2022-TIOL-387-ITAT-DEHRADUN

DCIT Vs THDC India Ltd

Whether assessee can claim deduction u/s 80IA for excess provision written back, whereby expenditure is wholly and exclusively incurred for purpose of business – YES: ITAT

- Assessee's Appeals dismissed; Revenue's Appeals dismissed: DEHRADUN ITAT

2022-TIOL-386-ITAT-KOL

SRG Earth Resources Pvt Ltd Vs ACIT

Whether there is no disallowance u/s 36(1)(va), when employees' contribution to PF/ESIC is delayed as per prescribed due date but deposited before due date of filing ITR – YES: ITAT

- Assessee's Appeal allowed: KOLKATA ITAT

2022-TIOL-385-ITAT-KOL

Bozon Technologies Pvt Ltd Vs DCIT

Whether deduction of payment made towards Employee's Contribution to PF & ESI can be disallowed where payment is made before due date of filing ITR - NO: ITAT

- Assessee's appeal allowed: KOLKATA ITAT

2022-TIOL-384-ITAT-BANG

Sasken Technologies Ltd Vs JCIT

Whether sum received from licensing IPR is taxable as business income – YES: ITAT

- Case remanded: BANGALORE ITAT

2022-TIOL-383-ITAT-BANG

Biocon Ltd Vs DCIT

Whether provisions u/s 201 are triggered when assessee is deemed to be an assessee in default – YES: ITAT

- Case remanded: BANGALORE ITAT

ST - s.74(4) of FA, 1994 - Application for rectification of mistake - When hearing specifically sought, it ought to have been granted or refused by an order in writing: HC

GST - Circular 37/2018-Cus explains the provisions of drawback and it has nothing to do with IGST refund - sanction refund within two weeks along with interest @9%: HC

GST - Pandemic relief - Writ-applicants having paid the outstanding tax, the registration certificate should be restored so that they are able to continue with their business: HC

GST - Applicant cannot seek an advance ruling in relation to the supply where he is a recipient of such services: AAR

GST - Central Railway Dept. can be termed as Central Government - Applicant is supplying Composite supply of works contract involving predominantly earth work; rate is 5%: AAR

CX - The mere fact that the entire production of M/S SKFTIL is sold through M/s SKFIL is not sufficient to make them related parties: CESTAT

Cus - When the Shipper/Exporter have accepted their mistake, there being error at the time of packing the goods at their end, penalty imposed under Section 112(a) of the Act is set aside: CESTAT

ST - When payment of service has been received by appellant in convertible foreign exchange which satisfied the conditions required for treating the service as export of service, same cannot be chargeable to service tax: CESTAT

2022-TIOL-486-HC-AHM-GST

Swastik International Vs UoI

GST - Writ applicant firm realized that the Custom Broker had inadvertently claimed drawback at the higher rate by punching "A" as required under the Notification bearing No. 131/2016- Custom (NT) - Writ applicant firm had surrendered differential excess of drawback of the amount of Rs.60,05,893,31/- with interest amount of Rs.31,097.21 and the same has been duly acknowledged - Deputy Commissioner, Customs House, Pipavav rejected the claim of the refund of IGST raised by the writ applicant by referring to the Circular bearing No. 37/2018-Customs thereby stating that the exporter once having availed of an amount of drawback at higher rate in place of IGST refund than subsequently, the refund of IGST cannot be granted.

Held: Rule 96 of Rules, 2017 - So far as the stance of respondent Department of withholding of IGST refund by referring Circular bearing No. 37/2018-Custom is concerned, it is completely erroneous - Court has considered the aforesaid circular in the similar set of facts in the case of Amit Cotton ( 2019-TIOL-1443-HC-AHM-GST ) - Admittedly, the goods are exported outside India for the relevant months of July, 2017 and August, 2017 and one cannot lose sight of the fact that the writ applicant seems to have paid IGST @ 5% - Writ applicant is entitled to the refund of IGST as envisaged under the relevant provisions of IGST Act, 2017 - Respondent Authority is directed to immediately sanction the refund of IGST aggregating to an amount of Rs.37,10,326/- in regard to the shipping bills exported as "Zero Rated Supplies" within a period of two weeks along with interest @ 9% - Petition stands disposed of: High Court [para 5 to 8]

