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I-T- Since assessee has furnished relevant details and evidences to prove genuineness of share transaction, addition made u/s 68 treating same as unexplained cash credit cannot be sustained : ITAT

I-T- Additional evidences submitted by assessee being necessary for deciding appeal, can be admitted : ITAT

I-T- A ssessee is entitled to claim exemption u/s 11 with respect to its activity of renting out hostel facilities to students being in nature of education : ITAT

CX - There is no right, procedurally or substantively or in compliance with natural justice and fair play, to make available witnesses whose statements were recorded, for cross-examination before reply to SCN is filed and before adjudication commences: HC

GST - Rule 108, no doubt, prescribes that appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after impugned assessment order is uploaded on GSTN portal: HC

GST - Supplier has consigned goods from Chennai to Trichy but invoiced the petitioner's HO at Telangana and paid IGST - Expired E-way bill - Vehicle and goods seized - goods to be released upon deposit of SGST & CGST: HC

GST - Switch Board Cabinet, though to be used in Railway coaches, cannot be called as parts of railway bogie - is classifiable under HSN 8537 @18%: AAR

GST - Fryums is a brand name and not a generic name - Fried Fryums is nothing but Papad in 'ready to eat form' & classifiable under CTH No. 1905 9040; attracts GST @18%: AAAR

2021-TIOL-2280-HC-MUM-GST

Meritas Hotels Pvt Ltd Vs State Of Maharashtra

GST -  An order of assessment of tax liability was passed under Section 62 on April 20, 2019 - On the very same day, the scanned copy of the impugned assessment order was communicated to the General Manager of the petitioner company - It is the case of the petitioner that the email received on April 20, 2019 remained to be reported by the General Manager to the Management of the petitioner company - It is only after the attachment of the bank account of the petitioner on July 1, 2019, upon initiation of recovery proceedings against the petitioner, that an application for certified true copy came to be made on November 5, 2019 - The certified true copy was made available on November 6, 2019 and the appeal under Section 107(1) of the Act was attempted to be filed in the physical form on November 20, 2019 which the respondent no.5 refused to accept or even acknowledge - The impugned assessment order was uploaded on GSTN portal only on January 8, 2020 whereupon the petitioner tried to file online appeal on the GSTN portal on January 10, 2020 - However, the status on the portal showed that there is a delay in filing the appeal - The point that arises for consideration in the present petition is, whether in the facts of the present case, the period of limitation for the purpose of filing an appeal under Section 107(1) of the said Act would commence from the date when the impugned assessment order is uploaded on the GSTN portal or from the date of service upon the petitioner of the scanned copy of the impugned assessment order by email on April 20, 2019.

Held:   In the present case, the impugned assessment order passed by the respondent no.4 was communicated by email to the General Manager of the petitioner on April 20, 2019 - It is not the case of the petitioner that the General Manager was not competent and/or not authorised to receive the communication of the impugned assessment order on behalf of the petitioner - Failure on the part of the General Manager to inform the petitioner regarding receipt of the impugned assessment order will not have the effect of extending the period of limitation prescribed under sub-section (1) of Section 107 of the said Act - The language of sub-section (1) or (4) of Section 107 of the said Act leaves no scope for any ambiguity - The period of three months prescribed will commence from the date on which the said decision or order is communicated to the petitioner - Sub-section (4) of Section 107 of the said Act provides for a window enabling the assessee to present the appeal within a further period of one month, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months - It is well settled that the right of appeal is a natural or inherent right but has to be regulated in accordance with the laws in force at the relevant time, the conditions having to be strictly fulfilled - Submission of the petitioner that except for communication of the impugned assessment order on the GSTN portal, all other communications are to be disregarded for the purpose of sub-section (1) of Section 107 of the said Act, is fallacious and too far fetched - Rule 108 no doubt prescribes that the appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after impugned assessment order is uploaded on GSTN portal online - In the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz. the date on which the order was sent by email to the petitioner - In the facts of this case, having regard to the express and unambiguous language of sub-section (1) of Section 107 of the said Act, Bench does not find any force in the contention of the petitioner that the date of uploading of the impugned assessment order on the GSTN portal has to be regarded as the date of communication for the purpose of calculating limitation - Though the petitioner was in receipt of the impugned assessment order by email on April 20, 2019 itself, the petitioner applied for certified true copy of the order dated April 20, 2019 on November 5, 2019, only after the recovery proceedings were initiated against the petitioner by attaching the bank account on July 1, 2019 - The petitioner has by such belated action lost the statutory remedy of appeal - Petition is dismissed: High Court  [para 8, 9, 12, 16, 17, 18]

- Petition dismissed: BOMBAY HIGH COURT

2021-TIOL-2279-HC-MAD-GST

TVL Panindia Tubes Pvt Ltd Vs Deputy State Tax Officer

GST - Petitioner has a unit in Trichy and had placed an order from a supplier namely Sreevatsa Tube Corporation, Chennai for supply of goods who had raised GST invoice on 03.11.2021 and had consigned the consignments to the petitioner's place of business at Thuvakudi in Trichy and billed/invoiced the Petitioner's Head Office/Registered Office in Telangana - Supplier has also charged applicable IGST treating the same as an inter-state supply - R espondent has seized the vehicle (as well as the goods) as the E-way bill which accompanied the goods had expired before the goods could be delivered and meanwhile the vehicle developed some technical snag -

Petitioner submits that the respondent be directed to release the vehicle.

