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I-T - Disallowance u/s 14A cannot be made where assessee did not utilise any interest-bearing funds for purpose of making investment: ITAT

I-T- Re assessment order passed on basis of 'change of opinion' as against that as is held while framing regular assessment u/s 143(3) can not be sustained : ITAT

I-T- Since notice issued u/s 148 is not validly served on the assessee, therefore, assessment order passed u/s 143(3) r.w.s. 147 without valid service of notice u/s 148 is void ab initio : ITAT

I-T - Without getting any defect in assessee's books regarding genuineness of consultancy charges, consultancy fee incurred wholly for business purpose cannot be disallowed on ad-hoc basis: ITAT

I-T - In absence of factual details, AO has rightly treated cost of software purchases as capital expenditure and allowed applicable depreciation : ITAT

I-T - Case can be remanded as lower authorities has proceeded with matter on the basis of misconceived and incorrect facts : ITAT

I-T - Subsequent mode of acquisition will not change nature of taxability : ITAT

Cus- Officers in dock - The question 'whether refraining from imposition of penalty is valid and legal' is de hors fiscal limits and is pure question of law- Monetary limits laid down in Board Circular inapplicable: HC

ST - COVID induced lockdown - Business folded up and hence payment of dues could not be made by deadline - Court is unable to come to petitioner's rescue as SVLDRS is a time bound scheme - Approach CBIC for relaxation: HC

GST - Dues of Rs. 43.50 Crores allowed to be paid in 24 equal monthly instalments along with interest on reducing balance - ITC adjustment against last instalment - Order cancelling registration will stand annulled on payment of first instalment: HC

GST - SCN merely articulates the case of respondent - There is no pre-determination of tax liability - Reply to be filed and matter decided within a fortnight: HC

GST - Refund u/s 77 is also available when the inter-State or intra-State supply made by a taxpayer is subsequently found by taxpayer himself as intra-State and inter-State respectively: HC

2021-TIOL-2297-HC-MEGHALAYA-GST

Jud Cements Ltd Vs CCGST & CE

GST - Total amount due as per the letter dated December 3, 2021 issued by the Assistant Commissioner, CGST, Shillong , Division comes to a staggering Rs. 43,49,50,071/- and the appellants seek to pay off such amount, subject to the adjustment on account of the appeals and Input Tax Credit (ITC), in 24 monthly instalments. Held : The entire amount of Rs. 43,49,50,071/- should be paid off by the appellants in 24 equal or nearly equal monthly instalments beginning December 15, 2021 and payable by the 15th day of the 23 succeeding months - Appellant assessee will also be liable to pay interest on reducing balance basis on the tax due component of the amount of Rs. 43,49,50,071/-, less any adjustment on account of appellate orders or ITC, which will be only against the last instalment – Interest will be calculated on reducing balance basis in respect of the tax due component - Immediately upon the first instalment payment being made in terms of this order, the order cancelling the GST registration of the appellant assessee dated February 10, 2021 will stand annulled and the respondent authorities should immediately restore the assessee's access to the relevant portal and all other facilities - It will be open to the respondent authorities to cancel the registration within 15 days of any default in payment in terms of this order and also deny access to the portal within seven days of any such default: High Court [para 5, 8, 9, 11]

- Petition disposed of: MEGHALAYA HIGH COURT

Healthcubed India Pvt Ltd Vs Assistant Commissioner (ST)

GST - Petitioner challenges SCNs issued u/s 129(3) of the Act, 2017 on the ground that there is predetermination and, therefore, they are liable to be quashed. Held: SCNs details and articulates the case of the respondent - It is for the petitioner to reply to the show cause notices to have the goods cleared - If the goods were really meant to be sent to Karnataka for which the petitioner had allegedly paid IGST amounting to Rs. 38,79,019/- under the provisions of IGST Act, 2017 , no useful purpose will be served by quashing the show cause notices by directing the respondents to issue a fresh show cause notices - Inasmuch as it would only further delay the clearance of the imported consignments - Writ petitions are disposed of by giving liberty to the petitioner to file additional representations and reply to the impugned show cause notices immediately - The respondent is directed to pass appropriate orders on merits and in accordance with law, within a period of 15 days: High Court [para 8, 9]

