Click to Nomination Visit: tiolawards.in

I-T - Assessment order will be held to be valid only when it is backed by proper reasoning : HC

I-T - For purpose of claiming deduction u/s 57(iii), it is not required that expenditure incurred is deductible only if expenditure results in any actual income: HC

I-T - U/s 132, authorised officer who conducts search and seizure becomes functus officio, w.r.t. seized articles/documents, after 15th day from seizure : HC

I-T - Undisclosed income - Additions unsustainable where based solely on unsigned documents & not backed by evidence: ITAT

I-T - Since assessee has been able to discharge initial burden establish identity, creditworthiness and genuineness as regards transactions concerning allotment of shares, no addition required to be made u/s 68 & 69C : ITAT

GST - Bogus ITC of 286 crores - It has nowhere been laid down as an inflexible rule that bail should not be granted in economic offences: HC

GST - Rule 97A cannot be construed in a manner so as to defeat the purpose of legislation - Manual filing of refund claim permissible: HC

GST - If monthly contribution collected from members by applicant CHS exceeds Rs. 7,500/-p.m, then GST is leviable on the entire value: AAR

GST - 'Class Monitor Home Learning Kit' is classifiable under HSN 4901 1020 and attracts tax @5%: AAR

2021-TIOL-260-SC-MISC

CCE & ST Vs Bilfinder Neo Structo Contruction Ltd

Miscellaneous - The issue at hand pertains to a statement titled Reducing Delays in Litigation Management presented before this Court - A Committee was constituted in order to facilitate the objective of ensuring that litigation involving the Union of India and the Tribunals constituted under revenue legislation, is duly monitored so as to provide seamless integration at all stages by adopting Information and Communication Technology (ICT). Held - Since the work of the Committee is an ongoing process, we consider it appropriate to list the further proceedings to monitor compliance on 7 March 2022 - In the meantime, the integration shall be extended, besides the Income Tax Appellate Tribunal (ITAT), also to the Customs Excise and Service Tax Appellate Tribunal (CESTAT) and other Tribunals - The Committee will co-ordinate with the President of the CESTAT in the meantime to ensure that this is achieved: SC

- Case deferred: SUPREME COURT OF INDIA

2021-TIOL-2254-HC-KERALA-CT

Hotel Asliya Grande Vs State of Kerala

Whether gross profits of the assessee can be adopted at a higher rate, solely on the assumption that the assessee, which is a three-star hotel, can turn huge profits - NO: HC

- Assessee's revision petition allowed: KERALA HIGH COURT

2021-TIOL-2249-HC-ORISSA-GST

Kashmir Kumar Agrawal Vs State Of Odisha

GST - It is alleged that the petitioner acting in collusion with other persons created 17 fictitious firms and availed bogus ITC of Rs.117.25 crores on the basis of fake purchase invoices and passed on bogus ITC of Rs.130.78 crores on the basis of fake sale of goods, both inside and outside the State of Odisha - Petitioner is in custody since 17.08.2020 and seeks bail. Held : From the report filed by the prosecution on 02.07.2021, it is seen that further investigation is still in progress - The question is, can this be a ground to deny bail to the accused indefinitely - It should be kept in mind that the offences under Section 132(1)(b)(c)&( i ) of the OGST Act are punishable with a maximum punishment of five years Rigorous Imprisonment, therefore, investigation ought to be completed within 60 days as per Section 167 Cr.P.C - Of course, Section 173(8) Cr.P.C . permits the investigating agency to keep the investigation open, but the same, if not concluded for an indefinite period, cannot obviously be cited as a ground to detain the accused in custody – It is not specifically put forth by the prosecution as to how the accused can possibly tamper with the evidence that has already been collected against him and which are basically document-based and also stored in electronic form - Apprehension expressed by the prosecution does not appear to be reasonable for being considered as a ground to refuse bail to the petitioner - Court finds that the petitioner has been successful in making out a good case for his release on bail - Application for bail is allowed on the terms and conditions as laid down: High Court [para 10, 11, 12, 13] GST - It has nowhere been laid down as an inflexible rule that bail should not be granted in economic offences: High Court [para 9]

- Application allowed: ORISSA HIGH COURT

Laxmi Organic Industries Ltd Vs UoI

GST - Refund applications were returned without being processed with an instruction that in terms of Circular No. 125/44/2019-GST dated 18th November 2019, a refund application has to be filed in FORM GST RFD 01 on the common portal and the same has to be processed electronically, with effect from 26th September 2019 - Petition has been filed against the said communication inasmuch as praying to hold and declare that impugned circular no. 125/44/201-GST dated 18.11.2019 in so far as it creates a condition that the refund application has to be filed online only as being wholly beyond the parent provision. Held: + There can hardly be any dispute that the Superintendent was under an obligation to follow the terms of the impugned circular dated 18 November 2019. However, it is axiomatic that the said Superintendent is also equally bound by the CGST Act and the CGST Rules and could not have turned a blind eye to rule 97A of the CGST Rules. [para 6] + Since rule 97A contains a non-obstante clause, it is intended to override rules 89 to 97 of the CGST Rules. The plain and simple construction of rule 97A is that despite rule 89 providing for electronic filing of applications for refund on the common portal, in respect of any process or procedure prescribed in Chapter X, any reference to electronic filing of an application on the common portal shall, in respect of that process or procedure, include manual filing of the said application. + If the argument of the respondent Revenue that no application in any form other than online can be received and processed is accepted, rule 97A would be a dead letter and rendered redundant. Rule 97A cannot be construed in a manner so as to defeat the purpose of legislation. [para 9] + Letter/communication dated 27th July 2021 issued by the said Superintendent stands set aside. [para 11] + It's (Circular's) terms shall be applicable only to applications filed electronically on the common portal but would have no applicability to an application for refund which is filed manually. [para 11]

- Petition allowed: BOMBAY HIGH COURT

2021-TIOL-280-AAR-GST

Mahindra Splendour Chs Ltd

GST - Applicant, a CHS, is liable to pay GST on the contribution received from its members: AAR GST - In case the monthly contribution collected from members by applicant CHS exceeds Rs. 7,500/- per month, then GST is leviable on the entire value of the monthly contribution collected: AAR GST - GST is applicable on Sinking fund, building repair fund & election and education fund collected from members as per the society by-laws : AAR GST - Charges collected by the society on account of property tax, electricity charges and other statutory levies would only be “excluded” while calculating the threshold limit of Rs. 7,500/- in terms of notification 12/2017-CTR, Entry no. 77: AAR GST - Contribution collected to defray expenses for supply of potable and non-potable water is not covered under Entry 99 of 2/2017-CTR so as to attract nil tax: AAR GST - ITC on the expenses incurred for heavy repairs and maintenance of the society building will not be available to the extent of capitalisation as mentioned in Explanation of Section 17(5) of the CGST Act, 2017: AAR

- Application disposed of: AAR

Adani Enterprises Ltd

GST - Services of construction of the Rehabilitation and Resettlement colony (R&R Colony) supplied by the Applicant would be taxed under the Works Contract Service -  Applicant will be eligible to avail Input Tax Credit of tax paid to the sub-contractor on works contract services for construction of R&R colony and utilize the same for providing/ supply of Works Contract service only - Further in view of Section 17(5)(c) of the CGST Act, 2017, the said credit should not be utilized towards the payment of GST liability with regards to any other service including Mining Service: AAR

- Application disposed of: AAR

Riseom Solutions Pvt Ltd

GST -   "Class Monitor Home Learning Kit" manufactured (printed), marketed and sold by applicant is classifiable under HSN 4901 1020 and the GST rate is 5% in terms of entry 201 of Schedule I of notification number 01/2017-CTR  - Learning kit is not in book form or bound form but separate sheets, hence cannot be covered under heading 4903 bearing nil rate of tax: AAR

- Application disposed of: AAR

2021-TIOL-783-CESTAT-MUM

Dow Chemicals International Pvt Ltd Vs CST

ST - Appellant has several manufacturing units located across India - They have separate registration as Input Service Distributor (ISD) at their Vikhroli premises for the purpose of distributing common credit to its units - During audit, it was observed that appellant did not maintain separate books of accounts under Rule 6(2) and failed to reverse the CENVAT credit under Rule 6(3) of CCR, 2004 - A SCN was issued to appellant proposing recovery under Rule 14 of CCR, 2004 along with interest and penalty under section 78 - Impugned order cannot be called a speaking order in any manner - Except for the brief discussion in "Discussion and Findings" recorded by Commissioner, Tribunal do not find anything anywhere in entire order, considering the allegations made in SCN and the submissions made by appellants while contesting the same - The only reason for rejection of claims made by appellants is that they have not furnished relevant information - In absence of any finding on consideration of said submissions, Tribunal is left with no other option but to hold that the impugned order fails all the test laid down by Apex Court in Kranti Associates Pvt Ltd 2010-TIOL-145-SC-MISC for considering an order to speaking order - No merits found in impugned order as it is devoid of any reasoning and is without consideration of submissions made by appellant - Matter is remanded back to original authority for consideration of same in light of submissions made by appellant - Since the matter is quite old, adjudicating authority should decide the matter within three months: CESTAT

- Matter remanded: MUMBAI CESTAT

Century Metal Recycling Pvt Ltd Vs CCGST

CX - Appellant is in appeal against impugned order wherein the demand of interest and penalty has been raised against them - Audit took place during 3rd February to 13 February 2015 for the year 2013-14, if audit could not take place then availment of inadmissible cenvat credit and non payment of service tax on legal services could not be revealed - Further, SCN has been issued within one year from the completion of audit - As admitted by appellant that they have not paid interest for intervening period which is required to be paid by them, demand of interest is confirmed - In terms of Section 11AC of the Act, appellant is liable to pay penalty also: CESTAT

- Appeal dismissed: CHANDIGARH CESTAT

Jyothy Laboratories Vs CCGST

CX - The assessee is located in the State of Jammu & Kashmir and availing the benefit of exemption Notfn 01/10-CE - They procured certain inputs and availed credit of duty paid on these inputs - The case of Revenue is that during the relevant period, an assessee is not entitled to avail credit against the inputs issued by units, who are availing exemption under Notfn 01/10-CE and after introduction of Notfn 02/14-CE (N.T.) , the notfn 01/10-CE was amended thereafter the credit was available to assessee - Without going into the merits of case, similarly placed assessee was allowed the credit although against those orders, the appeals have been filed by Revenue before Commissioner (A), in that circumstance, when Revenue is having divergent views on the issue, extended period of limitation is not applicable - Admittedly, SCN has been issued by invoking extended period of limitation, therefore, denial of credit is barred by limitation - Accordingly, impugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

Gulshan Ahmed Barbhuiya Vs CC

Cus - The goods were seized within India - The ground for seizure and subsequent confiscation is that the owners/occupants were not able to prove the licit import of Betel nuts which DRI suspected to be of foreign origin - The GST invoices and E-way bills produced by appellants were found to be not satisfactory - There is nothing on record to show that the betel nuts were notified under Section 123 - Therefore, the appellants had no responsibility whatsoever to prove that the seized betel nuts were not smuggled even if they were of foreign origin - It is for the Revenue to establish that the goods, in question, were smuggled - From the definitions, it is clear that even if the goods are of foreign origin, if they have been imported and cleared for home consumption, they cease to be imported goods thereafter and the importer ceases to be the importer - Therefore, no duty can be assessed on such goods under Section 17 of Customs Act - The burden of proof shifts to the importer or the owner of goods only when such goods are notified under Section 123 and betel nuts were not notified - Unless Revenue can establish that the betel nuts have been imported illegally into India, they cannot be confiscated - Therefore, the impugned order cannot be sustained - The impugned order is set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT