I-T - Addition u/s 56(2)(vii)(b) can be made as assessee fails to submit records of investments & nor valuation certificate of shares is submitted: ITAT

I-T - Provisions made by insurance company for IBNER and IBNR claims on scientific basis and also certified by valuer, satisfies entire ingredient for its allowance u/s 37(1): ITAT

I-T - When AO revises penalty imposed u/s 271(1)(c), then whatever order passed prior to such revised order, becomes infructuous : ITAT

I-T - Making any claim which is subsequently disallowed, is per se insufficient to infer furnishing inaccurate particulars of income to impose penalty u/s 271(1)(c) : ITAT

2022-TIOL-450-ITAT-DEL

Wuhan Research Institute of Post and Telecommunication India Vs Addl.CIT

Whether it is fit case for remand where the provisions of Section 44DA have been invoked without first considering the assessee's claims regarding exemption on training fee income - YES: ITAT

- Assessee's appeal partly allowed: DELHI ITAT

2022-TIOL-449-ITAT-DEL

ACIT Vs VSF Realtors Pvt Ltd

Whether section 2(22)(e) is not to apply as transaction involved is not in the nature of loan from M/s. Samara India Private Limited to assessee - YES : ITAT

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-448-ITAT-DEL

Harsh International Industries Pvt Ltd Vs DCIT

Whether making any claim which is subsequently disallowed, is per se sufficient to infer furnishing inaccurate particulars of income so as to impose penalty u/s 271(1)(c) - NO: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-447-ITAT-DEL

GTV Tech Sez Pvt Ltd Vs ITO

Whether it is fit case for remand where assesment order is passed without appearance of assessee for hearing, on account of non receipt of SCN - YES: ITAT

- Case remanded: DELHI ITAT

2022-TIOL-446-ITAT-DEL

Dalmia Bharat Sugar And Industries Ltd Vs DCIT

Whether a legal ground which goes to the root of the matter can be taken at any stage of the proceedings, even in cross-objection - YES: ITAT Whether period of limitation qua to assessment years to be assessed u/s 153C is to be reckoned from the date of handling over of the documents by the AO of searched person to the AO who has jurisdiction of 153C - YES: ITAT

- Revenue's appeal dismissed/Assessee's CO partly allowed: DELHI ITAT

ST - SVLDRS, 2019 - Whether exceptions can be made so as to allow petitioner to avail benefits even after the deadline fixed had been crossed - Officer to pass order: HC

GST - Endorsement in Orders are spread right across the pages on which they are transcribed making it difficult to read - LHS or RHS or foot of the order for carrying endorsement be explored: HC

GST - Fraudulent credit - Reversal of ITC for depositing part amount of Rs.2.70 crores as directed by Trial Court cannot be said to be illegal or unwarranted, warranting cancellation of the bail granted: HC

GST - Suspended for carrying out rectification u/s 161 - Whether appeal should have been filed u/s 107 - Departmental proceeding to be completed within four weeks else order to become inoperative: HC

GST - Whether petitioner  wilfully filed GSTR-3B on a later date than due date to accommodate ITC is a matter of adjudication - No case for interference made out: HC

ST - When issue involved is of interpretation, bona fides of appellant to hold a different opinion cannot be suspected and thus extended period cannot be invoked: CESTAT

ST - Since there are material contradictions in order of Adjudicating Authority and the same also have been repeated in impugned orders, matter is remanded : CESTAT

CX - In absence of specific disputes regarding contents of certificates by Revenue, payment of duty thereof stands proved and hence, rejection cannot be made only for want of proof regarding payment of duty: CESTAT

CX - When the details asked for in declaration is otherwise available with department, mere non-filing of declaration cannot be the reason that appellant's option for proportionate reversal is not available: CESTAT

2022-TIOL-642-HC-DEL-GST

NTT India Pvt Ltd Vs UoI

GST - Principal grievance of the petitioner is that via the impugned order dated 24.07.2021, respondent no.4 has raised a demand concerning tax amounting to Rs. 18.06 crores along with interest and 100% penalty on account of the purported difference between the contents of two returns i.e., GSTR-1 and GSTR-3B - Petitioner submits that the difference arose on account of one invoice, which was inadvertently not filed with the return [i.e., GSTR-3B] submitted for March 2019; that the error was corrected in the subsequent return filed for April 2019 and the requisite tax, along with interest, has been deposited in line with the respondents/revenue's own circular dated 29.12.2017; that if this aspect is taken into account i.e., that the petitioner corrected the error in April 2019, almost nothing will be payable by the petitioner, insofar as the tax and interest are concerned. Held: Contentions raised by the petitioner in the writ petition will be examined by the officer concerned by treating it as representation and by granting an opportunity of hearing to the authorised representative of the petitioner; order to be passed within six weeks - Petition disposed of: High Court [para 8] GST - Bench observes that the orders which are passed carry endorsement which are spread right across the pages on which they are transcribed, making it difficult to read the orders - Such endorsement or mark could be affixed on the order where there is no writing; the space ordinarily available on the left or right-hand side corner of the order or at the foot of the order would perhaps serve the purpose - Revenue counsel to bring the above to the notice of the CEO of Goods and Service Tax Network: High Court [para 10, 10.1, 11]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-641-HC-DEL-GST

Amit Gupta Vs Directorate General of GST Intelligence Headquarters

GST - Petitioner challenges the order dated 9th July, 2021 passed by the CMM whereby the bail granted to the petitioner vide order dated 23rd December, 2019 was cancelled - Petitioner is the alleged mastermind behind devising a mechanism of availing Input Tax Credit on the strength of bills of various suppliers which were non-existing and fictitious and thus availed fraudulent ITC totalling Rs. 260 crores - Petitioner was granted regular bail vide order dated 23rd December, 2019 on his furnishing a personal bond and other conditions, one of which was that he shall deposit the amount of Rs. 2,70,00,000/- with the complainant department - Petitioner deposited Rs. 1.10 crores through cash ledger and Rs. 1.60 crores by way of debiting/reversals through electronic ITC ledger and according to the respondent department as also the impugned order since the ITC availed were through fraudulent means and thus the entire ITC claimed by the companies were under cloud, therefore, the petitioner could not have furnished Rs.1.60 crores by reversal of the ITC as a condition of bail - Trial Court further held that the petitioner never took prior permission of the Court to deposit the amount of Rs. 1.60 crores through reversal of credit from electronic ledger and merely placed the compliance by way of challans before the Court on 21st January, 2020 whereafter the respondent filed an application dated 24th January, 2020 seeking cancellation of bail of the petitioner. Held: A reading of Section 49 of GST Act permits availing of the amount in electronic ledger for making any payments towards output tax under the Act - Petitioner has to his credit ITC worth Rs.260 crores and the investigation does not show that beyond approximately Rs.42 crores ITCs, rest are fraudulent till now - Hence the reversal of the ITC credit for depositing the part amount of Rs.2.70 crores with the department as directed by the Trial Court cannot be said to be illegal or unwarranted, warranting cancellation of the bail granted to the petitioner - In case, the Trial Court felt that its order warranted deposit of money only with the department it could have granted time to the petitioner to deposit the same - The petitioner having fulfilled the condition of deposit of the amount partly by cash ledger and partly by debit ledger of the ITC, it cannot be said that the petitioner has failed to fulfil the conditions imposed on him - Consequently, the impugned order dated 9th July, 2021 passed by the CMM, Patiala House Court is set aside - Petition disposed of: High Court [para 12, 14, 15, 16]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-640-HC-ALL-GST

Kuldeep Sing Vs State of UP

GST - Writ petition is filed against the order of suspension dated 07.01.2022 - It is the case of the Revenue Counsel that the petitioner ought not to have taken action under Section 161 of the U.P. Goods and Services Tax Act, 2017 and instead should have informed his superiors who in their turn would have filed appeals under Section 107 of the U.P. Goods and Services Tax Act, 2017 - Court had, therefore, sought to know as to why action could not have been taken under Section 161 when there was definitely an error which was apparently there, namely, the details of the owners which were produced by the drivers were different from the details available on the GST portal - Petitioner submitted that there is no case of misconduct and rather the petitioner has imposed maximum penalty, therefore, there is no illegality in the orders passed; that the petitioner is under suspension since January 2022 and, therefore, prayer for revocation of suspension be allowed. Held: Petition is disposed of with a direction that in case the departmental proceeding is not concluded within four weeks and there is no allegation of non-cooperation of the petitioner, the impugned suspension order will become inoperative/under abeyance till the inquiry is concluded: High Court [para 6]

- Petition disposed of: ALLAHABAD HIGH COURT

2022-TIOL-639-HC-MP-GST

R K Modi And Sons Vs UoI

GST - Petitioner is aggrieved by the reversal (under protest) of Input Tax Credit of Rs.39,93,286/- from DRC-03 dated 28.01.2020 followed by demand notice dated 18.06.2021 passed by respondents No.2 & 3 - Petitioner submits that once they have filed the return after payment of applicable late fee under Sections 47 & 50 of the CGST Act which in fact allows the taxpayer to file the return beyond the due date then such a return should have been accepted without applying the provision of Section 16(4) of the CGST Act.  Held:  Admittedly, the petitioner has filed a return beyond the prescribed limit, therefore, the entries have been reversed under section 16(4) of the CGST Act - In the show-cause notice, the respondents have alleged that the noticee i.e. petitioner has wilfully filed the return on a later date than the due date of filing of GSTR 3B for the financial year 2018 - 19 to accommodate ITC, therefore, it is a matter of adjudication whether there was any wilful delay on the part of the petitioner to submit the return or not ? - Now since the show-cause notice has been issued, therefore, the petitioner is required to file a reply to the show-cause notice before the competent authority - No case for interference is made out - Writ Petition stands dismissed: High Court [para 7]

