2022-TIOL-420-ITAT-MUM

DCIT Vs Kotak Mahindra Bank Ltd

Whether rule 8D is prospective in operation and cannot be applied to any AY prior to AY 2008-09 - YES : ITAT

- Revenue's appeal dismissed/Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-419-ITAT-MUM

Arihant Universal Realty Pvt Ltd Vs DCIT

Whether concluded assessment can not be disturbed in absence of any incriminating material found during search - YES : ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-418-ITAT-MUM

Anjan Shivraju Prakash Vs ITO

Whether proceeds from sale of parking spaces is to be treated as STCG where such spaces are capable of being sold independently of residential flats - YES: ITAT

- Assessee's appeal partly allowed: MUMBAI ITAT

2022-TIOL-417-ITAT-DEL

Desh Bhushan Jain Vs ACIT

Whether it is fit case for remand where assessee claims expenses on account of electricity, repair & maintenance & staff salary, but is required to furnish evidence to establish that these were incurred in furtherance of business - YES: ITAT

- Assessee's appeal partly allowed: DELHI ITAT

2022-TIOL-416-ITAT-BANG

Karnataka Bank Ltd Vs DCIT

Whether in terms of proviso to cl. (vii) of section 36, the deduction on account of the actual write off of bad debts would be limited to excess of the amount written off over the amount of the provision which had already been allowed under cl. (viia) of section and hence contention that deduction under both clause would amount to double deduction is baseless - YES: ITAT Whether charges paid to National Financial Switch and Cash Tree Consortium for use of ATM of other banks by its customers attracts liability for tax deduction at source, whether failure to do so attracts the disallowance under section 40(a)(ia) of the Act - NO: ITAT

- Assessee's appeal allowed/Revenue's appeal partly allowed: BANGALORE ITAT

ST - Refund - Clause 3(g) of Notification No. 41/2012-ST and the Explanation thereto is ultra vires Section 11B of the CEA, 1944: HC

GST - What is the meaning of ‘earthwork', asks applicant - Said question does not fall under any of the clauses to s.97(2) of the CGST Act, hence, is not answered: AAR

GST - Strengthening of Headquarters building of TANGEDCO is definitely not an activity in relation to ‘Generation and Distribution of Electricity'; taxable @18%: AAAR

GST - STP treated water is not ‘purified water'; will be eligible for exemption in terms of entry at Sl. No. 99 of notification no. 02/2017-CTR: AAAR

CX - As Spent Acid emerges during manufacturing of final product is neither exempted good nor having nil rate of duty, provisions of Rule 6(3) of CCR, 2004 are not applicable: CESTAT

Cus - Appellants are entitled for conversion of free shipping bills to shipping bills under advance authorisation and for consequential effect such as issuance of NOC for producing before DGFT: CESTAT

2022-TIOL-549-HC-MAD-GST

Numinous Impex India Pvt Ltd Vs CC

GST - Point for consideration is whether exports made without payment of IGST under bond on which duty drawback is claimed under the provisions of the Customs and Central Excise Duties and Service Tax Drawback Rules, 2017, would entitle such an exporter, the benefit of refund of input tax credit under sub-Section (3) of Rule 16 of the IGST Act 2017 r/w 54 of the CGST Act, 2017 read with the Rules made thereunder. Held: Respondents are directed to scrutinize the refund claims filed by the petitioner under Section 16(3) of the Integrated Goods and Services Tax Act, 2017 read with Section 54 of the Central Goods and Services Tax Act, 2017 and Rule 89 of the Central Goods and Services Tax Rules, 2017 and other applicable Rules and refund the same together with applicable interest under the provisions of the respective enactments, within a period of three months - Gujarat High Court decision in Awadkrupa Plastomech Pvt. Ltd = 2020-TIOL-2238-HC-AHM-GST relied upon - Writ Petition stands allowed: High Court [para 20, 22]

