2022-TIOL-121-ITAT-CHD

Jindal Petro Foam Vs ACIT

Whether when amounts of employees' contribution to ESI & PF stood paid before due date of filing of return, then employer is eligible to claim allowance u/s 36(1)(va) - YES: ITAT

- Assessee's appeal allowed: CHANDIGARH ITAT

2022-TIOL-120-ITAT-BANG

Megneil Tech Pvt Ltd Vs CIT

Whether if share of employee's contribution is made on or before due date for furnishing return of income u/s 139(1), then employer will entitled to claim deduction u/s 36(1)(va) - YES: ITAT

- Assessee's appeal allowed: BANGALORE ITAT

2022-TIOL-119-ITAT-MUM

Tulsi C Bhimjyani Vs DCIT

Whether u/s 148, AO cannot reopen concluded assessment on re-appraisal of same material available before AO during original assessment proceedings – YES: ITAT

- Assessee's Appeal partly allowed: MUMBAI ITAT

2022-TIOL-04-AAAR-GST

Shree Dipesh Anilkumar Naik

GST - Applicant (now appellant) is the owner of land & develops the same with infrastructure as per requirement of the approved Plan Passing Authority - After this development of the land, the applicant sells developed land as plots - The sale price includes the cost of the land as well as the cost of common amenities, Drainage line, Water line, Electricity line, Land levelling charges, on a proportionate basis -  Applicant sought to know as to whether GST is applicable on sale of plot of land for which, as per the requirement of approved by the  Zilla Panchayat, Primary amenities such as, Drainage line, Water line, Electricity line, Land levelling etc. are to be provided by them - AAR held that a s per clause 5(b) of the Schedule-II of the  CGST Act, 2017 , construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer is a "Supply of service" and, hence, is liable to GST; that, therefore, the activity of sale of developed plots would be covered under the clause 'construction of a complex intended for sale to a buyer' and hence GST is payable on the sale of developed plots -  Aggrieved,  appellant is before the AAAR.

Held:   Appellant is the owner of the land, who develops the land/gets the land developed with an infrastructure such as Drainage line, Water line, Electricity line, Land leveling etc. as per the requirement of the approved Plan Passing Authority (Jilla Panchayat) and thereafter, sells such developed land as plots - Sale of such sites is done to end customers who may construct houses/villas in the plots - The sellers charge the rate on super built-up basis and not the actual measure of the plot - The super built-up area includes the area used for common amenities, roads, water tank and other infrastructure on a proportionate basis. -Thus, in effect, the seller is collecting charges towards the land as well as the common amenities, roads, water tank and other infrastructure on a proportionate basis and all these are an intrinsic part of the plot allotted to the buyer - The above facts clearly indicate that sale of developed plot is not equivalent to sale of land but is a different transaction - Sale of such plotted development tantamount to supply/rendering of service - Supreme Court decision in Narne Construction P Ltd. relied upon [ CIVIL APPEAL NOS. 4432-4450 OF 2012 dated 10 May 2012 ] - The appellant's sales price includes the cost of the land as well as the cost of common amenities, on a proportionate basis - Schedule II of the CGST Act, 2017 pertains to activities or transactions to be treated as ‘supply of goods or supply of services' - As per clause 5(b) of the Schedule-II of the CGST Act, 2017, ‘construction of civil structure or a part thereof, intended for sale to a buyer' is a ‘Supply of service' and, hence, is liable to Goods and Services Tax (GST) - Thus, the activity of sale of developed plots would be covered under the clause 'construction of civil structure or a part thereof, intended for sale to a buyer' - Thus, the said activity is not covered under Entry No.5 of Schedule-III of the CGST Act, 2017 as contended by the appellant [i.e sale of land], but it is a supply of taxable service involving ‘construction of civil structure or a part thereof, intended for sale to a buyer' falling under the head ‘Construction services' appearing at Sr.No.3 of Notification No.11/2017-CTR and GST at the rate of 18% is payable - AAR/AAAR ruling in Maarq Spaces Ltd. - 2019-TIOL-454-AAR-GST , - 2020-TIOL-28-AAAR-GST and Bhopal Smart City Development Corporation Ltd. - 2022-TIOL-19-AAR-GST cited in support by the appellant cannot be relied upon since as per the provisions of s.103 of the Act, 2017, the Advance Ruling pronounced by the AAR or the AAAR shall be binding only on the applicant/appellant who had sought it in respect of any matter referred to in sub-section (2) of s.97 and the officer or the jurisdictional officer concerned in  respect of the said applicant - Held, therefore, that the order passed by the AAR is upheld to the extent it has been appealed against - Appeal rejected: AAAR

- Appeal rejected: AAAR

2022-TIOL-03-AAAR-GST

Aristo Bullion Pvt Ltd

GST - Applicant is of the view that  the input tax credit earned on the Gold dore, silver dore [which are used in the manufacture of outward supplies viz. Gold and Silver bars along with gold coins of various purities]  can be  used for payment of GST on the Castor oil seed - A ruling was sought in this regard and the AAR held that such credit earned cannot be used for payment of GST as opined by the applicant; that  the aforementioned inputs are not used or intended to be used in the course or furtherance of the business of supply of Castor oil seeds inasmuch as  basic conditions envisaged in the provisions of Section 16(1) have not been fulfilled  - Appeal filed before the AAAR.

