund was not filed against the assessment of Bills of Entry but the Bills of Entry were admittedly re-assessed by assessing officer in terms of Section 149 - Once, the Bills of Entry was reassessed by Revenue thereafter if neither side is aggrieved with said re-assessment, it attained finality - Accepting the reassessment, appellant filed refund claim which arose out of the re-assessment of Bills of Entry - Once the reassessment is acceptable to both the sides and if any refund arising out of said re-assessment, no question of filing the appeal arises - Therefore, the refund of appellant is line of the judgment in case of ITC Ltd. 2019-TIOL-418-SC-CUS-LB - Therefore, the contention of Revenue that appellant has not filed appeal against the Bills of Entry is absolutely incorrect - Accordingly, refund is clearly permissible: CESTAT

- Appeal allowed: MUMBAI CESTAT