I-T - Late fee levied u/s 234E for period prior to 01.06.2015 should be deleted as clause (c) of section 200A(1), as substituted by Finance Act, 2015, is prospective in nature : ITAT

I-T - Expenses incurred for defending directors in criminal litigations are admissible expenses provided they are incurred in order to protect business interest of assessee: ITAT

I-T - Where AO takes one plausible view from several plausible views reasonably possible, assessment cannot be held erroneous/prejudicial to interest of revenue :ITAT

I-T - Where AO takes one plausible view from several plausible views reasonably possible, assessment cannot be held erroneous/prejudicial to interest of revenue : ITAT

I-T - Depreciation for Andhra Project and Earth-work Project is rightly allowed as maintenance work and labour work of these projects involve use of plant and machinery : ITAT

I-T - In relation to revisional jurisdiction, period of limitation begins to run from date of assessment order : ITAT

I-T- In absence of any defect pointed out in books maintained, disallowance of raw material consumed is to be deleted: ITAT

2022-TIOL-442-ITAT-MUM

Majestic Infracon Pvt Ltd Vs ACIT

Whether expenses incurred for defending directors and their relatives in criminal litigations are admissible expenses provided they are incurred in order to protect business interest of assessee - YES: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-441-ITAT-DEL

Gurbakshish Singh Batra Vs Pr.CIT

Whether where AO takes one plausible view from several plausible views reasonably possible, assessment cannot be held erroneous/prejudicial to interest of revenue – YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-440-ITAT-KOL

Goodpoint Stockist Pvt Ltd Vs Pr.CIT

Whether where AO takes one plausible view from several plausible views reasonably possible, assessment cannot be held erroneous/prejudicial to interest of revenue – YES: ITAT

- Assessee's appeal allowed: KOLKATA ITAT

2022-TIOL-439-ITAT-JAIPUR

JR Industries Vs Pr.CIT

Whether if appeal against assessment order passed by AO is filed by assesssee and is pending before CIT (A), even then PCIT has jurisdiction u/s 263 – YES: ITAT

- Assessee's appeals dismissed: JAIPUR ITAT

2022-TIOL-438-ITAT-JAIPUR

Hotel Agarwal Vs ITO

Whether in absence of any defect pointed out in books of accounts maintained and considering decrease in profit due to stiff competition in market, disallowance of raw material consumed is to be deleted - YES : ITAT

- Assessee's appeal partly allowed: JAIPUR ITAT

GST - ITC fraud is less than Rs.5 crores - Bailable offence - Applicant has carved out a case for grant of bail: HC

GST - Petitioner appears to be interested in dragging on proceeding; not open to now seek for quashing of Form GST DRC-16: HC

GST - Petitioners contention that a new case has been made out in remand proceedings is without basis inasmuch as the so-called new proposals are covered by the earlier ones and are interconnected: HC

GST - Transmitting fake ITC of Rs.45 crores - No right accrues to the appellants to seek default bail u/s 167(2) of CrPC: HC

Cus - Even if rate of VAT/Sales Tax was nil, the refund under Notfn No. 102/007-Cus, would be admissible: CESTAT

Cus - In case, appellant has not paid royalty to foreign supplier, there is no question of including the same in transaction value: CESTAT

ST - In absence of evidence that amount received from Nagar Palika for construction services included supply of materials or deemed supply of materials, appellant is not entitled to abatement of 67% from gross receipts from Nagar Palika: CESTAT

CX - Appellant is entitled to refund of accumulated balance of credit on education cess and secondary and higher education cess, decision to contrary taken by Commissioner (A) cannot be sustained: CESTAT

CX - As the dispute relating to rebate has been subjudice before one appellate forum or the other, passing of adjudication orders and appellate orders pursuant to protective SCNs is ab-initio void in eyes of law: CESTAT

2022-TIOL-638-HC-AHM-GST

Vimal Yashwantgiri Goswami Vs State of Gujarat

GST - ITC fraud - It is revealed that the alleged total tax evasion of the applicant's Company Heugo Metal is Rs.4,51,05,130/- which is less than 5 crores - It is not disputed by the department that if the tax evasion of the applicant is less than Rs.5 crores, then it will be a bailable offence as per the provisions of Section 132(1)(i) read with Sections 132(4) and 132(5) of the Gujarat GST Act and the Central GST Act, 2017 - Applicant has, therefore, carved out his case for grant of bail under the provision of section 438 of the Cr.P.C.- Applicant is ordered to be released on bail on his executing a personal bond of rupees 10,000/- with one surety and on conditions as detailed - Application is allowed in the aforesaid terms: High Court [para 6, 8] 

