I-T- Issue of unexplained cash deposits can be remanded back for reconsideration as in AYs 2013-14 to 2015-16, returns filed were accepted by AO applying section 44AD: ITAT

I-T - PCIT has invalidly and improperly exercised jurisdiction u/s 263 if AO has passed assessment order after examining issue in detail and has taken one of possible views on matter : ITAT

I-T - CIT (A) without any valid evidence merely on basis of finding that incomplete enquiries has been made by AO wrongly allowed Deduction of Capital Expenditure u/s 35(1)(iv) read with section 35(2) : ITAT

Service - An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice: SC

GST - Rectifying defects in filing appeal - Interests of justice demand that a liberal approach is adopted, especially since pandemic has affected every person, in every walk of life: HC

GST - Once petitioner undertakes remedy of a statutory appeal, it cannot thereafter turn around and approach Court to avoid mandatory pre-deposits: HC

VAT - Assessment orders warrant being quashed where they are not preceded by SCN: HC

VAT - Assessee's omission to produce original demand notice along with Memorandum of Appeal, does not amount to defect which cannot be cured by assessee : HC

2022-TIOL-344-HC-P&H-GST

Vijay Mamgain Vs State Of Haryana

GST - Petitioner has challenged the action of respondents in not releasing the conveyance even though he had paid the fine prescribed under Section 130(2) proviso of Central Goods and Services Tax Act, 2017 - Revenue states that a perusal of Section 129(1) ibid clearly shows that on detention, the goods and vehicle can only be released on payment of applicable tax and penalty and the mere fact that Section 130 ibid is subsequently invoked would not take away the rigour of Section 129(1) ibid - To force the owner of conveyance to pay tax, penalty and fine on the goods would mean that the owner of conveyance is also foisted with vicarious liability of any misdeclaration/fraud by owner of goods despite the proviso engrafted on to sub-section (2) of Section 130 ibid - Consequently, the argument of revenue is rejected and it is directed that the conveyance be released forthwith - The goods obviously would be confiscated and disposed of by revenue in accordance with law: HC

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2022-TIOL-343-HC-KERALA-GST

Balachandran Iyyadurai Vs Commissioner (Appeals)-V

GST - Petitioner had preferred an appeal - The respondent had noticed certain defects and it was intimated to the petitioner to rectify the same within seven days, however, on account of failure of petitioner to rectify the defects, the appeal came to be dismissed by the respondent, hence the present petition. Held: Respondent has adopted a hyper-technical approach in rejecting the appeal especially during these times of Covid-19 pandemic - Limitation periods had even been extended by the Supreme Court due to the unprecedented situation prevailing so that the litigants are not prevented from having access to justice, on account of prescribed periods of limitation - Court is of the opinion that one more opportunity ought to be granted to the petitioner to rectify the defects - Interests of justice demand that a liberal approach is adopted, especially since the Covid-19 pandemic has affected every person, in every walk of life - Respondent is directed to restore the appeal back to the files on condition that petitioner furnishes the additional court fee, as well as the certified copy of the order, appealed against, within a period of 15 days - Petition is allowed: High Court [para 4 to 6]

- Petition allowed: KERALA HIGH COURT

2022-TIOL-342-HC-KERALA-GST

Nico Tiles Vs State Tax Officer

GST - Once the petitioner undertakes the remedy of a statutory appeal under section 107 of the Act, petitioner cannot thereafter turn around and approach this Court seeking reliance upon subsequent events, to avoid the mandatory pre-deposits - Such a practice, if permitted, would render the provisions of the statute redundant - The subsequent events can, at the most, be utilised for availing the appropriate benefits while the appeal is considered on merits but not to overcome the mandate of pre-deposit under section 107 of the Act - Bench does not find the existence of any circumstances warranting the invocation of the extra ordinary jurisdiction, after invoking such an appellate remedy - Writ petition is dismissed: High Court [para 5, 6]

- Petition dismissed: KERALA HIGH COURT

2022-TIOL-341-HC-KERALA-GST

C A Shaji Vs State Of Kerala

GST - According to the petitioner, by virtue of circulars, Government had decided that the entire GST or a portion of it, as the case may be, paid by the respective contractors be refunded back to the Contractors – Petitioner is aggrieved by the delay in sanctioning the amount of GST receivable. Held: Court is of the opinion that the 1st respondent has to take a decision on the representations, in a time bound manner, bearing in mind the claim put forth by the petitioner; as expeditiously as possible, at any rate, within a period of three months - writ petition is disposed of: High Court [para 7]

