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I-T - Notice issued to entity which is non existent on account of merger with another entity, is invalid: HC

I-T - Revised returns submitted by an assessee cannot be declined solely on grounds that the same had not been filed electronically : HC

I-T - Failure of AO to issue notice within the period of limitation u/s 143 (2), which is notice giving jurisdiction to the AO to frame assessment, cannot be condoned u/s 292BB: HC

I-T - Writ remedy cannot be invoked in respect of assessment order which contains a technical error pertaining to computation of tax payable : HC

I-T - Since for bogus purchases AO has already made disallowance @ 20% which is more than that held by the Jurisdictional High Court, PCIT is not correct in exercising Revisionary Jurisdiction u/s 263 :ITAT

I-T - Where AO has taken a view which is possible and plausible, action of AO cannot be regarded as erroneous per se : ITAT

I-T - For bogus purchases addition should be made only to extent of profit element and in present case such addition can be restricted to 6% : ITAT

GST - Applicant is not holding license from Insurance Regulator to provide insurance service, hence service will get covered by residuary entry and attract tax @18%: AAR

GST - Applicant, a CHS, cannot be said to provide WCS services to its members - Debarred from taking ITC on GST charged by contractor who carries out major repairs, renovations and rehabilitation work for society: AAR

ST - Section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid: CESTAT

CX - The Pre Delivery Inspection (PDI) and After Sales Service (ASS) charges cannot be included in assessable value of motor vehicles: CESTAT

CX - Once credit is taken during period when the same is allowed to be taken, department cannot deny said credit: CESTAT

2021-TIOL-271-AAR-GST

Kasturba Health Society

GST - Applicant, a Charitable Society is engaged in imparting Medical Education - Service is exempt - applicant being an educational institution is liable for registration : AAR

GST - Fees and other charges received from students and recoupment charges received from patients would constitute as "outward supply" - Said charges collected are exempt from tax: AAR

GST - Cost of Medicines and Consumables recovered from OPD patients along with nominal charges collected for Diagnosing by pathological investigations, other investigation such as CT-Scan, MRI, Colour Doppler, Angiography, Gastroscopy, Sonography during the course of diagnosis and treatment of disease would fall within the meaning of "composite supply" and qualify for exemption under the category of "educational and/or health care services”: AAR

GST - Nominal charges received from patients towards an "Un-parallel Health Insurance Scheme" would fall within the meaning of "supply" and is taxable at 18%: AAR

GST - Receipt on account of rent is taxable at 18% - Food supplied to in-patients as advised by the doctor/nutritionists, as well as supply to employees and staff of the applicant; from such canteen, is a part of composite supply of healthcare and is not taxable - However, other supplies of food by a hospital to patients (not admitted) or their attendants or visitors are taxable at 5%: AAR

- Application disposed of: AAR

2021-TIOL-270-AAR-GST

Mahavir Nagar Shiv Srushti Co-Operative Housing Society Ltd

GST - Applicant Co-operative Housing Society has appointed M/s. Unique Rehab Pvt. Ltd., a contractor for carrying out major repairs, renovations and rehabilitation works for the society - The said contractor is charging service charges along with the GST for carrying out the works contract service - The applicant seeks to know whether they are eligible to obtain the ITC of such GST charged by contractor.

Held : A housing society is a collective body of persons, who stay in a residential society and the collective body, supplies certain services to its members, like collecting statutory dues to be remitted to statutory authorities, or maintenance of the building, etc. - As per section 2(17)(e) of the CGST Act, 2017, provision by a club, association, society, or any such body (for a subscription or any other consideration) of the facilities or benefits to its members is deemed to be a business - Thus, a housing society may be seen to be providing club and association services to its members but does not provide works contract service to its members - The housing society i.e. the applicant in the subject case, is making provisions of the facilities/benefits to its members and is not providing any works contract services to its members and, therefore, the applicant is debarred from taking Input Tax Credit under the provisions of Section 17(5)(c) of the CGST Act, 2017: AAR