- Petitions disposed of: MADRAS HIGH COURT

Radhemani And Sons Vs Additional Commissioner (Appeals) of CGST & Central Excise

GST - Petitioner had filed a refund claim of Rs. 12,69,255/- u/r 89(1) of the Rules, 2017 on account of "Excess payment of IGST in February, 2018 in GSTR 3B Return" for the tax period February, 2018 in RFD-01 - SCN was issued and since the same was not replied, the refund claim was rejected - The Appellate authority dismissed the appeal by observing that refund would arise only when a supply considered as intra-State supply is so held by any authority as inter-State supply or where a supply considered inter-State by a supplier is so held by any authority as intra-Sate supply - Inasmuch as refund under the provisions Section 77 of CGST Act, 2017 and Section 19 of the IGST Act, 2017 would not arise suo motu and accordingly, the appellate authority has rejected the appeal while affirming the order of the Adjudicating Authority as passed on 23.04.2020 - Present petition is filed against the said order and the petitioner places reliance on the CBIC Circular No. 162/18/2021-GST, dated 25th September 2021 and wherein the meaning of the word "subsequently held" has been clarified that the refund under the said sections is also available when the inter-State or intra-State supply made by a taxpayer is subsequently found by taxpayer himself as intra-State and inter-State respectively. Held : It would be appropriate to remit the matter back to the appellate authority concerned - The order impugned is accordingly set aside and the matter is remitted back to the appellate authority concerned with a direction to decide the same afresh in the light of the circular issued on 25th September, 2021 in accordance with law - Petition disposed of: HC [para 6, 7]

- Petition disposed of: CHHATTISGARH HIGH COURT

2021-TIOL-2299-HC-KERALA-CUS

CC Vs C Madhavan

Cus - Penalty on officials of Customs department - On the ground that Revenue involved is less than Rs. 10 lakhs, CESTAT dismissed the appeal filed by the Department by referring to the monetary limits stipulated to the Department [F.No. 390/Misc./163/2010-JC dt. 17/12/2015] for filing appeals before the CESTAT/High Courts/Supreme Court, etc. - Hence the present appeal - Question canvassed by the Department is - Whether the Commissioner is right in law in not imposing any penalty at all on Officers - C. Madhavan and Anil Kumar. Held: Commissioner, depending upon the role each one of the individuals has played, exercised his jurisdiction, discretion and imposed penalty - Penalty imposed on individuals dealt with in paragraph 6 of the order dated 13.04.2015 varies from Rs. 15 crore to Rs. 1 lakh - When it comes to subject Officers, the Commissioner refrained from imposing penalties, therefore, this begs the very question, namely, whether the Commissioner has properly and correctly exercised the jurisdiction vested in him by Section 112 of the Act - First question that may come out for consideration before the Tribunal is not whether the penalty imposed on a particular individual is justified etc., but, the question is whether the non-imposition of penalty on respondent is tenable and in accordance with law - In the particular circumstances of the case, the question for decision before the Tribunal is: Whether refraining from imposition of penalty is valid and legal? - The question is de hors fiscal limits and pure question of law - The fiscal limits, unlike routine matters taken up by Tribunal, is not present in the case on hand, therefore, by referring to fiscal limits, not entertaining the appeal filed by the appellant herein on the strength of the Circulars issued from time to time, is unsustainable and illegal - The order under appeal is set aside and matter is remitted to CESTAT for consideration and disposal in accordance with law: High Court [para 6.2]

- Matter remanded: KERALA HIGH COURT

Convenant Insurance Surveyors And Loss Assessors Pvt Ltd Vs Designated Committee

ST - SVLDRS, 2019 - Last date for making payment had expired on 30.06.2020, by which time, on account of the outbreak of Covid-19, the business had been shut down - Petitioner sought extension but the same was not given and during the interregnum, the second respondent passed the impugned Order-in-Original dated 31.12.2020 - Petitioner submits that they are now willing to pay the amount but are unable to as the Web Portal does not permit the petitioner to make payment as the aforesaid Scheme came to end - Petitioner has, therefore, filed the present petition seeking a direction to the respondents for setting the case under the Sabka Vishwas (Legacy Dispute Resolution) Scheme 2019. Held: Though the petitioner has made out a reasonable ground, this Court is unable to come to rescue the petitioner as the aforesaid Scheme is a time bound Scheme - Unless the Authorities acting under Act issue appropriate guidelines, the officers acting under the Act cannot deviate - Petitioner has to work out the remedy before the Appellate Commissioner by filing suitable appeal under Section 84 of the Finance Act, 1994 - If such an appeal is filed within 30 days, the appeal shall be held maintainable - Meanwhile, the petitioner may approach the Central Board of Indirect Taxes and Customs and give a suitable representation for relaxation under the aforesaid Scheme to mitigate the hardship - Petition disposed of: High Court [para 8, 9, 11, 12]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-808-CESTAT-MUM

Vikhroli Corporate Park Pvt Ltd Vs CST

ST - The appellant was charging refundable security deposit from their tenant along with licence fee while renting immovable property - This security deposit was retained by them for duration of tenancy and refunded back on termination of tenancy agreement period - While determining the value of taxable services, appellant has not included the notional interest received by them on security deposit taken by them thereby undervaluing the taxable services in contravention to Explanation (a) to Section 67 - SCNs were issued to the appellant - The issue with regard to adding notional interest in taxable value of service provided was considered by Tribunal order 2016-TIOL-3265-CESTAT-MUM in appellant's own case - Since the appeal filed by Revenue challenging the order of Tribunal has been dismissed by Apex Court stating that there are no grounds to entertain this appeal, the doctrine of merger applies the order of the Tribunal and gets merged in that of Apex Court - The issue is squarely covered by earlier decision of Tribunal affirmed by Supreme Court - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

