I-T - Notional gain or profit cannot be taxed unless it has crystallised : ITAT

I-T - Shares received as gift by assessee are not chargeable to tax u/s 56(2)(viia), when shares are of company in which public is substantially interested : ITAT

I-T - Before relying on e vidence collected behind assessee's back, assessee must be given proper opportunity to cross-examine : ITAT

CX - Writ-application has been filed only with a view to overcome 10% of the pre-deposit - Statutory appeal route to be followed - application cannot be entertained: HC

GST - Respondent to find out some via media by which writ applicant is able to upload Form ITC-01 once again and seek refund - All the doors cannot be closed for all times to come: HC

GST - Alleged excess quantity of goods in vehicle than declared - Court cannot enter into issues that fall within the realm of disputed facts: HC

ST - Notice pay - Compensation for failure under a contract is NOT consideration for service:CESTAT

ST - A patient does not desire the doctor to be negligent and cause harm so that he gets a compensation - Each party to a contract desires the other to perform his part and not that the other party does not perform so that it can get a compensation: CESTAT

2022-TIOL-199-HC-AHM-GST

Ezzy Electricals Vs State of Gujarat  

GST - Writ applicant decided to opt out of the composition scheme w.e.f. 1st April 2018 - For the purpose of claiming an Input Tax Credit under Section 18(1)(c) of the G.S.T. Act, a Form GST ITC - 01 should have been filed within 30 days from the date of becoming eligible to avail the Input Tax Credit or within such time period, as may be extended by the Commissioner - It appears that the writ applicant was not in a position to operate the GST Portal on account of some technical issues - The writ applicant did try to upload the Form ITC - 01 on the basis of the Notification dated 17th September 2018 i.e. well within the extended time limit, however, an error report was generated on the portal and the writ applicant was unable to file such Form - It is the case of the writ applicant that since 24th September 2018, for not less than 15 times, they requested the authority to look into the matter and permit them to upload the Form ITC - 01 but without any response, hence the present writ application. Held: The question is whether all the doors are closed for the writ applicant for all times to come? - Is there any scope still for the authority to permit the writ applicant to upload the Form ITC - 01 for the purpose of claiming the refund towards the Input Tax Credit - The amount which could have been refunded at the relevant point of time is approximately Rs.5 Lakh - In the peculiar facts and circumstances of the case, Bench expects the respondents, more particularly, the respondent No. 5 to find out some via media by which the writ applicant is able to upload the Form once again and seek refund - Prima facie, Bench is of the view that it will be too much at this point of time to tell the writ applicant that as he was not in a position to operate the portal properly, he should now forget to seek any refund - Bench expects the respondents to try to find out some way having regard to the peculiar facts and circumstances of the case - Matter posted on 16th February 2022: High Court [para 9, 10] - Matter posted: GUJARAT HIGH COURT

2022-TIOL-198-HC-AHM-GST

AK Enterprise Vs State of Gujarat

GST - Writ applicant appears to be the owner of the goods which came to be seized and finally confiscated under Section 130 of the GST Act, 2017 - Petitioner seeks release of the goods and conveyance - Petitioner submits that the impugned order passed by the respondent No. 2 in MOV - 11 confiscating the goods as well as the conveyance is a non-speaking order - Respondent Revenue submits that the writ applicant was unable to prove the genuineness of the purchase; that it may be a cryptic order but the Authority has conveyed what it wants to convey in the facts and circumstances of the case. Held: Bench is of the view that it should not entertain this writ application against the final order passed by the Authority concerned in MOV-11 confiscating the goods and the conveyance - Bench relegates the writ applicant to prefer an appropriate appeal under Section 107 of the Act before the Appellate Authority - If any such Appeals are filed, the Appellate Authority shall look into those and decide them in accordance with the law expeditiously - Issue of delay should not come in their way so far as the Appeals are concerned - Appellate Authority shall not decline to entertain the appeals on the ground of limitation: High Court [para 7, 9] - Petition disposed of: GUJARAT HIGH COURT

2022-TIOL-196-HC-KERALA-GST

Kavery Traders Vs Asst. State Tax Officer

GST -  Petitioner had transported certain quantities of dry areca nuts, purchased from unregistered persons, allegedly supported by e-way bills - While the goods were being transported, it was intercepted on 10.01.2022 at 7.50 p.m., and after verification, the 1st respondent initiated proceedings u/s 129 of the Act, 2017 and detained the goods alleging 'excess quantity' - State Tax officer by an order dated 25.01.2022 rejected the objections and issued an order u/s 129(3) in Form GST MOV 09 concluding that the petitioner is liable to pay the amount of tax stipulated therein in respect of the excess quantity of goods in the vehicle than that declared. Held:  It can be noticed that the 2nd respondent has arrived at a conclusion that the quantity of the load that was being carried did not tally with the quantity mentioned in the e-way bills - Correctness or otherwise of the said conclusion falls within the realm of disputed facts - It is trite law that this Court cannot, in exercise of its jurisdiction under Article 226 of the Constitution of India, enter into issues that falls within the realm of disputed facts - Further, petitioner has an alternative and efficacious remedy under Section 107 of the CGST/SGST Act 2017 and hence it will not be subjected to any prejudice - Writ petition is dismissed - However, liberty of the petitioner to have recourse to the statutory remedies available shall not be prejudiced by this judgment: High Court [para 6, 7]