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-637-HC-MAD-GST

Tvl G Sankar Timber Depot Vs State Tax Officer

GST -  Form GST DRC-16 merely attaches immovable properties - There is no attachment of any bank accounts - The petitioner appears to be interested in dragging on the proceeding though the petitioner appears to be in arrears of huge amount of tax -Since the matter has been remitted back, it is not open for the petitioner to now seek for quashing of the Form GST DRC-16 - Petitioner should participate in the proceedings before the respondent in terms of the notice dated 14.02.2022 - Respondent is directed to proceed further in terms of notice dated 14.02.2022 and bring a closure to the issue one way or the other in terms of the order of the single Judge as affirmed by the Division Bench of this Court, within a period of 3 months  - Writ petition stands disposed of: High Court [para 7, 8]

- Petition disposed of: MADRAS HIGH COURT

2022-TIOL-636-HC-MAD-GST

Sadhurmugan Traders Vs State Tax Officer

GST - Petitioner submits that in the remand proceedings, the respondent Revenue cannot go beyond the scope of the original notice dated 20.12.2019 - Counsel for Revenue submits that the proposals are not new proposals inasmuch as only further explanation has been called from the petitioner in respect of the earlier six proposals; that the petitioner should submit to the jurisdiction of the respondent.  Held:  The petitioner has to answer the proposals contained in the show cause notice dated 20.12.2019, content of which has been incorporated in the impugned show cause notice dated 07.01.2022 - The so-called new proposals appears to be prima facie covered by the first six proposals in the show cause notice, dated 20.12.2019; that they are inter connected and, therefore, Bench does not find any merit in challenge to the impugned show cause notice by the petitioner - Petitioner is directed to file a detailed reply and respondent shall consider the same and pass appropriate orders within a period of eight weeks - Petition is disposed of: High Court [para 6]  - Petition disposed of: MADRAS HIGH COURT

2022-TIOL-635-HC-CHHATTISGARH-GST

Paritosh Kumar Singh Alias Diwakar Choudhary Vs State of Chhattisgarh

GST - Appellants have allegedly created several fictitious and physically non-existent trading company firms in Chhattisgarh, Jharkhand, Madhya Pradesh, West Bengal and Maharashtra, got them registered in GSTN portal online using identity credential of several persons using forged PAN and issued fake bills to transmit fake Input Tax Credit (ITC) to several other traders - On the basis of information gathered, the appellants No.1 & 2 were arrested for the offence under Section 132(1)(b) & (c) of the Act, 2017 - Appellants/writ petitioners filed an application under Section 167(2) of CrPC for granting them default bail as despite lapse of 60 days from the date of their judicial custody, no charge sheet was filed by the respondent/GST authority against them -  Said application was rejected by the Chief Judicial Magistrate, Raipur which was subsequently affirmed by the revisional Court and the writ petition filed against the said order was also dismissed by the Single Judge - Hence, the present appeal.

Held:  It is not in dispute that the accused is entitled to an indefeasible right of default bail or statutory bail if the accused is prepared to furnish bail in case the charge sheet being not filed in the Court within 90 days of custody in cases punishable with death, life imprisonment, and imprisonment not less than 10 years, and after 60 days of custody for any other offence - True it is that there is no FIR lodged by the GST authority and the Magistrate has not taken cognizance of the offence on his own but the cognizance has been taken on the complaint filed by the GST authority/respondent No.2 along with the list of witnesses and relevant documents -   Act of 2017 has been enacted for levy and collection of tax on intra-State supply of goods or services or both by the Central Government and for matters connected therewith or incidental thereto - It is a special Act for economic offences - Court is of the opinion that though the complaint filed by respondent No.2 cannot be said to have been filed under Section 173 of CrPC but for the purpose of default bail, it can be said that respondent No.2, who is an authorized officer under the Act of 2017 to carry out investigation/enquiry, filed the complaint within the prescribed time limit which satisfies the requirement under Section 167 of CrPC and as such, no right accrues to the appellants to seek default bail under Section 167(2) of CrPC - Court finds no illegality or infirmity in the impugned judgment of the Single Judge - Writ Appeal dismissed: High Court [para 9, 12, 13, 16]