Turbhe Chemical Pvt Ltd Vs CCE

CX - The issues to be decided are; whether valuation of job work goods is governed by Rule 8 of CEVR, 2000 or on cost construction method, i.e., cost of raw material plus job charges - Whether there is suppression of fact or mala fide intention in non-payment/short-payment of duty on job work goods on the part of appellant - Job-worked goods manufactured by M/s. Turbhe Chemical Pvt. Ltd. was neither used by themselves nor on their behalf in manufacture of any other articles - Admittedly, the job-worked goods after manufacture was returned back to principal manufacturer M/s. Total Oil India Pvt. Ltd. and it is M/s. Total Oil India Pvt. Ltd., who have used the jobworked goods in manufacture of their final products and such manufactured goods were cleared on payment of duty - Therefore, ingredients of Rule 8 are not satisfied on the part of appellant, therefore, valuation of job work goods cannot be done under Rule 8 ibid - The very same issue has been considered by Tribunal in case of Rolastar Pvt. Ltd. 2012-TIOL-23-CESTAT-AHM and Advance Surfactants India Ltd. 2011-TIOL-757-CESTAT-BANG , which have been upheld by Supreme Court - In view of the settled position of law, the valuation of job-worked goods adopted by appellant i.e. cost of raw material plus job charged is correct and legal in view of the law laid down by Supreme Court judgements in case of Ujagar Prints 2002-TIOL-02-SC-CX-CB and Pawan Biscuits Co. Ltd. 2002-TIOL-04-SC-CX - As regards to suppression of fact with mala fide intention for non-payment/short-payment of duty appellant have been paying excise duty - The only lapse is that appellant have not revised the price after 2006, however on pointing out by audit, they have paid the duty along with interest - The duty so paid/payable by appellant is undisputedly available as Cenvat Credit to principal manufacturer M/s. Total Oil India Pvt. Ltd. - Therefore, it is a clear case of revenue neutral, so the mala fide intention cannot be attributed to appellant - There is no suppression of fact or mala fide intention on the part of appellant - The penalty is set aside. As regard to appeal filed by M/s. Total Oil India Pvt. Ltd., the demand of Cenvat Credit was confirmed only on the ground that the duty for which the Cenvat Credit was availed, was paid by M/s. Turbhe Chemical Pvt. Ltd. under suppression of fact - Since the excise duty payable needs to be recomputed in case of M/s. Turbhe Chemical Pvt. Ltd., consequential entitlement of Cenvat Credit to M/s. Total Oil India Pvt. Ltd. may also vary - However, since the appellants are entitled for Cenvat Credit the demand of Cenvat Credit is not sustainable - Consequently, penalty and interest corresponding to such Cenvat demands are also set aside - The amount of Cenvat Credit may also be re-computed in accordance with, re-computation of excise duty in the case of M/s. Turbhe Chemical Pvt. Ltd.: CESTAT

- Matter remanded: MUMBAI CESTAT

Gujarat State Fertilizers Chemicals Ltd Vs CCE & ST

CX - This appeal has been filed by assessee against demand of Central Excise duty, interest and imposition of penalty - The facts are identical to the facts involved in case of 2020-TIOL-788-CESTAT-AHM - Relying on the aforesaid decision, appeal is allowed on same terms as aforesaid order: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

Sony India Pvt Ltd Vs CC

Cus - The applicant has self-assessed the Bills of Entry in terms of Section 17 of Customs Act, 1962 - Same were also accepted by department inasmuch as no objections were raised and no re-assessment order was passed - The applicant submitted that as a consequence of re-assessment, they would be entitled for refund of duty amount already paid during course of assessment - There is no involvement of any additional duty payable by appellants - Thus, provisions of subsection (6) of Section 129A ibid shall not be applicable for payment of fee as contemplated therein - On identical set of facts, Larger Bench of Tribunal in Glyph International Ltd. 2013-TIOL-1103-CESTAT-DEL-LB while answering to the reference made before it, had held that the provisions of Section 86(6) of Finance Act, 1994 [pari materia to the provisions of Section 129A(6) ibid] shall not be applicable where there is no involvement of any duty amount - The said decision of Larger Bench was also upheld by Allahadbad High Court 2014-TIOL-525-HC-ALL-ST - The defect memos issued by Registry shall not stand for scrutiny - Accordingly, Registry is directed to accept the appeals filed by applicants and to assign the appeal numbers thereto and list the appeals for final hearing in due course of time: CESTAT

- Appeals disposed of: BANGALORE CESTAT