I-T - Order passed by AO without making proper enquiries and verification is erroneous and prejudicial to interest of Revenue as per Explanation 2 to sec. 263: ITAT

I-T- No disallowance of interest expenses on loan can be made when assessee has sufficient amount of fund available to justify interest-free loans and advances : ITAT

I-T - Claim of deduction u/s 54F can be allowed as assessee has reinvested sale considerations immediate on receipt for residential house :ITAT

I-T - Revisionary power cannot be exercised where no additions are framed during re-assessment later found to be invalid: ITAT

I-T - E xpenses belonging to PY but crystallized in the instant year can be allowed in absence of any change in tax rate for successive years : ITAT

I-T - Sec. 14A is not applicable to income received on shares and securities held by bank as stock-in-trade : ITAT

I-T- Exemption u/s 11 can be allowed as assessee actually pursued only objects classified in categories (a) to (c) and not following object of general public utility :ITAT

I-T - Expenditure can be deemed to be unexplained only when AO brings forth cogent evidence showing how such expenditure is from some third source which remains unexplained : ITAT

GST - It appears that behind the back of the firm, the ground which is not at all in the SCN has been considered and the appeal was consequently dismissed - Entire procedure undertaken is in absolute violation of principles of natural justice: HC

GST- Delay in granting IGST refund allegedly due to technical glitch- Interest to be paid @ 6% within six weeks: HC

GST - In cases of self-assessed returns, the Commissioner does not have the power to permit payment of tax in instalments: HC

ST - Tax demand on Chitty business for the period 2012-13 and 2013-14 is unsustainable: HC

State Legislature is denuded of its plenary power to deal with Entry Tax related matters on and from 16.09.16 when C.A Act 2016 came into effect: Tribunal

ST - The credit cannot be denied for the reason that the services have been availed in an unregistered premises: CESTAT

ST - There is no service provider-service receiver relationship between members of the same organisation - Demand of service tax does not survive: CESTAT

ST - Appellants proactively informed department about their activities and sought clarification on taxability - Instead of responding, department investigated after 2 years and issued SCN after another 2 years - Demand time barred: CESTAT

Cus - Since cross examination of persons whose statements were relied upon by adjudicating authority as well as while issuing SCN have not been granted, there is violation of principles of natural justice : CESTAT

2022-TIOL-408-HC-AHM-GST

Khodiar Export Import Vs State Of Gujarat

GST - Show cause notice was issued on a specific ground that the firm had not filed returns continuously for a period of six months - Respondent No. 3 cancelled the registration - Appellate authority behind the back of the firm took into consideration the report of the spot visit undertaken by the respondent No. 3 for the purpose of dismissing the appeal.

Held : The plain reading of the aforesaid order passed by respondent no. 3 would indicate that it is an absurd order; that it is a non-speaking order bereft of any material particulars and information - Insofar as the order passed by the appellate authority is concerned, it appears that behind the back of the firm, the ground which is not at all in the show cause notice has been considered and ultimately, appeal came to be dismissed - Entire procedure undertaken by the respondent no. 3 and the appellate authority is in absolute violation of the principles of natural justice - Writ application succeeds and is allowed - Impugned orders are quashed and set aside - GST registration stands automatically revived - Within two weeks, if the entire amount towards tax with penalty and interest is not deposited then it shall be open for the respondent No. 3 to once again pass an order cancelling the registration: High Court [para 4.4, 5, 6, 7]

- Petition allowed: GUJARAT HIGH COURT

2022-TIOL-407-HC-AHM-GST

Parekh Plastichem Distributors LLP Vs UoI

GST- IGST Refund - Main grievance as regards non-sanctioning of the amount towards refund has been taken care - The only issue now remains is as regards the statutory interest to be paid on the delayed refund amount- Counsel for Revenue submits that there was delay in processing the refund amount and actually crediting the said amount in the account of the writ-applicant on account of some technical glitch.

Held: Having regard to the facts and circumstances of the case, held that the writ-applicant herein is entitled to interest on the delayed payment towards refund at the rate of 6% [six per cent] as provided under Section-56 of the Act- Amount towards interest to be paid within a period of six weeks- Application disposed of: High Court [para 11, 12]

- Petition disposed of: GUJARAT HIGH COURT

2022-TIOL-406-HC-KERALA-GST

Muhammed Basheer Vs UoI

GST - Petitioner contends that due to the financial difficulty faced, he was unable to clear the tax liability for the period February 2021 and March 2021 and seeks the benefit of payment of the tax in 20 instalments.