- Appeal dismissed: CHHATTISGARH HIGH COURT

2022-TIOL-634-HC-AHM-VAT

Mahesh Electronics Vs State of Gujarat

In writ, the High Court observes that the assessee was unable to benefit under the amnesty scheme and was also unable to avail appellate remedy. As the assessee is left without remedy, the order in challenge stands quashed, with directions to the VAT Tribunal to restore and hear the appeal without insisting on pre-deposit, since a sum of about Rs 30 lakhs is already paid by the assessee.

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-367-CESTAT-ALL

Narendra Road Lines Pvt Ltd Vs CC

ST - Appellant is in appeal against impugned order confirming demand of service tax under category of supply of tangible goods for use service and imposition of penalty - As the basis of issuance of SCN is contract between appellant and JMC India Ltd. and after examining the said contract, alleged demand under category of supply of tangible goods for use has been dropped by adjudicating authority and said finding of adjudicating authority has not been challenged by Department and no other contract is the basis of issuance of SCN, demand against appellant is not sustainable - Admittedly, wherein the goods transportation activity has been carried out and consignment note has been issued by appellant, the appellant is not liable to pay service tax but the service recipient is liable to pay service tax under reverse charge mechanism and it is recorded by adjudicating authority in impugned order that service recipient has discharged service liability thereof - Therefore, said allegation is not sustainable - In some of cases, appellant transported the goods by road without issuance of consignment note, said activity prior to June 2012 was not classifiable under category of services as no consignment note was issued and it is prime requirement to demand service tax under category of GTA service - Further, appellant has hired out vehicles to other GTA service providers, who have issued consignment notes to their clients - Such activity of appellant was also exempted under Notification No. 1/2009-S.T. for the period prior to 30.6.2012 and exempt under Notification No. 21/2012-S.T. for the period post July 2012 - Appellant has transferred the right to use vehicle to its client and such activity was not covered under supply of tangible goods service prior to June 2012 as the possession and control was also given to person who had the right to use goods and such activity amounts to deemed sales covered in negative list from July 2012 - But appellant has discharged service tax liability from period 2015-16 in such cases - No merit found in impugned order, same is set aside: CESTAT

- Appeals allowed: ALLAHABAD CESTAT

2022-TIOL-366-CESTAT-DEL

K B Singh (Contractor) Vs CC, CE & ST

ST - Appellant is engaged in providing services of "maintenance and repair" and "commercial and industrial construction" and had provided such services to Nagar Palika Garhakota and M/s M.P. Warehousing and Logistics Corporation and had not taken service tax registration nor paid service tax on the amounts received towards such services - A SCN was issued calling upon the appellant to explain why service tax should not be recovered under Section 73 of Finance Act, 1994 and why penalties should not be imposed - The issue is, whether the appellant is entitled to abatement of 67% from gross amount received for commercial construction services from the Nagar Palika as claimed - The appellant could not satisfy either Original Authority or Commissioner (Appeals) that the amount received from Nagar Palika for construction services included supply of materials or deemed supply of materials - The mere fact that commercial tax authority had assessed the appellant for commercial tax does not prove that the assessment was towards part of amount received under this contract for which it received consideration for construction services - The tender document also cannot be co-related with receipts by appellant - The work order submitted by appellant also does not indicate that appellant is supposed to supply any goods or used goods - Therefore, Commissioner (Appeals) was correct in not allowing the abatement of 67% from gross receipts from Nagar Palika - However, for the financial year 2008-2009, even if gross receipts are considered the total receipts fall below the threshold limit of Rs. 10,00,000/- during the financial year - Therefore, no service tax can be levied for the financial year 2008-2009 - The demand accordingly is set aside for this financial year - No interest or penalty can consequently to be levied - The remaining part of impugned order is upheld: CESTAT