Held:   Section 16(1) of the CGST Act only states the eligibility and conditions for taking ITC - It does not impose any restriction on utilisation of the legitimately earned ITC - It does not prescribe that ITC available in electronic credit ledger to be utilized only for the specific outward supply, on whose inputs such ITC was availed - Section 16(1) nowhere mandates to prove one-to-one correlation of particular inputs with particular outward supply - In other words, Section 16(1) does not require that payment of outward tax on particular outward supply can be made only from the ITC taken on particular inputs, which have nexus or connection with that outward supply - Therefore, amount of input tax credit lying in electronic credit ledger can be utilised by appellant for making any payment of output tax payable by him - Held, therefore, that payment of output tax on Castor Oil Seeds through utilization of Input Tax Credit taken on Gold & Silver Dore Bars etc. cannot be denied merely on the ground that the inputs have no nexus with outward supply: AAAR

- Appeal allowed: AAAR

2022-TIOL-125-HC-AHM-GST

Active Metals Pvt Ltd Vs State of Gujarat

GST - The applicant placed an order for procurement of brass scrap from a supplier M/s. Nexus Enterprises - In accordance with contract between them, goods were to be supplied to applicant from Maharashtra to be delivered at Jamnagar, State of Gujarat - Upon physical verification of goods, a report in FORM GST MOV-04 was prepared - The description and quantity of goods in transit was in accordance with invoice, E-way bills and other allied documents - However, till this date, respondent has not released the vehicle along with goods - Detention of conveyance and goods for an indefinite period of time is not going to serve any good purpose - As on date, there is no notice issued under Section 130 of the Act for the purpose of confiscation of conveyance and the goods - It is, ultimately, for the Department to take the final call whether any case for confiscation has been made out or not - This Court should not come in the way of Department in that regard - However, court should know the liability of applicant towards tax and penalty, i.e, upto the stage of Section 129 of the Act - Applicant is directed to deposit the amount with the respondent and upon deposit of such amount, respondent shall, at the earliest, release the conveyance and goods - Ultimately, it is for the concerned Department to decide whether any notice for confiscation under Section 130 of the Act should be issued or not: HC

- Writ application disposed of: GUJARAT HIGH COURT

2022-TIOL-124-HC-AHM-GST

Elecon Engineering Company Ltd Vs UoI

GST - The applicants are engaged in manufacture of goods and also said to be availing Cenvat Credit of inputs, capital goods and input services under CCR, 2004 - During audit, it is noticed that the applicants had cleared final goods to their various customers without payment of duty of excise by availing benefit of exemption Notfn 12/2012-CE, 18/12-CE and 64/1995-CE respectively - Upon receipt of SCN, an exhaustive reply was filed by applicants pointing out that so far as the Serial No. 336 of table beneath Explanation-II of notfn is concerned, it is not obligatory to submit Project Authority Certificates (PAC)- However, applicants conceded that so far as the Serial Nos.337 and 338 are concerned, it is necessary to submit Project Authority Certificates and those were in fact submitted - Having regard to reply of applicants to SCN and the specific stance, the office of Principal Commissioner through the Superintendent, thought fit to get certain facts verified through Assistant Commissioner (Prevention) Central GST & Central Excise - The Assistant Commissioner undertook the necessary exercise and filed its report - Prima facie, applicants were given a clean chit so far as the issue of submitting certificates of project authority are concerned, but Assistant Superintendent, in his report, pointed out that most of the clearances were under ICB-Para 8.2(f) of FTP - Since most of PACs were issued in year 2009-14, FTP of 2009-14 was referred to for the purpose of asserting whether writ applicants had fulfilled the conditions stipulated therein - Prima facie, it appears that Assistant Superintendent, in his report, stated that such conditions were not fulfilled - This part of report of Assistant Commissioner indisputably is not a subject matter of SCN - Prima facie, subject to what the other side has to point out that the SCN was only with respect to omission to submit the project authority certificates and not the clearances under ICB-Para 8.2(f) of FTP without fulfilling the conditions stipulated therein - However, the Principal Commissioner, while passing the final order, took notice of this and observed in impugned order as regards the various criteria which were required to be fulfilled before clearing the goods under the ICB - Applicant would submit that he has prayed for a writ of certiorari on the premise that impugned order travels much beyond the scope of SCN and no opportunity was given to them to say anything as regards the alleged clearances of goods under FTP without fulfilling the conditions stipulated therein - It is on such argument that they wants this Court to entertain application rather than asking the applicants to avail statutory remedy of preferring an appeal: HC

- Matter listed: GUJARAT HIGH COURT