Held: Prima facie , it appears that the petitioner is liable to pay SGST & CGST as the supply is within the State from Sembudoss Street, Chennai to the petitioner at Thuvakudi in Trichy, though the bill has been sent to the petitioner's Head Office/Registered Office in Telangana - Respondent is directed to release the vehicle subject to payment of the applicable SGST and CGST by the petitioner and which is to be treated as deposit - SCN to be issued accordingly - Petition disposed of: High Court [para 7, 8]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-287-AAR-GST

Prag Polymers

GST -  Switch Board Cabinet, though to be used in Railway coaches, cannot be called as parts of railway bogies under Chapter Headings 8607 of the Tariff, due to the specific HSN available for Switch Board Cabinet and, therefore, the Switch Board Cabinet merits classification under HSN 8537 - is covered under Entry no. 388B of Schedule III of 1/2017-CTR and attracts GST @18%: AAR

- Application disposed of: AAR

2021-TIOL-34-AAAR-GST

Shree Swaminarayan Foods Pvt Ltd

GST -  AAR held that 'Fried Fryums' manufactured & supplied by applicant is classifiable under Tariff Item 2106 90 99 and will attract GST rate of 18% as per Sl. No. 23 of Schedule III of Notification  No. 1/2017-Central Tax (Rate) -  AAR has ruled that the product in question 'different shapes and size Papad' merits classification under CTH No. 2106 9099 of Customs Tariff Act, 1975 on the grounds that PAPAD is a thing entirely different and distinct from FRYUMS; that in common parlance or in market, Fryums are not sold as "PAPAD" -  Aggrieved,  the   applicant has filed an appeal before the AAAR.

Held:   Both the products are different and have their individual identity - Fryums is a registered brand name (of TTK Healthcare Ltd.) and not a generic name of the product, therefore, impugned product "different shapes and size of papad", known as Fryums, is nothing but Papad -  Rule 3(a) of General Rule of Interpretation of the first schedule of Tariff states that the heading which provides the most specific description shall be preferred to heading providing a more general description - Hence the rule of interpretation for classification is that when a product is eligible to be classified under specific entry then classification under general entry should not be preferred - In the case at hand, the product "different shapes and sizes Papad" is "Papad" of different shapes and size and find specific entry at CTH No. 1905 9040, therefore, as per rule of interpretation, the product is to be classified under CTH No. 1905 9040 only and not under CTH No. 2106 9099 of the Customs Tariff Act, 1975 as classified by the GAAR; attracts GST @18% under Entry no. 16 of Schedule III of 1/2017-CTR -  Appellant's product is different shapes and sizes of Papad are available in ready to eat i.e. "fried Fryums" with masala, packed in small packet and do not require any further process of "Roasting" or "Frying" because these are already fried with masala and can be served for consumption immediately - Therefore, the appellant's product i.e. different shapes and sizes Papad in "ready to eat form" do not fall under the said entry number 96 of exemption notification 2/2017-CTR -  AAR Order modified: AAAR

- Appeal disposed: AAAR

2021-TIOL-2288-HC-MUM-CX

Prakash Raghunath Autade Vs UoI

CX - SCN dated 24 September 2020 was issued by Principal ADG, DGGSTI, Pune - Petitioner by a letter dated 23 October 2020 addressed to the Commissioner of CGST, Kolhapur denied the allegations levelled and requested the Commissioner to produce the witnesses based whereon the SCN came to be issued, for being cross-examined by him - Commissioner, by a letter dated 13 July 2021 responded by stating that the petitioner not having relied to the SCN, his request for cross-examination of the witnesses was premature; that as and when the petitioner files his reply, his request for cross-examination of witnesses would be examined - Aggrieved with this communication, the present petition has been filed seeking a writ of prohibition prohibiting the respondents from taking any steps or holding any proceeding pursuant to or in furtherance of implementation of the SCN dated 24 September 2020 until the respondent no.2 complies with the mandatory statutory procedure prescribed u/s 9D of the CE Act, 1944.

Held:   A stage prior to issuance of show-cause notice cannot be regarded as an inquiry or proceeding as contemplated in the Act -  Prior to the issuance of a show-cause notice, neither any inquiry nor a proceeding can be said to have commenced - Therefore, any statement recorded prior to the issuance of such show-cause notice is not a statement recorded in the course of an inquiry or proceeding and no right accrues in favour of a noticee to insist that he be offered for cross- examination the witnesses, whose statements have been recorded and are referred to in the show-cause notice, even prior to a reply thereto being submitted -  The only question is at what stage would he be entitled to cross-examine the witnesses - As has been held in G-Tech Industries ( 2016-TIOL-2749-HC-P&H-CX ) as well as in Parmarth Iron Pvt. Ltd. ( 2012-TIOL-1264-HC-ALL-CX ), it is only after the statements of witnesses are recorded by the relevant authority in course of adjudication of proceedings and such evidence is regarded as relevant that the noticee has the right to claim that he be extended the opportunity to cross-examine such witnesses so as to extend to him fair, reasonable and adequate opportunity of defence - Petitioner is granted liberty to file final reply within a fortnight - If in the course of adjudication  proceedings , any witness is summoned, in terms of the  power  conferred by s.14 and his  statement  is recorded and found relevant, such statement shall not be relied upon unless the  petitioner has been given suitable and reasonable opportunity to cross examine such witness - Aforesaid exercise is to be completed within six months - Petition disposed of: High Court [para 12, 13]

- Petition disposed of : BOMBAY HIGH COURT