- Petition disposed of: GUJARAT HIGH COURT

2022-TIOL-485-HC-AHM-GST

Tahura Enterprise Vs UoI

GST - A show cause notice was issued to the writ-applicants on 24.5.2019 proposing to cancel the registration certificate under the G.S.T. Act on the ground that the writ-applicants had not filed the returns - 3rd respondent authority, however, proceeded to pass the impugned order dated 10.7.2019 cancelling the registration certificate - Writ-applicants did not file restoration application or appeal under the G.S.T. Act under a bonafide belief that compliance by way of filing of returns would be possible only once they were able to manage to arrange money for paying up the tax as per the returns to file - Ultimately, in July 2021 the writ-applicants could muster the finances for making payment of tax dues under the G.S.T. Act and therefore, they immediately filed a restoration application before the authority - 2nd respondent authority has dismissed the request for restoration of the registration certificate by impugned order dated 14.09.2021 on the ground that the same is time-barred by limitation, therefore, the present petition.

Held : As the application filed by the writ-applicants for revocation of cancellation of registration was looked into by a quasi-judicial authority, the order of the Supreme Court extending the period of limitation in view of the Covid-19 Pandemic would apply and in such circumstances, the limitation in accordance with the order passed by the Central Board of Indirect Taxes and Customs could be said to have been extended - Since the registration of certificate of the writ-applicants came to be cancelled solely on the ground of non-filing of the returns, which was on account of non-payment of tax and the writ-applicants now having paid such outstanding tax, the registration certificate of the writ-applicants should be ordered to be restored so that they are able to continue with their business - Impugned order is set aside - respondents are directed to forthwith restore the registration certificate of the writ-applicants [para 9, 10, 11]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-45-AAR-GST

SNG Envirosolutions Pvt Ltd

GST - Applicant has entered into an agreement with Department of Health Services, Department of Health & Family Welfare, Government of West Bengal for collection and disposal of bio-medical waste from various clinical establishments - In order to fulfil its obligations under the aforesaid agreement, the applicant entered into an agreement with Medicare Environmental Management Private Limited whereunder Medicare was appointed as a sub-contractor for collection and disposal of bio-medical waste - Applicant has sought a ruling as to whether the provisions of Entry no. 3 of 12/2017-CTR is applicable to the applicant/sub-contractor of the applicant and whether Entry no. 75 of 12/2017-CTR is applicable to the sub-contractor.

Held:  In the instant case, the applicant has entered into agreement with State Government for the collection and disposal of bio-medical waste from various clinical establishments and for which, State Government is liable to pay the consideration to the applicant - Applicant provides pure services and does not supply any goods - So, there can be no dispute that the applicant is supplying the services to State Government -  Following the same principle, since Medicare raises invoices on the applicant for the work done by it as a sub-contractor and the applicant is liable to pay the consideration to Medicare, admittedly it is a supply by the sub-contractor to main contractor i.e., supply of services by Medicare to the applicant - S ervices provided by the applicant for the collection and disposal of bio-medical waste from various clinical establishments is found to be a matter as listed in the Eleventh and/or Twelfth Schedule in relation to functions entrusted to a Panchayat under article 243G and/or to a municipality under article 243W of the Constitution of India - Therefore, such services shall get covered under entry serial number 3 of Notification No. 12/2017-Central Tax (Rate) and are exempted - Insofar as the question as to whether the sub-contractor is entitled for exemption is concerned, section 103(1) of the Act, 2017, categorically speaks that the ruling pronounced is binding only on the applicant and on the concerned officer or the jurisdictional officer in respect of the applicant and in no way, the ruling shall be binding on the supplier of such goods or services - Any provisions of the Law, therefore, should not be interpreted in a way which defeats the very purpose of the objective and purpose of the law provision - Authority is,  therefore, of the view that in the subject application, the applicant cannot seek an advance ruling in relation to the supply where he is a recipient of services - Application disposed of: AAR

- Application disposed of: AAR

2022-TIOL-44-AAR-GST

Shri Venkateshwara Infrastructure JV

GST - Applicant has been allotted earthwork in embankment, cutting and bridge approaches etc. of Central Railway Department - Specific question raised by the applicant is, whether the impugned supply as per the subject Work Order received, is covered under Sr. No. 3 (vii) of Notification No. 11/2017 - CTR dated 28.06.2017 as amended by Notification no. 31/2017- Central Tax (Rate) dated 13.10.2017, attracting GST @ 5%.