- Petition allowed: MADRAS HIGH COURT

2022-TIOL-548-HC-AHM-GST

Torrent Power Ltd Vs UoI

GST - Writ applicant was successful in the first round of litigation to get a declaration from this High Court that the services provided by it are in the nature of composite supply and, therefore, in view of the provisions of clause (a) of Section 8 of the CGST Act, the tax liability thereof has to be determined by treating such composite supply as a supply of the principal supply of transmission and distribution of electricity; that if the principal supply of transmission and distribution of electricity is exempt from levy of service tax, the tax liability of the related services shall have to be determined accordingly - Further, since the judgment is now a subject matter of challenge and the Supreme Court has granted leave to appeal, the writ applicant as an abundant caution started obtaining undertaking from the consumers as regards the service tax and GST; that one of the consumers objected to this action on the part of the writ applicant and the matter was carried before the Consumer Grievance Redressal Forum, Ahmedabad which passed an order holding that it is permissible for the writ applicant to obtain such undertaking from its consumers - Matter thereafter was carried further by the very same complainant before the Ombudsman of the Gujarat Electricity Regulatory Commission and an order dated 20.12.2021 was passed taking the view that as the Electricity Act, 2003 does not provide or empower the company to obtain such undertaking, it is not permissible for the writ applicant to obtain such undertaking from the consumers - It is this order of the Ombudsman (along with the order passed in the matter of revision application) that is the subject matter of challenge. Held: Notice be issued to the respondents returnable on 06.07.2022 - Ad-interim order passed in terms of paragraph 27(C): High Court [para 8, 9]

- Notice issued: GUJARAT HIGH COURT

2022-TIOL-547-HC-MUM-GST

Ambica Fertilizers Vs UoI

GST - Petitioner prays for a declaration that Rule 117 and Rule 120A of the Central Goods and Services Tax Rules, 2017 are ultra vires the Central Goods and Services Tax Act, 2017 and to be struck down - Petitioner also seeks writ of mandamus and/or any other appropriate writ, order or direction to direct the respondents to allow the revision of the Form TRAN-1 and Form TRAN-2 and to allow the petitioner to take credit under section 140(3) on the invoices missed out during the initial filing. Held: It is not in dispute that the challenge to the vires of section 140 and Rule 117 is negat ived by this Court in the case of Nelco Limited - 2020-TIOL-641-HC-MUM-GST - Interest of justice would be served if the petitioner is allowed to correct Form TRAN-1 in Writ Petition No. 1609/2019 and to file Form TRAN-2 without prejudice to the rights and contentions of both the parties - The respondents shall consider the issue whether the Form TRAN-1 and other forms that would be filed/corrected by the petitioner can be entertained in accordance with the provisions of section 140 of the Central Goods and Services Tax Act, 2017 and Rule 117 (1) of the Central Goods and Services Tax Rules, 2017 or not - Authority shall also decide the effect of the judgments of this Court in the case of Heritage Lifestyles and Developers and Private Limited (supra) and also Nelco Limited (supra) - The said authority shall take appropriate decision within four weeks - Writ petitions are disposed of in aforesaid terms: High Court [para 10, 12, 13, 14]

- Petitions disposed of: BOMBAY HIGH COURT

2022-TIOL-46-AAR-GST

Mahalakshmi Bt Patil Honai Construction (JV)

GST - Applicant is undertaking construction of Jeur Tunnel under (Linking Ujani Reservoir to Sina, Kolegaon reservoir) Krishna Marathwada Irrigation Project - Work order consists of Earth Work such as Excavation for Tunnel, removing of excavated stuff, fabrication, transporting, providing steel support, rock bolting, reinforcement, fixing of chain link, cement concerting, providing drainage arrangement etc. wherein total earth work is approximately 91% and construction work is around 9% wherein transfer of property is involved - Applicant seeks a ruling as to whether the said contract is covered under the term "Earth Work" and, therefore, covered under Sl No 3A- Chapter No. 9954 as per Notification No. 12/2017-C.T. (Rate) dated 28.06.2017, as amended by Notification No. 2/2018-C.T. (Rate) . Held: Impugned activity is a 'Composite supply of works contract' as defined in clause (119) of section 2 of the CGST Act, 2017 - Being a Composite supply of works contract, the impugned activity cannot be covered under Sr. No. 3A of notification 12/2017-CTR - Thus, the impugned activity of the applicant is covered under the Sr. No. 3 (vii) of Notification No. 11/2017-CTR dated 28.06.2017 as amended by Notification No. 31/2017 - CTR dated 13.10.2017 - With effect from 01.01.2022, the impugned services supplied by the applicant will not be covered under Sr. No. 3 (vii) of Modification No. 11/2021 - CTR - Insofar as the question as to what is the meaning of ‘earthwork' as the same does not fall under any of the clauses to Section 97 (2) of the CGST Act, therefore, is not specifically answered - Application disposed of: AAR

