I-T - Commission expenses cannot be validated based solely on e-mails exchanged between principal & agent & where scope of service is nowhere explained : HC

I-T - Immunity from penalty u/s 270AA can be refused only in cases where penalty is imposed upon allegation of mis-reporting of income: HC

I-T - Re-assessment - failure of AO to issue notice u/s 143(2), prior to finalising re-assessment order, cannot be condoned by referring to Section 292BB: HC

I-T - Re-opening of assessment beyond four-year limitation period is sustainable where Revenue omits to show there to be any failure of assessee to make full & true disclosure of necessary facts : HC

I-T - When there is no surcharge prescribed u/s 113, then question of charging any surcharge on block assessment relating to undisclosed income does not arise: HC

2022-TIOL-591-HC-DEL-IT

Jayanti Dalmia Vs DCIT

Whether the principle of right to keep silent is applicable so far in respect of criminal proceedings only - YES: HC

- Assessee's appeals dismissed: DELHI HIGH COURT

2022-TIOL-590-HC-DEL-IT

Pr.CIT Vs Consortium Nussli Comfort Net

Whether failure of the AO, in re-assessment proceedings, to issue notice u/s 143(2) of the Act, prior to finalising re-assessment order, can be condoned by referring to Section 292BB - NO: HC

- Revenue's appeal dismissed: DELHI HIGH COURT

2022-TIOL-589-HC-MUM-IT

Hanwant Manbir Singh Vs DCIT

Whether re-opening of assessment beyond four-year limitation period is sustainable where Revenue omits to show there to be any failure of assessee to make full & true disclosure of necessary facts - NO: HC

- Writ petition allowed: BOMBAY HIGH COURT

2022-TIOL-588-HC-MUM-IT

Karia Erectors Pvt Ltd Vs UoI

Whether since there is no surcharge prescribed under Section 113 of the Act, the question of charging any surcharge on the block assessment relating to undisclosed income would not arise - YES: HC

- Writ petition disposed of: BOMBAY HIGH COURT

GST - TRAN-1 - Most unfair - Different wings of the very same department have been issuing notices and summons to the appellants without taking any of the earlier proceedings to the logical end: HC

GST - Whether CERA audit can be conducted against a private entity - Too premature for the Court to give a ruling on the said issue: HC

Cus - When Commissioner fails to explained as to how termination of its temporary employee would amount to lack of adherence to Regulation 19(8) of CHALR by assessee, Tribunal is correct in setting aside the forfeiture of security deposit: HC

Cus - Since no details have been provided even in SCN to direct assessee to appear and answer, such SCN would be only adding to their agony: HC

CX - Appellant is entitled for refund claim lying unutilised in their Cenvat Credit account on closure of the factory: CESTAT

CX - When issue is interpretational in nature and there were conflicting decisions of Tribunal, it cannot be said that appellant has wilfully suppressed facts with intention to evade payment of duty : CESTAT

ST - Section 109 ibid prescribed that any amount paid in pursuance of declaration made under VCES shall not be refunded, and hence refund claim filed under said Scheme was liable for rejection: CESTAT

2022-TIOL-586-HC-KOL-GST

Ideal Unique Realtors Pvt Ltd Vs UoI

GST - TRAN-1 - Appellants /writ petitioners have challenged the jurisdiction of the 7th respondent, the Sr. Audit Officer CERA/ SSCA-FAP-4 in issuing two communications both dated 22nd March, 2021 enclosing a memo called as "spot memo" - Three earlier proceedings were commenced firstly by CGST Department, Park Street Division, Kolkata vide letter dated 15th May, 2018 for which the appellants had submitted their reply on 15th June, 2018 along with the documents called for - For the very same purpose, the Director General of Goods and Services Tax, DGGI, Kolkata, Zonal Unit had issued summons dated 11th July, 2018 for which the appellants had submitted their reply on 24th July, 2018 - Thereafter, DGGI issued notice dated 15th November, 2019 and thereafter another notice dated 18th November, 2019 was issued by the 5th respondent and summons dated 2nd January, 2020 for which the appellants have responded and submitted the requisite documents - Superintendent, Range - III, Park Street Division, CGST & CX, Kolkata South Commissionerate had issued two communications dated 22nd March, 2021 enclosing two spot memos.