Held:  Central Government means the President and the officers subordinate to him while exercising the executive powers of the Union vested in the President and in the name of the President - In the subject case, in respect of the impugned tender 'for earthwork in embankment, cutting and bridge approaches and construction of minor bridges and RUBs in the section between Beed to Parli' the offer of the applicant has been accepted by the Central Railway Department vide Letter Of Acceptance dated 25/26th September, 2017, by Shri V.K. Agrawal, Chief Engineer (Construction) Central for an on behalf of the President of India - Therefore, CR Department can be termed as Central Government - Hence, in the subject case, the applicant is making the impugned supply to Central Government - Held that applicant is supplying Composite supply of works contract as defined in clause (119) of section 2 of the Act, 2017, involving predominantly earth work (that is, constituting more than 75 per cent, of the value of the works contract) and such supply is being provided to the Central Government, i.e. Central railways - Therefore, the impugned supply of the applicant is covered under the provisions of Sr. No. 3 (vii) of Notification No. 11/2017 - CTR dated 20.06.2017 as amended from time to time - GST rate applicable to the applicant is 5%: AAR

- Application disposed of: AAR

2022-TIOL-484-HC-KERALA-ST

Nattakam Service Coopertive Bank Ltd Vs Asstt. CCT & CE

ST - Orders rejecting applications for rectification of mistakes filed under section 74 of the Finance Act, 1994 have been assailed in this writ petition - Main grounds of challenge are that the impugned orders failed to consider the binding judgments of the jurisdictional High Courts and were issued without granting an opportunity of hearing.

Held: Though normally, the limitation period for filing rectification petition would have expired by 18-12-2020, due to the onset of the COVID-19 pandemic, the Supreme Court extended the period of limitation in respect of all judicial and quasi-judicial proceedings from 15-03-2020 till 28-02-2022, [ Cognizance for Extension of Limitation = 2022-TIOL-04-SC-MISC-LB ] - In view of the binding precedent, applications for rectification filed by the petitioner is, therefore, within the period of limitation - In the applications filed by the petitioner seeking rectification, a specific opportunity of hearing was sought - In the instant case, the provisions of the statute has incorporated a specific clause that compels the grant of an opportunity of hearing only when the order in rectification enhances the liability of the assessee or when refund is reduced - Since the statute has incorporated specific instances when there is a mandatory requirement of providing an opportunity of hearing, the legislative intention is clear that in other instances an opportunity of hearing is not required to be granted - However when the assessee sought for grant of an opportunity of hearing and the same has not been specifically denied by the assessing officer, it was incumbent upon the officer to grant an opportunity of hearing to the petitioner - Respondents have no case that such an opportunity was refused by any order in writing and intimated to the petitioner - Orders are set aside and first respondent is directed to grant an opportunity of hearing to the petitioner as expeditiously as possible, within a period of three months - Petition allowed: High Court [para 7, 12, 13, 14]

- Petition allowed: KERALA HIGH COURT

2022-TIOL-286-CESTAT-AHM

SKF India Ltd Vs CCE

CX - Appellants are engaged in manufacture of ball and roller bearing - These bearings are ultimately used by Railways or in generation of wind energy or for other purposes - As regards the bearings used for wind energy, appellants have availed the benefit of exemption provided under Notfn 6/2006-CE - The investigation was conducted and thereafter SCNs were issued for period 2009-10 to 2013-14 on the ground that appellants and M/s. SKF India Limited are related persons, excise duty is payable on priced at which M/s. SKF India Limited has sold the goods to the ultimate customers and appellants are not entitled to the benefit of exemption under Notfn 6/2006-CE - As both the issues which forms the basis of demand in impugned orders have been decided by Tribunal, therefore appellant and SKF India Limited cannot be treated as related parties - The transaction value between the appellants and SKF India Limited is correct value for the purpose of assessment - Appellant is entitled for benefit of exemption Notfn No. 6/2006-CE as claimed for the clearances made for generating electricity for wind mills - As the issue is no more res-integra, no merits found in impugned orders - Accordingly, the impugned orders are set-aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2022-TIOL-285-CESTAT-DEL

