I-T - New scheme of reopening of assessments would not be applicable only to period post April 01, 2021: HC

I-T - Time-barred reopening notice issued without following procedure contained u/s 148A, would not be revived by virtue of application of Section 149(1)(b): HC

I-T - Substitution of reassessment provisions framed under Finance Act, 2021 could not be deferred : HC

Service - Sunlight is the best disinfectant and RTI Act promotes the said concept: HC

RTI - Non-supply of information is a human rights violation as in the absence of the same respondent would not be able to agitate her right to promotion: HC

RTI - Employees cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment: HC

GST - Excess ITC allegedly claimed - Proper forum to assail demand would be to approach Appellate Authority rather than invoke writ jurisdiction: HC

GST - Non-availability of Form GST ITC-02A on GSTN Portal - Petitioner was deprived from availing ITC of Rs.2,58,03,590/- - such act is grossly illegal, arbitrary and unjust - Dept. ordered to regularise credit: HC

ST - CENVAT - Just because appellant is not paying tax/duty on job work activity, that by itself would not be termed as 'exempted services' - Pre-meditated misconception is without any basis: CESTAT

2022-TIOL-404-HC-DEL-SERVICE

UoI Vs Central Information Commission

Right to Information Act, 2005 - Appeal filed by UOI against order passed by Single Judge on 7 th December 2018 - Respondent No.2 working as a Superintendent in Administration with Enforcement Directorate (ED) had filed an application under RTI Act, 2005 and the Central Information Commission had directed the Appellant UOI to furnish copies of all the seniority lists in respect of LDCs for the period of 1991 till date; copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time - Aggrieved, the appellant UOI had filed a writ petition but the same was dismissed and, therefore, the present appeal.

Held: Undoubtedly, the Appellant is an intelligence and security organization specified in Second Schedule of RTI Act and is exempt from the purview of RTI Act [u/s 24] except when the information pertains to allegation of corruption and human rights violation - Though the term 'human rights' has not been defined in the RTI Act, yet it has been defined in the Protection of Human Right Act, 1993 - Court is of the opinion that the expression 'human rights' cannot be given a narrow or pedantic meaning - In fact, the human rights are both progressive and transformative - In the present case, non-supply of the information/ documents is a human rights violation as in the absence of the same respondent no.2 would not be able to agitate her right to promotion - If employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic - RTI Act is a tool which facilitates the employees and officers in airing their grievances systematically - It is said that 'Sunlight is the best disinfectant' and RTI Act promotes the said concept - Consequently, both service and RTI laws 'act like a safety valve in the society' - Employees of a security establishment cannot be deprived of their fundamental and legal rights just because they work in an intelligence and security establishment - To hold so, would amount to holding that those who serve in these organizations have no human rights - In the present case, non-supply of the information/documents is a human rights violation as in the absence of the same respondent No.2 would not be able to agitate her right to promotion - Court is of the view that information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Sections 8(1)(j) and 11 of the RTI Act - Court directs the Appellant to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time - Appeal disposed of: High Court [para 14, 16, 17, 18, 19, 20, 24, 25, 26]

- Appeal disposed of: DELHI HIGH COURT

2022-TIOL-401-HC-ORISSA-GST

Sreyasri Motors Vs CT & GST

GST - Petitioner assails the demands confirmed by the Deputy Commissioner on the ground that excess input tax credit has been allegedly claimed in the return in Form-GSTR-3B vis a vis Form-GSTR-2A; submits that reasonable opportunity to rectify such error that crept in while feeding onto the computer system during preparation of return, was not given, therefore, the present writ petition.

Held : The proper forum for the Petitioner would be to approach the Appellate Authority rather than invoke writ jurisdiction under Article 226 of the Constitution before this Court - Accordingly, the Petitioner is permitted to file Appeal under Section 107 of the OGST Act with an application for condonation of delay and if filed within a period of four weeks from today, the question of limitation shall not be pressed by the revenue keeping in view that the Petitioner was prosecuting its case in this Court - Bench is not inclined to interfere with bank attachment orders, however, the same shall be considered by the assessing officer/competent authority on the Petitioner satisfying statutory requirements including pre-deposit for filing of appeal - Petition disposed of: High Court [para 6, 7]

- Petition disposed of: ORISSA HIGH COURT

2022-TIOL-400-HC-RAJ-GST

Pacific Industries Ltd Vs UoI

GST - Section 25, Rule 41A - Petitioner assails the action of the respondent Department whereby the petitioner was deprived from submitting the Form GST ITC- 02A online and as a consequence, the petitioner was deprived from availing the Input Tax Credit to the tune of Rs.2,58,03,590/- through Form GSTR-3B - Petitioner has raised a pertinent grievance that the Form GST ITC-02A was not available on the GSTN Portal for the entire period of 30 days from the registration of its separate business verticals and even till the date of filing of the instant writ petition and as a consequence, the petitioner was denied the opportunity of transferring the unutilized input tax credit to its new registration which became effective on 16.04.2019 - Petitioner claims to have uploaded a manual copy and submitted the same to the Deputy Commissioner, CTO Ward, A-Circle Udaipur on 14.05.2019 but the same was not accepted - The petitioner claims to be suffering immense financial difficulty on account of not being able to use the unutilised input tax credit of GST to fulfil the tax liability of the new business registration.