- Petition dismissed: KERALA HIGH COURT

2022-TIOL-200-HC-AHM-CX

Chandrakant Devilal Sharma Vs UoI

CX - Clandestine removal of excisable goods without payment of duty - Petitioner seeks an order or direction directing the respondents to immediately sanction and release the amount of 20% of the value of the recovery of duties and penalties, as Reward to the petitioners - It is the case of the writ-applicant No. 1 that it is upon the information furnished by him to the Department that the entire evasion of duty came to be earned earthed. The grievance redressed by the writ-applicants is that instead of rewarding him, the Department has gone to the extent of holding the writ-applicants liable for such evasion by virtue of the impugned order passed by the Commissioner, CGST & CEX, Gandhinagar. Held : Prima-facie, it appears that the penalty of Rs.40,00,000/- has been imposed upon the writ-applicant No. 1 under Sub-rule 1 of Rule 26 of the CER, 2002 on the premises that the writ-applicant No. 1 is the transporter of the goods manufactured by M/s. Bhairav Rolling Mills Pvt. Ltd. who had clandestinely removed M.S. Pipe and M.S. Sheet without payment of CE duty - Bench takes notice of the fact that the impugned order passed by the Commissioner, CGST & CEX, Gandhinagar is an appealable order - It appears that the present writ-application has been filed only with a view to overcome 10% of the pre-deposit - It is always open for the writ-applicant to prefer an appropriate application before the appellate authority with a prayer that the condition precedent of 10% of pre-deposit may be waived - So far as the issue of reward is concerned, same is kept open for the writ-applicant to challenge the same once there is a final adjudication as regards his liability to pay the amount of penalty - Application disposed of: High Court [para 5, 6, 7] - Petition disposed of: GUJARAT HIGH COURT

2022-TIOL-197-HC-AHM-CUS

Directorate of Revenue Intelligence Vs Angel Enterprise

Cus - Revenue is seeking clarification / modification of the order passed by a Coordinate Bench dated 18th August 2020 = 2020-TIOL-1419-HC-AHM-CUS , by which the Coordinate Bench ordered release of the goods in question subject to certain conditions - Apprehension of the department is that if 514 TV sets of M/s. Angel Enterprise (proprietary firm) are also handed over to the opponent herein, the proprietor may put-forward his claim on those 514 TV sets - Counsel for Revenue submitted that the department shall immediately give effect to the directions issued by this Court vide order dated 18th August 2020 with a slight modification that instead of 1821 TV sets, the department would release 1307 TV sets in favour of the client of Mr. Bharda . Held: Application disposed of with a further direction that the department shall at the earliest release 1307 TV sets in favour of the opponent herein keeping in mind the directions as contained in para 9 of the order dated 18th August 2020 = 2020-TIOL-1419-HC-AHM-CUS - Application stands disposed of: High Court [para 8] - Application disposed of: GUJARAT HIGH COURT

2022-TIOL-134-CESTAT-DEL

Rajasthan Rajya Vidhyut Prasaran Nigam Ltd Vs CCGST, CC & CE

ST -  Records of the appellant were audited by the Service Tax Department and it was found that the appellant has not discharged service tax on Rs.28,10,698/- which it recovered from its employees on their premature resignation, i.e., without giving the requisite notice period  - SCN was issued demanding Service Tax of Rs.3,55,472/- on the said amount - Assistant Commissioner confirmed the demand of service tax along with interest and imposed an equal penalty - As the Commissioner(A) upheld this order, the appellant is before the CESTAT. Held: Case of the Revenue is that the appellant had tolerated its employees resigning without the requisite notice period in return for a consideration and, therefore, the amounts received or recovered from such of its employees is exigible to Service Tax under Section 66E(e) of the Finance Act, 1994 - In the view of the Bench, this is not the correct reading of the contract - Each party to a contract desires the other to perform his part of the deal and not that the other party does not perform so that it can get a compensation - For instance, the patient desires the doctor to perform surgery with due care and does not desire that the doctor should be negligent and cause harm so that he can get compensation - What falls within the ambit of Section 66E(e) are cases where the essence of the agreement, i.e., the purpose for which the agreement is entered into itself is tolerating a situation or refraining from an Act in return for a consideration - Employment contracts are entered into with the expectation that the employer will continue to keep him employed for the period as agreed and that the employee will perform his duties diligently - They are not entered into so that the employer can remove the employer from service or so that the employee can resign and leave the service - Employee may decide to resign and leave the service which inconveniences the employer who will have to make alternative arrangements such as finding a substitute - A notice period on both sides is provided for so that the other party can make arrangements - If the employer decides to terminate the services without giving the required notice, the employment contract itself provides for a compensation to be paid - Both the notice period and the compensation are incorporated in the employment contact itself but these are not the purpose of the contract - Consequently, any compensation paid is not a consideration for the contract - Compensation for failure under a contract is NOT consideration for service under the contract and also following the law laid down by Madras High Court in GE T&D India Ltd. - 2020-TIOL-183-HC-MAD-ST that Notice pay, in lieu of termination, however, does not give rise to the rendition of service either by the employer or the employee, the impugned order upholding confirmation of a demand of service tax on the notice pay received/recovered by the appellant from its employees for premature resignation cannot be sustained and needs to be set aside - Appeal allowed: CESTAT  [para 11, 13, 15, 16, 19]

- Appeal allowed: DELHI CESTAT