- Petition disposed of: KERALA HIGH COURT

2022-TIOL-21-SC-SERVICE

S K Nausad Rahaman Vs UoI

Service - High Court has come to the conclusion that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group 'B' Posts Recruitment Rules 2016 do not contain any provision for Inter-Commissionerate Transfers (ICTs) and, on the contrary, stipulate that each Cadre Controlling Authority will have its own separate cadre, unless otherwise directed by the Central Board of Excise and Customs - The High Court held that ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016 and hence the circular withdrawing ICTs is not invalid - Appeals filed. Held : Transfer in an All India Service is an incident of service - Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service - An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice - Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration - Policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration - Executive instructions may fill up the gaps in the rules but supplementing the exercise of the rule making power with the aid of administrative or executive instructions is distinct from taking the aid of administrative instructions contrary to the express provision or the necessary intendment of the rules which have been framed under Article 309 - Inducting persons from outside the cadre by absorption requires a specific provision in the subordinate legislation for the simple reason that the concept of a cadre would otherwise militate against bringing in those outside the cadre - If the authority entrusted with the power of framing rules under Article 309 of the Constitution did so on the ground that the provision was subject to misuse and was contrary to the interests of the administration, no employee can assert a vested right to claim an ICT - The executive instructions which have been issued by DoPT in the form of OMs will not prevail over RR 2016 which have been framed under the proviso to Article 309 - Similarly, the instructions which were issued by the Department of Revenue on 27 March 2009, relaxing the ban on ICT, which was imposed on 19 February 2004 and the subsequent instructions dated 27 October 2011 were issued at the time when RR 2016 were yet to be framed - These instructions will not govern or prevail when the regime envisaged under RR 2016 came into force - High Court was right in inter alia coming to the conclusion that transfer is a condition of service and it is within the powers of the employer to take a policy decision either to grant or not to grant ICTs to employees; and the power of judicial review cannot be exercised to interfere with a policy decision of that nature - How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State - In crafting its policy, however, the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21 - Policy has to fulfil the test of legitimacy, suitability, necessity and of balancing the values which underlie a decision making process informed by constitutional values - While upholding the judgment of the Division Bench of the Kerala High Court, Supreme Court Bench leaves it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds - Appeals disposed of: Supreme Court [para 24 to 26, 32, 34, 39, 42, 51, 53]

- Appeals disposed of: SUPREME COURT OF INDIA

2022-TIOL-346-HC-KERALA-VAT

Karvy Innotech Ltd Vs State Tax Officer

Whether assessment orders warrant being quashed where they are not preceded by a Show Cause Notice - YES: HC

- Writ petition allowed: KERALA HIGH COURT

2022-TIOL-345-HC-KERALA-VAT

Chandran P R Vs CTO

Whether assessee's omission to produce original demand notice along with Memorandum of Appeal, amounts to a defect which cannot be cured by the assessee - NO: HC

- Writ petition allowed: KERALA HIGH COURT

2022-TIOL-208-CESTAT-CHD

Landis Gyr Ltd Vs CGST

ST - The appellant is in appeal against impugned order wherein the refund claim of credit remained unutilized on closure operation has been rejected - Tribunal in the case of Kirlosker Toyota Textile Machinery had an occasion to examine the issue and after examining the various judicial pronouncement on the issue has allowed the cash refund of credit lying unutilized on closure of the operation - Appellant is entitled to cash refund under Rule 5 of Cenvat Credit Rules, 2004 of credit lying unutilized in their Cenvat credit account on closure of operation - I mpugned order is set aside: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

2022-TIOL-207-CESTAT-DEL

Prayag Polytech Pvt Ltd Vs CCE & CGST

CX - A SCN was issued to appellant invoking extended period of limitation - The Director of appellant filed a written representation, wherein it was stated that physical verification of stock has not been done properly and the same is done only by eye estimation and there is bound to be discrepancy - However, it appeared to Revenue that this is a case of clandestine removal - There is no calculation sheet - Against the quantity mentioned against all the three items of stock of finished goods, it is not explained how the said quantity has been arrived at - Thus, evidently, it is a case of eye estimation - There is only an apparent difference of about 8 MT in three items, which is insignificant, not requiring any adverse inference - SCN is wholly mis-conceived - Appellant shall be entitled to consequential refund, if any under Section 35FF of Central Excise Act, 1944 with interest: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-206-CESTAT-KOL

Shree Ashutosh Exports Vs CC

Cus - The Appellant Shri Dilip Sarkar, Proprietor of M/s. Shree Ashutosh Exports had misdeclared the quantity of goods and had imported in excess of what was declared in Bill of Entry and other documents - Country of origin Certificate from Bangladesh (SAFTA Certificate) which would entitle to import goods under an exemption also cover such quantity of goods as was declared in Bill of Entry - What is in violation of Customs Act is only the excess quantity of goods which have been imported by importer without declaring it in any of documents - These goods are also not covered by SAFTA Certificate - In view of Sections 111(e) and 111(l) of Customs Act, 1962, the excess goods are liable for confiscation and not the entire consignment imported by appellant - The confiscation of remaining goods is not as per the law and accordingly is set aside - Consequently, redemption fine as well as penalty upon said appellant needs to be reduced in proportion to value of excess goods to the total value of goods - The appeal of Shri Dilip Sarkar is accordingly remanded to Adjudicating authority for limited purpose of computation of Customs Duty, Redemption Fine and proportionate Penalty - Regarding imposition of penalty on Authorized Representative of Customs Broker, there is no evidence on record that the Customs Broker was aware of alleged irregularity - As there is no material available on record against him, imposition of penalty on Shri Biswajit Mirdha is not justified and accordingly the same is set aside - For the vehicle being confiscated and penalty imposed upon owner Shri Uttam Biswas, admittedly, seized vehicle had been utilized for the purpose of importation of mis-declared goods - From the statement of owner of vehicle, it is abundantly clear that although his vehicle has been used for carrying of mis-declared goods, however, he had no personal knowledge in regard to loading of the goods - Accordingly, penalty imposed upon the owner of vehicle under Section 112(b) ibid is set aside - The redemption fine imposed for redemption of vehicle is reduced: CESTAT

- Appeals partly allowed: KOLKATA CESTAT