- Application disposed of: AAR

2022-TIOL-15-AAAR-GST

PSK Engineering Construction And Company

GST - AAR held that Rate of GST to be charged on the services provided by the applicant to TANGEDCO for carrying out retrofitting work for strengthening the NPKRR Maaligai against seismic and wind effect and modification of elevation in TNEB headquarters building at Chennai [SAC for the Construction Service is SAC 9954] is 18% as per SL.No.3(xii) of Notification 11/2017-CT(Rate); that supply of works contract services cannot be considered as that meant predominantly for use other than for commerce, industry, or any other business or professional purposes; that, therefore, service is, therefore, not covered under entry 3(vi) of notification 11/2017-CTR so as to attract GST @12% - Appeal to AAAR. Held : Condition imposed for availing concessional rate is unambiguous inasmuch as it says that the services should have been procured by the Government entity, in relation to a work entrusted to it - Strengthening of the Headquarters building of TANGEDCO is definitely not an activity 'in relation to' Generation and Distribution of Electricity' - In the case at hand, the works are undertaken by the appellant for the Headquarters of TANGEDCO Ltd, a commercial company inasmuch as TANGEDCO is involved in Generation and Distribution of Electricity against fixed Tariff - The words of the entry is clear and excludes the works supplied to Government entity, in respect of a Civil Structure or any other original works meant predominantly for commerce, industry or any other business or profession - Therefore, AAAR does not find any reason to disagree with the findings of the AAR that the supply cannot be considered as that meant predominantly for use other than commerce, industry, or any other business or professional purposes - Appeal rejected: AAAR

- Appeal rejected: AAAR

2022-TIOL-14-AAAR-GST

Rashtriya Chemicals And Fertilizers Ltd

GST - AAR held that "Treated Water" obtained from STP [classifiable under Chapter 2201] will not be eligible for exemption from GST by virtue of Sl. No. 99 of the Exemption Notification No. 02/2017- Integrated Tax (Rate) dated 28 June 2017 (as amended) and the same will be taxable at the rate of 18% in terms of the entry at the SI. No. 24 of the Schedule III to the Notification No. 01/2017-Integrated Tax (Rate) - Appeal filed. Held: It is seen that the impugned product, i.e., STP treated water, is obtained after carrying out various physical and biological processes on the sewage water - By carrying out the said physical and biological processes on the sewage water inside the Sewage Treatment Plant, the sewage water is made free from various organic and inorganic substances, such as suspended particles, grit, clays, pollutants like nitrogen, phosphorus, etc. - However, even after carrying out the said physical and biological processes, water coming out from the Sewage Treatment Plant still contains various biological contaminants such as bacteria, virus, E. coli, along with other impurities - Thus, it can be safely concluded that the resultant water is not pure due to presence of the said impurities and foreign elements - It is adequately clear that water containing anything apart from the Hydrogen and Oxygen will not be construed as pure water - It is also noteworthy that all these groups of specific water mentioned under the exclusion clause of the relevant entry are supplied in the packaged form, i.e., in the sealed container, in order to preserve their characteristics and specificity, while the same is not the case with the impugned product, i.e., STP treated water, which are supplied through pipelines without any such concerns - Thus, it is amply clear that the term "purified", mentioned under the exemption clause of the relevant entry, will definitely not include the STP treated water - Even under the erstwhile indirect tax regime, no tax, whether in the nature of Central Excise or in the nature of VAT, was leviable on the water of general purposes, hence the supply of STP treated water was not subject to any indirect tax under the erstwhile tax regimes - Held, therefore, that STP treated water will be eligible for exemption in terms of entry at Sl. No. 99 of the Exemption notification no. 02/2017-C.T.(Rate) - AAR order set aside and appeal allowed: AAAR

- Appeal allowed: AAAR

2022-TIOL-551-HC-AHM-ST

Thankys Exports Pvt Ltd Vs UoI

ST - Petition is filed seeking to strike down and declare impugned clause 3(g) of Notification No. 41/2012-ST dated 29.6.2012 along with Explanation thereto as being ultra-vires Section 83 of the Finance Act read with Section 11B of the Excise Act. Held: In the case of the writ-applicants, while the 'let export' order under the Customs Act was passed on 15.2.2013, the goods were loaded onto the ship on 19.2.2013 and the ship left India on 20.2.2013 and these dates are not disputed even by the respondents - If that be so, then the limitation for filing the refund application in respect of such export transaction will be one year from 20.2.2013 and, therefore, the refund application acknowledged on 18.2.2014 will be within the period of limitation - Explanation to clause 3(g) of the Notification 41/2012-ST states that the date of export shall be the date on which the proper officer of the Customs makes an order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act - Hence, as per the Notification, the refund claim is to be filed within one year from passing of the order permitting the clearance and loading of the goods for exportation under Section 51 of the Customs Act - Such prescription of limitation is in direct conflict with the statutory provision, i.e. Section 11B of the Excise Act, which provides for limitation to commence from the date when the ship leaves India - It is a well-established legal position that in case of conflict between the statutory provision and the delegated legislation, the former would prevail - Hence, the impugned clause 3(g) of Notification No. 41/2012-ST and the Explanation thereto which provides that the period of limitation for claiming refund will commence from the date of passing of the order permitting the clearance by the Customs officer is ultra vires Section 11B of the Excise Act which clearly provides that the period of limitation will commence from the date when the ship leaves India - Impugned orders rejecting the refund on the ground of limitation cannot be sustained - Respondents are directed to grant refund of Rs.42,47,429/- under the Finance Act along with a simple interest at the rate of 6% per annum within a period of four weeks: High Court [para 11, 13, 14, 16, 20, 21] ST - Refund - When it is not disputed that the writ-applicants had approached the authority with the refund application even within the period of limitation as stipulated under the Notification, the same ought not to have been rejected as being time-barred merely on the basis that acknowledgment of the refund application was subsequently given: High Court [para 19]

- Writ-application is disposed of: GUJARAT HIGH COURT

2022-TIOL-550-HC-MAD-CUS

S Hyder Khan Vs Addl.CC

Cus - It is the specific case of the petitioners in these writ petitions that the impugned order has been passed in gross violation of principles of natural justice, inasmuch as the statement admitting the alleged offence was retracted on 19.06.2019 within 5 days from 14.06.2019 and, therefore, the impugned order imposing penalty absolutely confiscating the imported goods is liable to be interfered. Held: This Court in the case of Jet Unipex = 2020-TIOL-1007-HC-MAD-CUS considered the scope of statements of witnesses and circumstances under which such statement can be relied - Bench is inclined to quash the impugned order dated 29.10.2020 and remit the case back to the 1st respondent to pass a speaking order (within three months) after considering paragraph No. 73 of the aforesaid decision (supra) of this Court - Writ petitions stand disposed of: High Court [para 11, 12]

- Petitions disposed of: MADRAS HIGH COURT

2022-TIOL-319-CESTAT-BANG

Bharath Timber And Construction Company Vs CC

Cus - The adjudicating authority has rejected the request of appellant for issuing NOC for purpose of EODC by DGFT on the ground that firstly, appellant has exported goods from Karwar without obtaining prior permission and secondly, appellant is not entitled for conversion of free shipping bills to advance authorisation shipping bills as appellant have not declared Advance Authorisation number on shipping bills - As regards to first issue, appellant have been writing various letters to Department for permission of export from Karwar Port against subject advance authorisation - Department has not given any response to various correspondences made by appellant - Therefore, since no response from Department, permission deemed to have been received by appellant - Accordingly, there is no objection exists for export of goods from Karwar Port - As regards the endorsement regarding advance authorisation, appellant is eligible for same in terms of Section 149 - At the time of export of goods, advance authorisations were very much in existence - Moreover, appellant have been making repeated requests to Department for export of goods from Karwar Port under aforesaid advance authorisations - There were all the documents existing at the time of export of goods - Appellant is clearly entitled for amendment in shipping bills by conversion of free shipping bills to shipping bills under advance authorisation - Appellant is entitled for conversion of free shipping bills to shipping bills under advance authorisation and for consequential effect such as issuance of NOC for producing before DGFT - Accordingly, both the impugned orders are set aside: CESTAT

- Appeals allowed: BANGALORE CESTAT

2022-TIOL-318-CESTAT-KOL

Green Valley Industries Ltd Vs CCGST & CE

CX - Appellant is in appeal against impugned order by which Commissioner (Appeals) has allowed the interest on delayed refund of excise duty for a period of 35 days, i.e., period after expiry of three months from the date of communication of order of Tribunal, till the date of refund and not from the date of making deposit as was claimed by appellant throughout adjudication as well the appellate proceedings - It is also the grievance of appellant that the interest is payable @ 12% p.a. and not @ 6% p.a. - Appellant had deposited the amounts as refunded during investigation proceedings which was later on set aside by Tribunal in part leading to captioned refund of duty - In similarly placed situation, Coordinate Bench of Tribunal in case of M/s. Parle Agro Pvt. Ltd. 2021-TIOL-306-CESTAT-ALL has passed a detailed order after analyzing various provisions in this regard - Thus, appellant is entitled to interest @ 12% from the date of deposit till the date of receipt of such refund - The lower authorities are directed to compute eligible interest and pay the same within four weeks: CESTAT

- Appeal allowed: KOLKATA CESTAT

2022-TIOL-317-CESTAT-DEL

G And G Ispat Pvt Ltd Vs CCE & C

ST - Demand with interest and penalty - A ppellant has paid service tax chargeable from them under reverse charge mechanism, on 31.10.2015, which was reflected in return filed for period 2014-15, which was filed on 21.01.2016 - Further, appellant has also informed this fact of tax having been deposited vide letter dated 21.03.2017 before Adjudicating Authority - It appeared that the Adjudicating Authority has failed to take notice of same as such representation has not been considered in adjudication order - Appellant is manufacturing and clearing dutiable goods and are entitled to take cenvat credit of service tax payable under reverse charge mechanism - Hence, situation is revenue neutral - Demand of Rs. 1,97,054/- as well as the penalty imposed under Section 78 of equal amount is set aside - So far penalty under Section 70 r/w Rule 7(C) is concerned, same is excessive and is reduced to Rs. 5,000/- - So far penalty under Section 77 is concerned, same is imposed for alleged violation of Rule 5(2) of Service Tax Rules, which provides that every assessee soon after filing of their ST-3 return for the first time shall provide a list to the Range Superintendent as regards the details of records, books of accounts maintained by them - There is no alleged violation of provisions of Sections 66B and 68 read with Rule 5(2) - Accordingly, penalty of Rs. 10,000/- under Section 77 is set aside: CESTAT

- Appeal partly allowed: DELHI CESTAT

2022-TIOL-316-CESTAT-DEL

IPF Vikram Sulphonation Ltd Vs CCGST & CE

CX - Appellant is in appeal against impugned order wherein an amount equal to 6% of value of goods cleared by them is demanded as exempted goods - The appellant is a manufacturer of Sulphonic Acid and during manufacturing of Sulphonic Acid, Spent Acid emerges - As Spent Acid is not an exempted good, therefore, provisions of Rule 6(3) of Cenvat Credit Rules, 2004 are not applicable as held by Tribunal in case of Dharamasi Morarji Chemicals Co. Ltd. 2010-TIOL-586-CESTAT-MUM - Therefore, demand against appellant is not sustainable, same is not sustainable: CESTAT

- Appeal allowed: DELHI CESTAT