Callmate India Pvt Ltd Vs CC

Cus - The appellant is an importer/trader having IEC number - They filed Bill of Entry through their CHA declaring the goods to be conversion for telecommunication, travel charger for mobile phone-unbranded and universal pouches for mobile phone (unbranded) - On examination, it was found that there is mismatch with regard to quantity and also contained branded goods being Nokia Chargers - Some undeclared travel chargers, AC adaptors were also found - It is an admitted fact that the Shipper/Exporter M/s Pama and Company UK, inadvertently packed some other goods including branded Nokia Mobiles which were not ordered by appellant - There is no case of deliberate mis-declaration made out on the part of appellant - The Bill of Entry had been filed as per the packing list and Bill of Lading - Further, the Shipper/Exporter have accepted their mistake, there being error at the time of packing the goods at their end - This cogent explanation has not been found to be untrue - Appellant had already been suffered financial loss at the end paid for consignment to the Shipper - Penalty imposed under Section 112(a) of the Act is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-284-CESTAT-DEL

Scot Innovations Wires And Cables Pvt Ltd Vs CCGST

CX - ROM - There is an error apparent on the face of record - Accordingly, para No. 12 to 15 of the final order dated 01.09.2020 shall stand deleted, and shall be substituted - Admittedly, appellant have manufactured dutiable finished goods, which have been cleared without payment of duty under exemption Notfn 12/2012-CE to Mega Power Project awarded to a developer 'Larson & Toubro' through tariff based competitive bidding - Accordingly, in view of Rule 6(6)(vii), the provision of sub-rule (1), (2), (3) and (4) of Rule 6 are not applicable - Hence, appellant have rightly taken cenvat credit - Once it is held that the appellant has rightly taken cenvat credit and same is lying in their books un-utilised as on 30.06.2017, when provisions of CGST Act was implemented w.e.f. 01.07.2017, and thus they are eligible to refund of un-utilised credit in terms of transitional provision under Section 142(2) and (6) of CGST Act - Adjudicating Authority is directed to disburse the amount with interest as per rules within a period of 60 days: CESTAT

- Misc application allowed: DELHI CESTAT

2022-TIOL-283-CESTAT-BANG

Medgenome Labs Ltd Vs CCT  

ST - The issue to be decided is, whether the service provided by appellant qualifies as export of service - Appellant-M/s. MedGenome Labs Limited is a service provider and MedGenome Inc., USA is service recipient - The service which is provided by appellant to their foreign client is analysis report of samples and not any goods - The collection of samples, analysis thereon is conducted by appellant in India - Undisputedly, appellant is not receiving any goods from their foreign client but conducting the tests - The entire emphasis of Revenue to hold that appellant's activity does not fall under export of service viz. that the appellant are providing services in respect of goods i.e. samples - The samples are blood and tissue extracted from human body - Appellant have neither purchased said goods nor is saleable - They paid the cost only for service for extraction of samples - Therefore, sample cannot be treated as saleable goods - For this reason, condition of Rule 4 is not satisfied - Place of provision of service is clearly the location of recipient of service, which is country of appellant's clients - The service is not specified in Section 66 of Finance Act - There is no dispute that the payment of such service has been received by appellant as a service provider in convertible foreign exchange - Appellant have clearly satisfied the conditions required for treating the service as export of service - Therefore, appellant's service, being export of service, cannot be chargeable to service tax - Since the appeal is decided on its merits itself, Tribunal need not go into the issue of calculation of demand for which Revenue has filed the appeal: CESTAT

- Assessee's appeal allowed: BANGALORE CESTAT