Held: Though section 80 of the Act confers power upon the Commissioner to extend the time for payment, the said benefit is limited for payments other than those due under self-assessed returns - In cases of self-assessed returns, the Commissioner of GST does not have the power to permit payment of tax in instalments - As far as the present case is concerned, petitioner has not paid the tax for the period from February 2021 till date and hence he has already got the benefit of almost 12 months - The petitioner has already got the benefit of almost 12 months and respondents have agreed to accept the entire tax, if paid in full, immediately - In view of the aforesaid, a further grant of instalment is not warranted and the petitioner is bound to clear the liability without fail, immediately - Petitioner is bound to pay the tax for the month of February 2021 onwards, within a period of one month respondents shall accept the same and permit the petitioner to continue his registration under the Act – Petition disposed of : High Court [para 6, 8, 9]

- Petition disposed of: KERALA HIGH COURT

Tata Steel Ltd Vs State of West Bengal

Entry Tax - West Bengal Tax On Entry of Goods into Local Area Act, 2012 (Entry Tax Act) was introduced w.e.f 01.04.2012 in purported exercise of the power conferred under Article 246 read with Entry 52 of the list II of the 7th Schedule of the Constitution of India - The subject matter of taxation under Entry Tax Act was only goods which were imported from outside of state of West Bengal - The vires of this Act was challenged and the Single Judge Bench struck down this enactment on 24.06.13 - This verdict was challenged by the State before the Division Bench and the same is still pending - The Constitution (One Hundred and First amendment) Act 2016 came into force with effect from 16.09.16 and by virtue of Section 17(b) of this Constitution Amendment Act, the Parliament has omitted Entry no. 52 from the State list II of the Seventh Schedule of the Constitution - State of West Bengal has introduced West Bengal Finance Act 2017 (Amending Act of 2017) w.e.f 6th March, 2017 - Section 5 of this Amending Act of 2017 has made some amendments in the Entry Tax Act with retrospective effect and section 6 of the Amending Act 2017 has purported to validate the said Entry Tax Act - This Amending Act has also amended Rules 6, 7 and 11 of West Bengal Tax on Entry of Goods into Local Areas Rules 2012 retrospectively - Petitioners have challenged the vires of this Amending Act 2017 on various grounds.

Held:

+ It is palpably apparent that Entry 52 was dropped permanently so that State Legislature cannot make any law in the field of entry of goods into local area for consumption, use and sale therein. State Legislature has exclusive power to make laws with respect to any matters enumerated in list II of 7th schedule. Entry 52 having been omitted there is no vestige of power left with State Legislature to legislate or amend the law in Entry tax matter and this loss is absolute and final. [para 16.2]

+ In order to implement uniform tax structure effectively both Union and States had to surrender some its erstwhile exclusive fields of taxation and there was a realignment of legislative power of the Union and the States. Entry 52 of list II was a spoilsport, the presence of which would have obviously marred the successful implementation of GST. It was inconsistent with C.A Act 2016 and for that reason Entry 52 of list II was entirely deleted in C.A Act 2016. [para 17.5]

+ For existence of an inconsistency there ought to be an apparent conflict or contrary position. In our case Entry 52 has been deleted entirely and, therefore, nothing exists and nothing is left comparable with term 'inconsistent'. It is true that Entry 52 by its nature was not consistent with goal / purpose of C.A Act, 2016 but the word "inconsistent" used in section 19 has lost significance when the Entry 52 was dropped entirely. [para 17.6]

+ After harmonious construction of section 17 with section 19 of C.A Act 2016, Bench is of the opinion that the word "amended" or "repealed" are to be read disjunctively but distributively and the word "amended" in section 19 is meant for those entries of 7th schedule which are partially deleted and or substituted like entry 62 and the word 'repealed' is meant for those Entries of 7th schedule which were entirely deleted like Entry 52 of state list. In the instant case the State Legislature has nothing left for amendment of Entry Tax matter and it has no option but to repeal. Section 173 of W.B GST Act 2017 has accordingly repealed the Entry Tax Act 2017 w.e.f 01.07.17 but section 5 & 6 of Amending Act which have been enacted on 06.03.17 dealing in Entry Tax matter ostensibly with the help of section 19 of C.A Act. 2016 is, unconstitutional since section 19 of C.A Act 2016 has not conferred any right to amend the same, be it before expiry of one year. [para 17.7]

+ Section 19 of C.A Act 2016 is not the source of legislative power. The source of legislative power continues to be Article 245 read with Article 246 further read with seventeenth scheduled. Section 19 does not confer any new or additional power to anybody. It merely identified or recognised the power already inherent in the Competent Legislature. After deletion of Entry 52 the term 'amended' used in section 19 is no longer ‘including any matter relating to Entry Tax' and, therefore, the State Legislature is denuded of its plenary power to deal with Entry Tax related matters on and from 16.09.16 when C.A Act 2016 came into effect. [para 17.8]

+ In the instant case by enacting the Amending Act 2017 with retrospective effect despite having lost its plenary power the State Legislature has infringed the principle as discussed in Ramkrishna Ramnath ( (1962) SC. 1073 ). [para 19]

+ Section 19 of C.A Act 2016 has been enacted only to facilitate a temporary arrangement prescribing a mechanism which the Legislature are required to adopt in order to initiate the implementation of GST effectively. Section 19 has not conferred any power to amend the Principal Act (E.T Act 2012). [para 24]

+ State of West Bengal had no legislative competency to introduce section 5 and 6 of West Bengal Finance Act, 2017 w.e.f 01.07.2017 and the said provisions are hereby declared ultra vires and unconstitutional. [para 27]