- Petition dismissed : MADHYA PRADESH HIGH COURT

2022-TIOL-643-HC-DEL-ST

Docland Services Ltd Vs CCGST

ST - SVLDRS, 2019 - Petitioner was required to pay 50% of the demanded tax i.e., Rs.47,41,146/- - Petitioner's main grievance is that because of a technical glitch, the necessary steps for availing benefits under the SVLDRS, 2019 could not be availed of - It is the petitioner's case that because of Covid-19, it could not take necessary steps for availing the benefits of the Scheme, within the time frame fixed by the respondent - Counsel for Revenue contends that since the deadline fixed under the Scheme stands crossed, the petitioner cannot avail the benefits under the Scheme - Petitioner submits that exceptions have been made, and, accordingly, specific circulars have been issued by the respondents. Held: Best way forward is that the Officer concerned will pass an order on the merits of the case, after according hearing to the authorized representative of the petitioner - Order to be passed within eight weeks - Petition disposed of: High Court [para 9.2, 9.3]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-373-CESTAT-DEL

Rajendra Mittal Construction Company Pvt Ltd Vs CCE & ST

ST - The brief issue requires to be decided is, whether the service undertaken by appellants falls under construction of complex services or works contract service - And as to whether the appellant is required to pay applicable service tax on construction of residential flat for the use of employees of their customers - Appellants relies upon CBEC circular F.No.332/16/2010-TRU - It is not the case of department that the residential quarters, construction of which was undertaken by appellants, for customers are for commercial use in any manner - Kolkata Bench of Tribunal has gone in to identical issue in case of Yogendra Rai wherein the issue was referred to third member, who decided the issue in favour of appellants - Tribunal in cases of M/s Khurana Engineering Ltd 2010-TIOL-1712-CESTAT-AHM and M/s Sugandha Construction Pvt Ltd 2017-TIOL-4082-CESTAT-DEL held that construction of residential quarters cannot be subjected to levy of service tax under any taxable services of works contract service or construction of complex service or commercial or industrial construction service - Appellants have contested the invocation of extended period - They submit that extended period cannot be invoked as entire records of appellant for the period were audited and no objection was raised on the issue and more so because the issue involves interpretation of statute, accordingly, penalty under Section 78 of Finance Act, 1994 cannot also be invoked - Issue involved is of interpretation and thus, the bona fides of appellants to hold a different opinion cannot be suspected and thus extended period cannot be invoked - Impugned order is not sustainable on merits as well as limitation - Accordingly, the same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-372-CESTAT-MUM

Tata Internet Services Ltd Vs CGST & CE

ST - The issue involved is as to whether appellants have utilized excess credit, i.e., more than the limit prescribed under Rule 3(5) of Service Tax Credit Rules, 2002 and Rule 6(3) of Cenvat Credit Rules, 2004 during period September, 2004 to September, 2007 - There are material contradictions in order of Adjudicating Authority and the same also have been repeated in impugned orders - On the one hand it has been recorded that the credit register was not produced but at the same time it has also been recorded that although both the register is produced but it is self attested and not attested by any Chartered Accountant therefore it cannot be looked into - The aforesaid view of Adjudicating Authority is not correct - The first appellate authority has also not applied independent mind and merely endorsed or repeated the findings and observations recorded by Adjudicating Authority - Admittedly, appellant has also not raised the ground about applicability of circular dated 21/11/2008 issued by CBEC before authorities below, although it is very material, as according to appellant prior to 01/04/2008 restriction was only for utilization of credit and not for taking of credit per se and therefore even if service tax is paid by utilizing credit in excess of restrictions prescribed under Rule 3(5) or Rule 6(3) it cannot be demanded again - Circular dated 21/11/2008 might have a bearing on the issue involved herein - Since it was raised for the first time before Tribunal, lower authorities did not have an opportunity to deal with the same, therefore on this count also appeal needs to be remanded - Appellant is directed to produce all the relevant documents/ materials in support of their submission before Adjudicating Authority: CESTAT