Held: Bench is of the firm opinion that the impugned action whereby, the respondents have failed to acknowledge and transfer the input tax credit to the tune of Rs.2,58,03,590/- accruing to the petitioner pursuant to the registration of its new business unit in accordance with Rule 41A of the GST Rules, is grossly illegal, arbitrary and unjust - Respondents are directed to regularise the input tax credit in favour of the petitioner as per entitlement - The petitioner shall be allowed to avail the Input Tax Credit of Rs.2,58,03,590/- through the next GSTR-3B return - Petition allowed: High Court [para 7, 8]

- Petition allowed: RAJASTHAN HIGH COURT

2022-TIOL-238-CESTAT-BANG

Sagittarius Metals Pvt Ltd Vs CC, CE & ST

ST - Appellant is undertaking the activity of decoiling, leveling and shearing/slitting and other processes of HR coils or CR coils received from customers including manufacturers, on job work basis - It is the case of the appellant that it is charging job charges for undertaking its activity, some of the customers who were independent manufacturers duly registered as manufacturers under the provisions of Central Excise send coils on job work basis / challans either in terms of Rule 4(5) of the CENVAT Credit Rules or by following procedure under Notification No.214/86-CE  and based on such declaration, the appellant did not charge any service tax on job work charges billed on such manufacturers in terms of Notification No.8/2005-ST or Sl.No.30 of Notification 25/2012-ST - Insofar as the other customers who are not manufacturers, the appellant is duly discharging service tax on job work charges billed on such customers under the category of Business Auxiliary Service - Revenue took a view that the appellant was rendering both taxable as well as exempted services.

Held: Bench finds that the authorities below have not made any efforts to analyse the services provided by the appellant vis-a`-vis Rule 2(e) [exempted services] of CCR, to buttress their contention that what the appellant was doing would or would not fall under the definitions of Rule 2(e) - Just because the appellant is not paying the tax/duty, that by itself would not be termed as "exempted services" - When the appellant claims right from the beginning that insofar as job work issue was concerned, the applicable duty/tax was paid by the principal manufacturer, no attempt was made to disprove the same by the revenue, they simply went on the premeditated misconception that the job work on which the appellant was not paying taxes, was an exempt service - Such allegation cannot be sustained since without any basis - Demands raised are, therefore, contrary to law - Same are set aside being unsustainable - Impugned orders are set aside and appeals are allowed with consequential relief: CESTAT [para 5, 9, 11] 

- Appeals allowed: BANGALORE CESTAT

2022-TIOL-237-CESTAT-MUM

Gokul Exim Pvt Ltd Vs CC

Cus - Appellant filed a Bill of Entry for clearance of goods viz. "MS Plates in various thickness and various sizes (stock lot)" - Revenue was of the view that appellant had misdeclared with respect to its description and impugned goods were not covered by MTC - They were also restricted vide Notification No. 63/2008 as per Section 5 of Foreign Trade (Development and Regulation) Act, 1992 - They were liable for confiscation under Section 111(d) of Customs Act, 1962 and penal action under Section 112(a) of Customs Act, 1962 - Admittedly, impugned goods are classifiable as per ITC (HS) Code under the heading 7208 52 90 and the declared CIF value is US $ 425 per Tonne and hence as per this licensing note are freely importable - Licensing Note 3 provides for exceptions and the situations in which these goods when imported are freely importable and not restricted - Commissioner has himself held that the impugned goods are "prime" and have CIF value of US $ 425 per Tonne - The order holding goods as restricted cannot be sustained - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2022-TIOL-236-CESTAT-BANG

Gautam Bhattacharya Vs CCT

ST - Appellants are the partners of partnership firm namely M/s. Ernst & Young, LLP - They had filed their income tax returns showing components such as 'sale of services', against which partners have shown certain amount received from partnership firm as their income - Authorities below after examining the same raised a query to appellants, why not on account of sale of service be taxed under Finance Act, 1994 - The appellants replied to the queries but authorities below confirmed the demands on account of service tax payable by appellants - The service recipient at the best in this case is only a partnership firm - The partner of a partnership firm is none other than the same, therefore, one would cannot provide service to oneself - As there is no recipient of service in this case, no service has been provided by appellant - In income tax returns, figures shown by appellants as sale of service is just a portion of profit earned by them from the partnership firm - On merits itself, appellants are not liable to pay service tax - Moreover, said view has got support from the decision of Mumbai High Court in case of Amrish Rameshchandra Shah 2021-TIOL-583-HC-MUM-ST who is the another partner of appellants - No merit found in impugned orders, same are set aside: CESTAT

- Appeals allowed: BANGALORE CESTAT

2022-TIOL-235-CESTAT-ALL

Maa Vindhyavasini Tobacco Pvt Ltd Vs CCE & CGST

CX - The issue arises is, whether appellant have manufactured and sold chewing tobacco classifiable under Tariff Item 2403 99 10 of Central Excise Tariff or Jarda Scented Tobacco classifiable under Tariff Item 2403 99 30 ibid - It is evident from the test report that there is no presence of any odiferous substance - Accordingly, the product is 'branded chewing tobacco', there is no scope for Revenue for drawing any other conclusion - This finding is also fortified by Larger Bench ruling of Tribunal in case of Flakes-N-Flavourz , 2014-TIOL-3280-CESTAT-DEL, wherein it has been held that the products 'jarda scented tobacco' and 'flavoured chewing tobacco' are different - The Court below have erred in obtaining opinion of chemical examiner subsequently in year, 2019 behind the back of appellant and have relied on the same in mechanical manner without application of mind and without giving proper opportunity to appellant - Accordingly, in view of evidence on record, which is not disputed, it is held that appellant have manufactured 'branded chewing tobacco' classifiable under Tariff Item 24039910 ibid w.e.f. 01.06.2015 - Duty shall be payable accordingly with respect to number of packing machines operated from time to time, for which there is no dispute - Accordingly, impugned order is set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT