I-T - Additions u/s 68 sustained where assessee fails to furnish evidence to prove identity or creditworthiness of creditors or establish genuineness of loan transaction : ITAT

I-T - Corpus donation received by a trust for utilisation for specific purposes qualifies as capital receipt & is non taxable even if trust is not registered u/s 12A: ITAT

I-T- Amendments inserted by Finance Bill in Sec 36(1)(va) as well as Sec 43B are applicable only from AY 2021-22: ITAT

I-T - If claim of additional depreciation by assessee was remanded back for re-adjudication in previous years, then similar action is warranted in current year also : ITAT

I-T - Payment of supplementary lease rent under lease agreements entered into before Mar 31, 2007 is exempt u/s 10(15A) : ITAT

I-T - Addition of cash deposits cannot be made as assessee has availability of cash in form of withdrawals : ITAT

I-T - Entire amount of bogus purchases cannot be added to assessee's income : ITAT

2022-TIOL-469-ITAT-JAIPUR

Modern Masti Pvt Ltd Vs DCIT

Whether disallowance can not be made on account of employees contribution towards PF & ESIC if deposit is made before due date of filing of return as amendments inserted by Finance Bill are applicable only from AY 2021-22 - YES : ITAT

- Assessee's appeal allowed: JAIPUR ITAT

2022-TIOL-468-ITAT-KOL

Eastern Coalfields Ltd Vs DCIT

Whether where claim of additional depreciation by assessee was remanded back for re-adjudication in previous years, then similar action is warranted in current year also - YES: ITAT

- Matter remanded: KOLKATA ITAT

2022-TIOL-467-ITAT-DEL

Addl.CIT Vs Interglobe Aviation Ltd

Whether payment of supplementary lease rent under lease agreements entered into before Mar 31, 2007 is exempt u/s 10(15A) - YES: ITAT

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-466-ITAT-DEL

Dewan Bal Krishan Vs ITO

Whether addition of cash deposits can not be made as assessee has availability of cash in form of withdrawals and same is duly shown in cash flow statement - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-465-ITAT-MUM

Shivam Trading Company Vs ITO

Whether entire amount of bogus purchases can be added to assessee's income - NO: ITAT

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

Cus - Since the inquiry is still in progress and may take further time before it is concluded, court orders provisional release of goods upon furnishing of bank guarantee, bond and undertaking subject to terms and conditions: HC

GST - Owner of seized Pan Masala consigment to execute bond for duty amount, as possibility remains of goods being sold in open market if released unconditionally: HC

GST - Power of suo motu investigation u/r 133(5) is retrospective - Every conceivable effort must be made to contain profiteering - Rules merely arm and equip the officers with the necessary ammunition to address the issue effectively: HC

CX - In absence of evidence to establish the marketability of sugar syrup, impugned goods cannot be considered to be excisable: CESTAT

Cus - The refund of SAD is available even if the rate of VAT/Sales Tax is lower than the rate of SAD or nil: CESTAT

CX - Appellants are entitled to claim interest @ 12% per annum of deposit made during investigation till its realization: CESTAT

ST - In terms of Circular No. 1/2016/11-ST, sub contractor would not be covered under category of taxable service but would be entitled to benefit of exemption in case the contractor is providing exempted services: CESTAT

ST - Appellant was required to make entire arrangements for pumping water when there was power failure, this cannot be called supply of tangible goods but is a contract for maintenance and management service: CESTAT

2022-TIOL-681-HC-MAD-GST

Theco India Pvt Ltd Vs Secretary NAPA

GST - Petitioner challenges a notice issued by the National Anti- Profiteering Authority (Authority)/R1 dated 10.07.2020 in consequence of a Report of the Director General of Anti- Profiteering (DGAP)/R2 dated 01.07.2020 - Petitioner has challenged the notice on various grounds, specifically, that the power of suo moto investigation in terms of Rule 133 of the Central Goods and Service Tax Rules, 2017 was available to the Authority only with effect from 28.06.2019.

Held: The petitioner has accepted the decision of the Authority dated 28.11.2018 to the effect that it has profiteered and has made good the unjust enrichment as determined by it - The challenge now, is to the widening of the scope of enquiry to include suo-moto review from 01.07.2017 with the inception of GST, till date of the complaint - The phrase ‘such other goods or services or both' figures only in Rule 133(5)(a) - Thus, the distinction is that while Rule (4) contemplates review of only the specific subject matter under the complaint, Rule (5)(a) empowers the Authority to cause enquiry even with regard to other goods or services - In this case, the power invoked is in terms of Rule (5)(a) insofar as the Authority has expanded the scope of enquiry to all business transactions of the petitioner between the period 01.07.2017 to 2019 - DGAP has heard the petitioner prior to formulating its report dated 01.07.2020, and there is no violation of the procedure as contemplated - Based upon this report, the Authority has issued impugned notice dated 10.07.2020 to the petitioner calling for an explanation as to why the report not be accepted and liability towards profiteering determined - Rules 133 (4) & (5)(a), no doubt, expand the scope of power vesting in the Authority to enquire, adding the dimension of suo-moto review, thereto - However, and bearing in mind the object of anti-profiteering measures, Bench is not inclined to accept the submission of the petitioner to the effect that the Rules are prospective in operation and will not be applicable in respect of complaints filed and enquiry commenced prior to the date of insertion of the rules - W ith the coming into force of GST on 01.07.2017 and with it Section 171, every conceivable effort to contain profiteering must be made be available to the Authorities and the Rules merely arm and equip the officers with the necessary ammunition to address the issue effectively - I n determining the effective date of a provision what is to be taken into account is the object and spirit behind the legislation and the purpose for which the new provision is sought to be introduced - P etitioner is thus at liberty to comply with the directive under the impugned notice, put forth its explanation in writing within a period of three (3) weeks, appear before the Authority on a date to be fixed by the authority as per mutual convenience of the parties and contest the findings and conclusion in the report of the DGAP dated 01.07.2020 - After hearing the petitioner, the Authority shall pass a speaking order in accordance with law, as expeditiously as possible. Writ petition is dismissed: High Court [para 18, 25, 32, 39, 44, 46].

GST - F or the reason that the issue to be decided is a legal issue untrammelled by any dispute on facts, the preliminary objection on maintainability is rejected - Assumption of jurisdiction by the respondents is upheld: HC [para 43]

- Petition dismissed : MADRAS HIGH COURT

2022-TIOL-680-HC-KOL-GST

STO Vs Surinder Kumar Kotnala

GST - The present intra-court appeal is filed against an interim order - The Revenue had challenged an order passed by the Appellate Authority under the CGST Act confirming the order of the adjudicating authority n levying tax of Rs.26,45,299/- and penalty of Rs.37,84,829 on the alleged ground that the goods were attempted to be offloaded in the State of West Bengal, though the goods were consigned to the State of Assam. The goods have been detained along with the vehicle since March, 2021 since the appellant could not avail the alternative remedy provided under Section 112 of the Act before the Appellate Tribunal as there is no forum as on date the writ petition was filed challenging the order of the Appellate Authority - The assessee had approached the Single Bench seeking release of the goods as well as the vehicle, claiming that the goods were Pan Masala unfit for consumption on account of them having deteriorated due to exposure to weather elements, on account of the detention of these goods - The Single bench had entertained the appeal since there was no forum available for the assessee to challenge the order passed by the FAA - The Single Bench had directed payment of 20% of the tax amount as a condition for release of the vehicle and the goods - The Revenue was aggrieved by such order on the ground that if the vehicle and the goods are released, the interest of the revenue will not be protected and such an order could not have been passed, more particularly in the light of the condition stipulated in Section 112(8)(a). Held - No grounds to interfere with the order passed by the learned Single Bench exercising discretion, imposing conditions for the purpose of release of the impugned goods and the vehicle: HC + Thus, we find that the exercise of discretion is neither improper or irrational for us to interfere. The interest of revenue stands sufficiently safeguarded as 30% of the disputed tax has been collected by the department. This Court expressed a concern that the product being pan masala and vehicle along with the goods having been detained for almost a year, the same would be unfit for consumption. This factual position is admitted by the first respondent; (Para 10) + The Court also expressed a concern that the first respondent, the consignee / owner of the goods, if is allowed to take the goods to the State of Assam, there may be a likelihood that the goods may be sold in the open market, which would be harmful. Taking note of the concern expressed by the Court, the learned counsel appearing for the respondent nos.1 and 2, on instruction, submitted that the first respondent may be permitted to send back the goods to the consignor in the State of Uttar Pradesh. If such permission is granted, it would ensure that the goods are not sold in the State of Assam and at the same time, would go back to the consignor in the State of Uttar Pradesh; (Para 11) + In order to safeguard the interest of revenue as well as to ensure that the respondent nos.1 and 2 cooperate in the proceedings, we are of the view that the balance amount of the disputed tax should be secured by the respondent nos.1 and 2 by executing a bond in the form as approved by the appellant; (Para 13) + Accordingly, the appeal and the connected application stand disposed of by directing the respondent nos.1 and 2 to execute a bond in the form as approved by the appellant authorities securing the interest of the revenue and also a letter of undertaking to produce the vehicle-in-question as and when required. Needless to state that the respondent nos.1 and 2 shall cooperate in the proceedings that may be initiated by the appellant department. The vehicle along with the goods shall be released within three days from the date on which the above conditions are complied with along with the specific condition that the goods shall be sent back to the State of Uttar Pradesh to the consignor; (Para 16)