- Matter remanded: MUMBAI CESTAT

2022-TIOL-371-CESTAT-MAD

Mercury Manufacturing Company Ltd Vs CGST & CE

CX - The only issue to be decided is, whether the Appellate Authority was correct in confirming rejection of refund as made by Adjudicating Authority - Appellant had claimed refund for period from September 2004 to April 2007 and since then, they had not been given sustainable reasons for denying its rightful claim for refund - Revenue has not denied the contents of certificate issued by supplier and in turn, producer of HSD, that the products in question were dispatched on payment of Central Excise Duty plus Educational Cess, which has thereafter been paid to Government - Fact of payment of duty stands established - Moreover, when First Appellate Authority has clearly held that the payment of duty could be ascertained by verification of other statutory documents and records such as relevant payment ledgers of concerned parties, no such attempt in this regard appears to have been made, which only makes the rejection not only arbitrary, but also unsustainable - The only possible conclusion that could be drawn in the absence of specific disputes regarding the contents of certificates, by Revenue, therefore, is that the payment of duty thereof stands proved and hence, rejection cannot be made only for want of proof regarding payment of duty - Thus, appellant has made out a case as to its payment of duty and hence, the impugned order is not sustainable: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-370-CESTAT-AHM

AMI Lifesciences Pvt Ltd Vs CCE & ST

CX - Appellant is engaged in manufacture of pharmaceutical goods and some of the products are exempted - Initially they have availed the Cenvat Credit in respect of all common inputs and input services which have been used in manufacture of dutiable and exempted goods - The appellant subsequently reversed the cenvat credit attributed to exempted goods on due date - The case of department is that since the appellant have not filed a declaration for opting of proportionate reversal of credit, appellant is required to pay 5%/10% in terms of Rule 6(3)(A) of Cenvat Credit Rules, 2004 - Appellant have admittedly reversed the proportionate credit - Therefore, as held by Supreme Court in case of Chandrapur Magnet Wires (P) Ltd. 2002-TIOL-41-SC-CX , reversal of Cenvat Credit shall amount to non-availment of Cenvat Credit, if this be so, then Rule 6 ibid is not applicable - Alternatively, once, the appellant have reversed Cenvat Credit proportionately then the Revenue cannot insist for some other option which the appellant has not opted for - Non-filing of declaration is only the procedural requirement and due to lapse of procedural requirement, substantial benefit of proportionate reversal of Cenvat credit cannot be objected to - The details asked for in declaration is otherwise available with department, therefore, mere non filing of declaration cannot be the reason that appellant's option for proportionate reversal is not available - Accordingly, appellant has rightly reversed the proportionate credit - Hence, no further payment can be demanded from them: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2022-TIOL-369-CESTAT-BANG

Alufit India Pvt Ltd Vs CC

Cus - The appellant filed the Bills of Entry for import and clearance of 'Aluminium Composite Material' and 'Aluminium Composite Panels' - They classified the same under CTH 7606 1200 while department was of the opinion that the same are classifiable under Tariff Item 7610 90 30 of Customs Tariff Act, 1975 - A SCN was issued seeking change in classification and demanding differential duty - The issue is decided by Commissioner (Appeals)'s Chennai in favour of appellant on two occasions - Tribunal had rejected the appeal of Department for the reason of delayed filing by dismissing COD application - No material on record found to show that dismissal of application by Tribunal has been appealed against by Department - Order of Commissioner (A)'s Chennai has attained finality and it is not open for Department to raise the same issue again and again - Impugned goods are rightly classifiable under Tariff Item 7606 12 00 ibid : CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-368-CESTAT-HYD

CC Vs Adani Wilmar Ltd

Cus - Revenue is in appeal assailing the order of Commissioner (Appeals) on the issue regarding crude palmolein oil imported by assessee - The question which arises is, whether ullage report or shore tank report should be reckoned for determining customs duty - In view of decision in case of National Organic Chemical Indus. Ltd. , shore tank receipt must be considered for assessing the duty and not the ullage report and this position has also been accepted by CBEC and field formations have been directed to follow the same - The previous orders of Tribunal followed the same - In some cases, orders of Tribunal were also not challenged by Revenue - The Commissioner (Appeals) has followed the order of Tribunal as he is bound to as per judicial discipline - The argument of Revenue is that Commissionerate has now decided to challenge one of previous orders of Tribunal - While Revenue is free to file an appeal on any grounds, it is difficult to understand how they could file these appeals on the ground that Commissioner (Appeals) has erred in following the judicial orders as well as the circular of Board on an issue which is well settled - The second issue raised by Revenue is regarding measurement in shore tank being taken after cargo is settled - This Tribunal had held that the measurement should be taken after the cargo is settled - Tribunal fail to understand how the Revenue can find fault on any direction that measurements be taken before turbulence ends and liquid settles - Evidently, any measurement before the liquid settles is likely to be erroneous resulting in wrong quantities being recorded than what is present in the tanks - Revenue cannot seek to collect duty based on such quantities - The commissioner has correctly mentioned in public notice that the dip measurement must be taken after liquid is settled: CESTAT

- Appeals rejected: HYDERABAD CESTAT