- Application disposed of: AAR

2021-TIOL-758-CESTAT-DEL

Citibank NA Vs CC

Cus - The only allegation against appellant is that of wrong declaration in relation to an Airway Bill due to which demonetised Indian Currency notes got couriered to India under guise of being called as documents - The relevant provision for same under section 82 of Customs Act, 1962 which was very much the part of statute at the relevant time - The scope of section and that of declaration accompanying basic article is discussed by Tribunal in case of M. Vasi 2002-TIOL-483-CESTAT-MUM - The Bank had no role till the said courier was delivered to it by FedEx courier - It was for the Department to show that the Bank had a knowledge about declaration given on airway bill that the annexed parcel has demonetized Indian currency goods but has been declared as documents - But apparently there is no such evidence - The initial burden was on the department - There is nothing on record to show or indicate that it was appellant who has wilfully or intentionally made the declaration - Infact admittedly, declaration is not made by appellant, question of it to be their wilful and intentional act does not at all arise - Currency imported through courier mode is not allowed - Currency so received in bank was thus prohibited good liable for confiscation - But that no where proves that recipient of courier i.e. Bank was the importer of said prohibited goods - It also does not prove that Bank made a wrong declaration on the courier - The declaration was made by sender of courier and admittedly Bank is the recipient - Hence, the findings given in impugned order alleging the appellant to mis-declare are apparently wrong on the face of facts as well as documents - The order accordingly is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-757-CESTAT-MAD

PKF Sridhar And Santhanam LLP Vs CGST & CE

ST - The issue is with regard to rejection of refund claim on the ground that it is barred by limitation - The refund arises out of excess payment - The excess payment can be ascertained only when the appellant files ST-3 returns - When such facts are put into consideration, in strict sense, it cannot be said that there is a delay in filing the refund claim - It is an excess payment made by appellant - Needless to say that the department cannot retain any amount which is not collected/paid under authority of law - The jurisdictional High Court in case of 3E Infotech 2018-TIOL-1268-HC-MAD-ST has categorically held that section 11B cannot be applied when the tax has been paid under mistake and when not required to be paid - Similar view was taken by High Court of Karnataka in case of Way2Wealth Brokers Pvt. Ltd. 2021-TIOL-1969-HC-KAR-ST - This Tribunal in the case of Bhavya Enterprises and Nilkamal Ltd. 2021-TIOL-450-CESTAT-MAD has followed the decisions of jurisdictional High Court - Applying the said judgments/decisions, rejection of refund claim as time-barred in terms of section 11B of CEA, 1944 r/w section 83 of FA, 1994 cannot sustain - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-756-CESTAT-MUM

Skoda Auto Volkswagen India Pvt Ltd Vs CCE

CX - The issue involved is that whether the cost of Pre-delivery Inspection (PDI) and After Sale Service (ASS) charges required to be included in assessable value of motor vehicles sold by appellant to the dealers, when these charges/expenditure are incurred by dealers from their profit margin - The issue is no longer res integra as in appellant's own case, this Tribunal decided the issue and held that the said charges cannot be included in assessable value of the motor vehicles - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2021-TIOL-755-CESTAT-AHM

Atul Ltd Vs CCE & ST

CX - Assessee is in appeal against impugned order rejecting refund claim of Education Cess (E-Cess) and Higher Secondary Education Cess (SHE Cess) as was in balance on 28.02.2015 and carried forward till 30.06.2017 - The E-cess and SHE-cess were Cenvatable, credit whereof was allowed even for such inputs and capital goods which were received by manufacturer even after 01.03.2015 - Assessee had accumulated credit of E-cess and SHE cess - However, same could not be utilized till 30.06.2017 - The unutilized amount is assessee's money and, accordingly, has to be refunded to assessee - The Apex Court in case of Eicher Motors Ltd. 2002-TIOL-149-SC-CX-LB has held that once credit is taken during period when the same is allowed to be taken, department cannot deny said credit - Since the E-cess and SHE-cess were no more leviable after 28.02.2015, the credit on imports received by assessee post said date was permitted to be utilized for payment of duty of excise - Commissioner (Appeals) and even the Original Adjudicating Authority has given wrong interpretation to said notification by specifically holding that the credit of E-Cess and SHE-cess could not be utilized for payment of excise duty by virtue of Notification No. 12/2015 - This reason itself is sufficient to set aside the order under challenge - Since the unutilized credit becomes impossible to be utilized, said amount has to be refunded to assessee - W.e.f. 01/07/2017, the new Goods and Services Tax Act became operational, that utilization of said balance became impossible - However, in terms of section 142 of said new Act, amount is made refundable to appellant in cash - Denial thereof by Commissioner (Appeals) is highly unaccepted and is held absolutely unreasonable - The order under challenge is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT