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I-T - If assessee's intention is to merely let out property or its part, resultant income must be assessed only as income from other sources : HC

I-T- Once acquisition proceedings are initiated under law, character of acquisition remains compulsory in nature and hence Section 194LA will apply : HC

I-T - Deduction cannot be allowed simultaneously u/s 80IA & u/s 80HHC: HC

I-T - Payment made by Trust to trustees towards services rendered, if found to be unreasonable, does not amount to violation of Section 13(1)(c): HC

I-T - Non-filing of statement u/s 194(c)(7) cannot take away benefit, which will accrue to assessee u/s 194(c)(6) : HC

GST - Wrongful ITC - Power to order provisional attachment is draconian in nature and the conditions which are prescribed by statute for a valid exercise of the power must be strictly fulfilled: HC

GST - Vague SCN - Anyone would be clueless - Senior most officer should recognise that there is a need for in-house training - Being a fresher, no cost is imposed on the officer concerned: HC\

GST - SCN lacks fundamental details - On a hollow foundation, no superstructure can be raised: HC

GST - Petitioner was constrained in obtaining new registration - This cannot be construed as his having given up the claim for restoration of old RC: HC

2021-TIOL-2260-HC-AHM-GST

Madhav Copper Ltd Vs State of Gujarat

GST - Petitioner challenges the provisional attachment order attaching the properties u/s 83 of the Act, 2017. Held:   The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled - Such powers when exercised must need to be preceded by the formation of an opinion by the Commissioner that it is necessary to so do it for the purpose of protecting the interest of the Government Revenue and the opinion needs to be formed on the basis of tangible material that the assessee is likely to defeat the demand, if any, and that therefore, it is necessary so to do for the purpose of protecting the interest of the Government Revenue - Court has prima facie noticed that the allegations made are of such a nature that the respondents have collected the material from the business premise during the investigation revealing that the company has availed the Input Tax Credit by engaging in billing transactions for wrongful availment of the ITC, the huge amount of ITC to the tune of Rs.137 Crores is alleged to be fraudulently claimed by the petitioner and according to the petitioner, the cancellation of registration number of the companies with which it was dealing would not be in many manner putting an onus on the petitioner company - Here is a public limited company, the allegation of wrongful availment of Rs.137 Crores and attachment order is without any credible material on record - According to the petitioner, unless the show cause notices are decided, it will be wrong to say on the part of the respondent that 36 registered dealers who had the GSTN and which were active on the date of supply of the goods and who had also filed the regular returns under the GST, for any default on their part, liability cannot be shifted on the petitioner - So far as the operating of the current account in Bank of Baroda, the credit of the ITC worth Rs.3 Crores and unlocking of the same, no order is presently needed to be passed and the same shall be considered by the authority concerned at the time of adjudication - Petition is being disposed of without entering into the merits of the matter - Investigation shall be completed within 8 weeks and the petitioner shall co-operate without fail - Petition disposed of without entering into the merits of the matter: High Court  [para 11.1, 16, 21, 22]

- Petition disposed of: GUJARAT HIGH COURT

2021-TIOL-2259-HC-AHM-GST

Arcelor Mittal Nippon Steel India Ltd Vs Asstt. Commissioner

GST -  Two separate applications came to be filed by the petitioners during the period from July, 2019 to September, 2019 for refund of unutilized compensation cess - Petitioners received two notices dated 11.03.2020 and 04.03.2020 under Rule 92(3) of the CGST Rules seeking to reject the applications for refund on the ground "other" -  Petitioner, in absence of any reasons for rejection, conveyed that it was not possible to reply to the show cause notice or to appear for the personal hearing and consequently the refund claim came to be rejected on 23.03.2020 - Petitions filed against this order. Held: The only ground assigned for proposing the rejection of the claim for refund is "others" with a remark that "error in adjusted total turnover" - It is surely and rightly has been termed as a show cause notice which is completely vague and lacks the fundamental details which otherwise is required to be given for anyone to comprehend the same - A notice since is a foundation of any proceedings and if the same is not clear and is vague, the very edifice is extremely weak and based on such hollow foundation, when an attempt is made to raise a superstructure, the same cannot be sustained - Not only the petitioner but anyone would be clueless as to what error the officer is attempting to point out - Not only the show cause notice lacks the clarity and requisite material necessary to meet with the same, the order impugned is also in clear violation of the settled cannon of law - Lack of reasons in the show cause notices has not enabled the parties to make an effective representation and file the reply nor would the grant of personal hearing for contesting such show cause notices would sub-serve the purpose - The order of rejection also is a non-speaking order and the same had been passed without bearing in mind requirements of giving any reasons for rejection -Entire proceedings initiated by the respondent in rejecting the refund claim since is in complete violation of the principles of natural justice and is also in clear breach of statutory requirement and can be termed as an arbitrary act on the part of the authority - Same deserves interference by quashing and setting aside the orders dated 23.03.2020 which are impugned in this petition - Matter relegated to the Deputy Commissioner for passing of fresh order after giving the opportunity of personal hearing to petitioner - Bench deems it appropriate to direct this order to be placed before the senior most officer for him to recognize that there is a need for in-house training for discharging the quasi-judicial function - As the officer concerned is a fresher, Bench resists from imposing cost - Petition disposed of: High Court [para 7.2,  7.3, 7.6, 8, 9, 10]

- Matter remanded: GUJARAT HIGH COURT

2021-TIOL-2258-HC-ORISSA-GST

Ashok Kumar Meher Vs CST & GST

GST -  Petitioner seeks a direction to the Opposite Parties to implement the order dated 17th September, 2018 passed by the Joint Commissioner of Sales Tax (Revisional Authority) directing restoration of old registration number. Held:   There is no valid reason given why the said registration was cancelled in first place without notice to the Petitioner - This failure to issue notice prior to cancellation was what led the revisional authority to order restoration of the old/original registration - With the Petitioner being constrained to apply for a new RC, in order to continue to transact business, it cannot be held against him that his application for the new RC should be construed as his having given up his claim for restoration of his old RC - Court finds the stand taken by the Opposite Parties in insisting on the Petitioner continuing with the new registration to be unreasonable particularly since admittedly the Department has not yet implemented the order dated 17th September, 2018 of the revisional authority while at the same time not challenging it - Plea of technical difficulties or technical glitches will not come in the way of the above order being given effect to - For this purpose, a direction is issued to GSTN to either modify or make changes in the portal to facilitate the Petitioner filing TRAN-1 to claim the ITC or accept returns manually against the old RC so that the Petitioner can avail of the ITC - Petition disposed of: High Court [para 10, 11, 13, 14]

- Petition disposed of: ORISSA HIGH COURT

2021-TIOL-787-CESTAT-AHM

Nilkanth Concast Pvt Ltd Vs CCE

CX - The appellant at the time of clearance of goods under area based exemption Notification No. 39/2001-C.E. has not paid the duty - Moreover, clearance of goods was made under guise of that waste coal and accordingly goods were clandestinely cleared and evaded the payment of excise duty - Though the appellant subsequently paid duty but at time of clearance they have misdeclared and cleared the goods clandestinely - Appellant has clearly contravened the condition stipulated under said Notfn - Therefore, re-credit of duty paid subsequently is not admissible to appellant - In respect of nonpayment of duty at the time of clearance, separate proceeding was initiated by department by issuing SCN wherein the suppression of fact or fraud was alleged - The said SCN has been decided against which appellant had filed an appeal before Commissioner (Appeals) who also upheld the remand order of Adjudicating Authority - As per submission made by revenue, said appeal has been withdrawn as the case of appellant was settled under SVLDR Scheme - Suppression of fact, fraud alleged and confirmed by revenue attained finality - Therefore, appellant's plea that there is no suppression of fact is of no help to them - There is clear contravention with malafide intention of Notification No. 39/2001-C.E. - Therefore, appellant is not entitled for re-credit of amount of duty paid in respect of goods clandestinely removed - Accordingly the impugned order is upheld: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT

2021-TIOL-786-CESTAT-MAD

Sterling Biotech Ltd Vs CGST & CE

CX - The issue to be decided is, whether appellants are eligible for credit availed on GTA services used for transporting waste/'sludge' from factory to the dumping yards - On perusal of records, it is seen that appellants have to remove the waste from factory to demarcated dumping yards as required by Pollution Control Board - If they do not comply with this mandatory requirement, their license for manufacture will be cancelled - Therefore, these services availed by appellant are in relation to activity of manufacture within the factory - Following the decisions of Tribunal in Shriram Rayons 2020-TIOL-305-CESTAT-DEL and Amphenol interconnect India Pvt. Ltd., it is held that the credit availed by appellant is eligible - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-785-CESTAT-MUM

Armstrong World Industries India Pvt Ltd Vs CC

Cus - The disputed goods imported by appellants on payment of SAD were sold in domestic market on discharge of appropriate VAT/Sales Tax amount levied by respective State Governments - Further, the conditions itemized in notification dated 14.07.2007 as amended, have been duly complied with by appellants, as a result, original authority had sanctioned the refund claim with regard to SAD amount paid in cash - The base notification dated 17.09.2007 and the amending notification nowhere specified that cash refund should not be considered, in eventuality, when the same was paid by using duty credit scrips - Since the legislative intent is to extend the benefit of exemption upon fulfillment of certain conditions, denial of such benefit in absence of any express provisions in statute defeats the very purpose of such legislation - Thus, the benefit of duty exemption provided in said notification should be available to appellant, even though the SAD amount was paid by using duty credit scrips - The Delhi High Court in case of Allen Diesels India Pvt. Ltd. 2016-TIOL-968-HC-DEL-CUS has held that upon fulfillment of requirements contained in notification, benefit of refund should be available to claimant - It has further been held that the circulars issued by CBEC, imposing additional restrictions for availment of benefit of duty exemption cannot be acted upon inasmuch as an amendment to notification can only be issued in exercise of the powers contained in Section 25(1) of Customs Act, 1962 and not otherwise - In view of the settled position of law, no merits found in impugned order, insofar as it has rejected the appeal filed by appellants in denying the refund benefit arising out of the notification dated 14.09.2007, as amended - Therefore, the impugned order is set aside: CESTAT

- Appeals allowed: MUMBAI CESTAT

2021-TIOL-784-CESTAT-MUM

Mohanan Nambisan Vs CCGST

ST - The appellants were providing outdoor catering services to various factories/business entities in Mumbai as well as in other places across the country and were paying service tax on outdoor catering services prior to October 2013 and stopped paying service tax on the value of outdoor catering services so provided after availing exemption under Notification No. 14/2013-S.T., wherever number of workers were more than 250 in a factory - They continued to pay service tax where number of workers were less than 250 in a factory claiming their services as outdoor catering services - SCNs were issued to the appellants - Since the issue involved is on all fours the same as that decided by Tribunal in Sai Food Services 2020-TIOL-1692-CESTAT-MUM & ICS Food Pvt Ltd 2018-TIOL-2349-CESTAT-ALL - No merit found in impugned orders demanding tax, interest and imposing penalty: CESTAT

- Appeals allowed: MUMBAI CESTAT