- Appeal disposed of: DELHI CESTAT

2022-TIOL-365-CESTAT-DEL

Nu Vista Ltd Vs CCGST & CE

CX - Issue relates to rejection of claim for refund of accumulated balance of credit on education cess and secondary and higher education cess - It is not in dispute that prior to 01.03.2015 cess was leviable on manufactured goods, in addition to excise duty and appellant had availed credit under provisions of Cenvat Credit Rules on cess paid on procurement of goods and services - It is also not in dispute that by a notification, levy of cess was exempted - The closing balance of credit of cess as on 28.02.2015, therefore, could not be utilized by appellant and it was carried forward by him in central excise returns - Plea of appellant is not for adjustment of credit on cess amount against payment of excise duty or service tax, but it is for refund of credit accumulated on account of payment of tax on cess - It needs to be noted that CENVAT credit avail is a vested right as has held by Supreme Court in Eicher Motors 2002-TIOL-149-SC-CX-LB and Samtel India 2003-TIOL-40-SC-CX - Appellant is, therefore, clearly entitled to refund of balance amount of credit of cess and the decision to the contrary taken by Commissioner (Appeals) cannot be sustained - The impugned order is, therefore, set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-364-CESTAT-DEL

RSWM Ltd Vs CCGST

CX - The issue involved is, whether the adjudicating authority can adjust refund/rebate claim sanctioned, against Government dues - Admittedly, the dispute with regard to rebate totalling Rs. 59,16,907 was sub judice before Rajasthan High Court on the date of adjustment vide O-I-O - Said order is patently illegal and in violation of instructions of Board's Circular No. 13/92-CX-6 - The Tribunal in its precedent judgement in the case of Voltas Ltd. has held that Section 11 of Central Excise Act, 1944 can be invoked only when the demand proposed to be adjusted have reached finality - Similar view was taken by another Division Bench in Nirmal Products 2017-TIOL-2946-CESTAT-DEL - As the dispute relating to rebate for the amount of Rs. 59,16,907/- has been sub judice before one appellate forum or the other and passing of adjudication orders and appellate orders pursuant to protective SCNs is ab-initio void in the eyes of law - Such adjudication and appellate orders are declared to be no nest under law - Impugned order is set aside - The Adjudicating Authority is directed to disburse the sanctioned rebate amount with interest under Section 11BB ibid within a period of 30 days: CESTAT

- Appeals allowed: DELHI CESTAT

2022-TIOL-363-CESTAT-DEL

Pr.CC Vs Omya And Company

Cus - The issue arises is, whether Commissioner (Appeals) has rightly allowed the refund of balance SAD, paid at the time of import under the fact that such goods were re-sold and on such sale, the rate of VAT/Sales Tax was nil - The ground taken in Revenue's appeal is that refund of SAD is available only on payment of appropriate VAT/sales tax on re-sale of goods - There is no merits in grounds of appeal - SAD is applicable at the time of import by way of an equitable levy in lieu of sales tax, so as to protect the domestic industry - Further, the Customs Tariff Act, 1975 itself provides for refund of SAD on re-sale of goods - The mechanism of refund has been provided vide Notification No. 102/2007-Cus, which provides that one of the conditions for refund is that the goods must be re-sold and appropriate VAT/Sales Tax should have been paid - The Tribunal in precedent ruling of the Gazal Overseas 2015-TIOL-2454-CESTAT-DEL has held that the refund of SAD is available even if the rate of VAT/Sales Tax is lower than the rate of SAD or nil - Accordingly, there is no error in the impugned order, same is upheld: CESTAT

- Appeal dismissed: DELHI CESTAT

2022-TIOL-362-CESTAT-MAD

Doosan Bobcat India Pvt Ltd Vs CC

Cus - The issue arises is, whether the amount in nature of payment of royalty can be included in transaction value and whether it is a condition of sale - There is no agreement between appellant or foreign supplier - It is then difficult to understand whether the royalty is a condition for sale of imported goods - Appellant contends that they have made provision for royalty but they have not actually paid any amount and that the amount was reversed in year 2014-15 - The appellant has produced financial statements for respective years - They have also furnished Chartered Accountant's certificate - Besides these, entries in ledger/books of accounts have to be examined - Matter remanded to adjudicating authority who shall look into the aspect whether appellant has paid royalty to foreign supplier - In case, appellant has not paid such amount, there is no question of including the same in transaction value: CESTAT

- Matter remanded: CHENNAI CESTAT