Held: Question would be whether the appellants can be dealt with in such a fashion by the respondent department - Bench finds that none of the proceedings initiated by the department has been shown to have been taken to the logical end - If, according to the respondent department, there is an irregularity in the availment of credit, then appropriate proceedings under the Act should be initiated and after due opportunity to the appellants, the matter should be taken to the logical end - Such a procedure had not been adopted in the instant case and the appellants appears to have been dealt with in a most unfair manner in the sense that from the year 2018 for the very same TRAN-1 issue the appellants have repeatedly been summoned, issued notices etc. - The spot memos, which have been communicated to the appellants along with the communications dated 22nd March, 2021 is also for the very same purpose - It is not clear as to why different wings of the very same department have been issuing notices and summons to the appellants without taking any of the earlier proceedings to the logical end - On that ground, Bench is of the view that the spot memos, which have been furnished along with the communications dated 22nd March, 2021 cannot be enforced - It is appropriate for the  authority  concerned to take the proceedings to the logical end after affording an opportunity of personal hearing to the appellants -   Writ appeal is allowed to the extent indicated: High Court [para 4 to 6]

GST - Issue whether CERA audit can be conducted against a private entity as contended by the appellants is not gone into as this Court is of the view that it is too premature for the Court to give a ruling on the said issue: High Court [para 6] 

- Appeal disposed of: CALCUTTA HIGH COURT

2022-TIOL-587-HC-KERALA-VAT

Malabar Trading Company Vs State Tax Officer

Whether it is fit case for remand where assessment order was passed without considering certain evidence sought to be furnished by the assessee but which could not be produced due to COVID 19 lockdown - YES: HC

- Writ petition allowed: KERALA HIGH COURT

2022-TIOL-585-HC-MAD-VAT

North East Construction Contractors Vs Assistant Commissioner (ST)

In writ, the High Court observes there to be a mis-match in the Input Tax Credit being claimed by the assessee. Hence the Court remands the matter for passing a fresh order after re-examination of the issue at hand.

- Writ petition disposed of: MADRAS HIGH COURT

2022-TIOL-596-HC-MUM-CUS

Pr.CC Vs Om Freight Forwarders Pvt Ltd

Cus - Assessee is a Customs House Agent - There were two cases reported against them and in both the cases, inquiry proceedings were initiated by Inquiry Officer and proceedings were closed holding that the articles of charges not proved - Notwithstanding this, the Commissioner has held that assessee is responsible for lack of adherence to Regulation 19(8) of Customs House Agents Licensing Regulations, 2004 - The Commissioner is unhappy with supervision of assessee over its employees - There is a contradiction in as much as he first says that Inquiry Officer after analysis of charges has concluded that there is no contravention of Regulations 13(d) and 13(n) ibid, but in the next paragraph, he states that there was lack of adherence to Regulation 19(8) ibid by assessee - Assessee submitted that no SCN was issued to them under CHALR calling upon to show cause why they should not be held responsible for lack of adherence to Regulation 19(8) ibid - Revenue could not dispute this fact because if a SCN had been issued, it would have been annexed to the Appeal Memo file - Moreover, Commissioner has not explained as to how termination of its temporary employee would amount to lack of adherence to Regulation 19(8) ibid by assessee - No justifiable reason found to interfere in Order of Tribunal - Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, no substantial question of law arises - The appeal is devoid of merits: HC

- Appeal dismissed: BOMBAY HIGH COURT

2022-TIOL-595-HC-MUM-CUS

CC Vs Navbharat Enterprises Ltd

Cus - Assessee had imported various permissible inputs under 'duty exemption entitlement certificate' scheme in Foreign Trade Policy for which it had license - According to revenue, it was later determined that license-holder had failed to discharge its obligation to evidence that credit of duty under Rule 56A/57A of erstwhile Central Excise Rules, 1944, on inputs procured locally or otherwise, for use in manufacture of export goods had not been availed - Revenue proceeded against assessee for non-compliance with condition No. (v)(a) of Notification No. 203/92-Cus. - It is assessee's case that they never received the SCN and hence, could not even reply - Since no details have been provided even in SCN to direct assessee to appear and answer such SCN would be only adding to their agony - It would not be even possible to answer SCN without any particulars mentioned therein - Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, the question as pressed raises no substantial question of law - The appeal is devoid of merits: HC

- Appeal dismissed: BOMBAY HIGH COURT

2022-TIOL-340-CESTAT-ALL

Usha Martin Ltd Vs CC

CX - The appellant was engaged in manufacturing activity of TMT Bars - They were availing cenvat credit on input, input services and paying duty by utilising Cenvat Credit - They closed the factory and stopped the production of finished goods - Consequently, appellant applied for refund claim of unutilised Cenvat Credit lying in their Cenvat Credit account as there is no provision in Central Excise Rules made thereunder for grant of refund for unutilised Cenvat Credit - The jurisdictional High Court has already held that on closure of factory, appellant is entitled for refund claim lying unutilised in their Cenvat Credit Account - In case of Modipon Ltd., although the said order has been challenged by Revenue before Apex Court but no stay has been granted by Apex Court - In that circumstances, relying on decision in case of Space Telelink Ltd. 2017-TIOL-2998-HC-DEL-CX , Delhi High Court has held that unless and until the order is set aside the sanctity of the order remains - As order of High Court of Allahabad in case of Modipon Ltd. has not been set aside till yet - Therefore, relying on the decision in case of Modipon Ltd. , it is held that appellant is entitled for refund claim lying unutilised in their Cenvat Credit account on closure of the factory - Impugned order is set aside: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2022-TIOL-339-CESTAT-MAD

Tidc India Ltd Vs CGST & CE

CX - The issue arises for consideration is, whether the appellants are eligible to avail cenvat credit on outdoor catering services for period from March 2016 to June 2017 - The issue stands covered by the decision of Larger Bench of Tribunal in Wipro Ltd. 2018-TIOL-3256-CESTAT-BANG-LB wherein it is held that post-01.04.2011, credit on outdoor catering services is ineligible - Following the same, appellants do not have case on merits - Appellant has argued on the ground of limitation also - Issue is interpretational in nature and there were conflicting decisions of different Benches of Tribunal after which the matter was referred to Larger Bench - It cannot be said that appellant has wilfully suppressed facts with intention to evade payment of duty so as to invoke extended period - The entire demand is raised by invoking extended period which cannot sustain - Impugned order is set aside on the ground of limitation: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-338-CESTAT-BANG

Mindtree Ltd Vs CST

ST - The appellant is engaged in provision of IT related services and have obtained registration for providing 'Management, Maintenance or Repair Service and Information Technology Software Service' - A SCN was issued and confirmed by O-I-O - The Commissioner confirmed both the demands along with penalty and interest - As regards the first issue of demand on 'software maintenance services', Karnataka High Court has settled the issue in favour of appellants in case of M/s. IBM (India) Pvt. Ltd. 2021-TIOL-364-HC-KAR-ST following the Madras High Court decision in case of M/s. Kasturi and Sons 2011-TIOL-240-HC-MAD-ST - In view of the same, issue is no longer res integra and it is held that the appellants are not required to pay service tax on software maintenance services during the period July 9, 2004 to November 30, 2005 - As regards the second issue of availment of CENVAT credit, appellants have utilised Cenvat credit up to 20% of tax payable during the period June 2007 to March 2008 - During that period, tax of Rs. 135.16 lakhs was to be paid without utilising Cenvat credit - However, they have paid the same after 1.4.2008 by utilising balance of credit of 80% from the year 2007-2008 - Vide Circular F. No. 137/72/2008-CX , it is clarified that such credit will not lapse and can be utilised later - Appellants are entitled to utilise the balance 80% of credit availed before 1.4.2008 after 1.4.2008 - Having come to this conclusion, appellant's action in paying service tax which fell due during 2007-2008 after 1.4.2008 is to be seen as a delayed payment - Accordingly, appellants are required to pay interest at the applicable rate in terms of Section 75 of Finance Act, 1994 - The appellants are well established service tax registrants and therefore, lapse of non-payment of service tax during the relevant period cannot be taken lightly - Though appellants are entitled to utilise the balance credit after 1.4.2008, they will be liable to pay penalty under Section 76 of Finance Act, 1994, as applicable during the relevant period: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

2022-TIOL-337-CESTAT-BANG

Highness Finance Pvt Ltd Vs CCT & CE

ST - The only issue that arises for consideration is, whether the authorities are correct in rejecting refund claim of assessee made under Section 11B of Central Excise Act, 1944 - The claim of appellant is not a refund under Section 11B ibid simplicitor, assessee was tempted by Scheme introduced whereby, in compliance with payment of taxes, certain benefits would pass on to such taxpayers - Hence, the decisions/orders relied on by assessee which are mainly on Section 11B ibid per se are not applicable - By reading of Section 109 of Voluntary Compliance encouragement Scheme, 2013, it is clear that no amount paid by an assessee in terms of said Scheme shall be refunded under any circumstances, which is quite obvious since, the Scheme would also pass on some benefits to taxpayer like reduction in interest or waiver of penalty - Clearly, there was no compulsion on any of assessees and hence, it was a voluntary option exercised by the assessee to opt for Scheme perhaps because of other benefits that would ensue - Having opted, the rules and regulations prescribed thereunder alone are very much applicable and, because of it being a special enactment, same excludes the applicability of general law governing the refund provisions - Support found by an order in case of Hella India Automotive Pvt. Ltd. 2017-TIOL-2847-CESTAT-MUM - In view of the same, no reason found to interfere with the rejection order: CESTAT

- Appeal dismissed: BANGALORE CESTAT