- Applications allowed: WEST BENGAL TAXATION TRIBUNAL

2022-TIOL-245-CESTAT-MAD

Hid India Pvt Ltd Vs CGST & CE

ST - The first issue is with regard to rejection of refund claim holding that some of the input services have been received prior to obtaining service tax registration from department - The jurisdictional High Court in case of Scionspire Consulting Services (India) Pvt. Ltd. 2017-TIOL-798-HC-MAD-ST had considered the very same issue and held that the credit cannot be denied for the reason that the services have been availed in an unregistered premises - The Tribunal in the case of Vamshadhara Paper Mills Ltd. and Rajendra Kumar & Associates held that denial of credit cannot be justified on this ground - Following the same, it is held that the rejection of refund claims on this ground cannot be justified and same is set aside - The other ground on which the refund has been rejected is that FIRC statement and invoices bears the address of their Bangalore Head office - This issue has been analysed by Tribunal in appellant's own case for a different period and it has been held that the credit is eligible - Rejection of the refund claim cannot be justified: CESTAT

- Appeals allowed: CHENNAI CESTAT

2022-TIOL-244-CESTAT-BANG

Karnataka Cooperative Milk Producers Federation Ltd Vs CCE

ST - Appellant, a cooperative society, registered under the provisions of the Karnataka Cooperative Societies Act, 1959 - The appellant is an apex body having 13 members who are milk unions at the district level; the appellant is a Members' Association, or Members society formed for the purposes of promotion of diary development; the appellants promote diary development activities in the state on the pattern of AMUL; they procure orders on advance payments and inform the members to supply milk in bulk - appellants approached the department in November 2004 seeking advice on the applicability of service tax, however, they were orally advised that they are not liable to pay any service tax - An investigation was initiated and the appellants paid Rs.1,80,34,015/- and lodged their protest dated 1.6.2006 - A refund claim was filed on 6.12.2007 which came to be rejected and against which appeal is filed in ST/797/2009 - Department issued SCN dated 13.5.2008 alleging that charges received by the appellant from its members was in consideration for the services provided under the category of 'Business Auxiliary Service', 'Commercial Training or Coaching Services' and 'Consulting Engineering Services'; demands of Rs.2,26,52,152/-, Rs.45,20,550/- and Rs.5,972/- were confirmed under the respective categories and the same is assailed in Appeal No.ST/1143/2010.

Held : Any activity undertaken by the appellants is to be seen to be in the direction of benefit of its members i.e., themselves – Supreme Court in the case of Calcutta Club [ = 2019-TIOL-449-SC-ST-LB ] has held that associations prior to 1st July, 2012 were not included in the Service Tax net – Held, therefore, that the appellants are registered cooperative society and any such activity rendered by them to their member societies is a service to themselves and there is no service provider–service receiver relationship between the members of the same organisation – Demand of service tax does not survive on merits - Impugned orders are set aside and both the appeals No.ST/1143/2010 and ST/797/2009 are allowed with consequential relief: CESTAT [para 5, 5.2]

Limitation - Appellants have proactively informed the department in 2004 itself about their activities and sought clarification on the excisability to service tax - The department instead of giving clarification have decided to investigate the matter after two years and issued show-cause notice after further two years - Revenue has no case to invoke the extended period to issue show-cause notice, therefore, the impugned order does not survive on limitation either: CESTAT [para 5.2]

- Appeals allowed: BANGALORE CESTAT

2022-TIOL-243-CESTAT-BANG

Mukka Sea Food Industries Pvt Ltd Vs CC

Cus - The appellants are in appeal against impugned order wherein demand has been confirmed on account of undervaluation and various penalties have been imposed on all the appellants - The finding portion of adjudication order is verbatim to allegation made in SCN and there is no clear cut finding given by adjudicating authority with regard to defence taken by appellant during adjudication - Moreover, cross examination of persons whose statements were relied upon by adjudicating authority as well as while issuing the SCN have not been granted - There is violation of principles of natural justice - Matter is remitted back to adjudicating authority for de-novo adjudication after granting cross-examination of the persons whose statements have been relied upon for issuance of SCN and to consider the reply or submissions made by appellant during adjudication and give detailed finding on their defence and pass appropriate order in accordance with law: CESTAT

- Matter remanded: BANGALORE CESTAT

2022-TIOL-242-CESTAT-KOL

Greenply Industries Ltd Vs CCE & ST

CX - The short issue to be decided is, whether the Adjudicating authority was correct in rejecting refund application of appellant for fixation of special value addition rate for period 2008-09 to 2017-18 on grounds of limitation - Said issue has been dealt with by Gauhati High Court in case of M/s. Jyoti Labs Ltd. - Thus, by respectfully following the observations of said case, matter is remanded back to Adjudicating authority to consider the application of appellant for fixation of special value addition rate for the period 2008-09 to 2017-18 and pass speaking order thereto - Thus, appeal is allowed by way of remand to Adjudicating authority: CESTAT

- Matter remanded: KOLKATA CESTAT