- Appeals dismissed: CALCUTTA HIGH COURT

2022-TIOL-682-HC-MAD-VAT

Vishnu Enterprises Vs Asstt. Commissioner (CT)

Whether it is fit case for remand where assessment order has been passed without properly considering the reply to SCN filed by the assessee - YES: HC

- Writ petition allowed: MADRAS HIGH COURT

2022-TIOL-675-HC-AHM-CUS

Besto Tradelink Ltd Vs Pr.CC

Cus - The inquiry is still in progress and may take some further time before it is concluded - The court orders provisional release of goods (Magnesium lump) upon furnishing of bank guarantee, bond and undertaking subject to terms and conditions - Once the bank guarantee is furnished of requisite amount, goods shall be provisionally released in favour of applicants - The respondent shall see to it that the inquiry is concluded within a period of twelve weeks - If for any good reason or if respondent has some information as regards the origin of goods and need some more time, then it shall be open for respondent to file an appropriate application seeking extension of time period to complete the inquiry - If such extension is granted by the Court concerned, then the bank guarantee may also stand extended accordingly: HC

- Writ application disposed of: GUJARAT HIGH COURT

2022-TIOL-674-HC-AHM-CUS

Swiss Carbonate Vs UoI

Cus - The inquiry is still in progress and may take some further time before it is concluded - The court orders provisional release of goods (Magnesium lump) upon furnishing of bank guarantee, bond and undertaking subject to terms and conditions - Once the bank guarantee is furnished of requisite amount, goods shall be provisionally released in favour of applicants - The respondent shall see to it that the inquiry is concluded within a period of twelve weeks - If for any good reason or if respondent has some information as regards the origin of goods and need some more time, then it shall be open for respondent to file an appropriate application seeking extension of time period to complete the inquiry - If such extension is granted by the Court concerned, then the bank guarantee may also stand extended accordingly: HC

- Writ application disposed of: GUJARAT HIGH COURT

2022-TIOL-395-CESTAT-MUM

Venugopal Foods Pvt Ltd Vs CCE

CX - The appellants are manufacturer of biscuits which are exempt from payment of central excise duty vide Notfn 3/2006-CE, as amended by Notfn 22/2007 - During manufacture of biscuits, sugar syrup is produced which is classifiable under sub-heading 17029090 and attracts duty @ 10% ad valorem w.e.f. 27.02.2010 - As the finished goods are exempt from payment of duty, Revenue views that the appellants were required to discharge duty as benefit of exemption Notfn 67/95-CE was not admissible to them - No evidence has been adduced by revenue that the sugar syrup in question is known in market as such and can be marketed - Supreme Court has clearly laid down that marketability is question of fact and needs to be examined in facts of each case and for that shelf life cannot be relevant criteria - Contrary to revenue not having adduced any evidence to establish the marketability of "sugar syrup", arising in course of manufacture of biscuits, appellants have produced a substantial number of certificates earlier referred while recording the submissions made during course of argument from persons dealing in similar goods who clearly stated that "sugar syrup" of this type is never bought and sold in the market - In absence of evidence to establish the marketability of sugar syrup, Tribunal is not inclined to accept the argument advanced by revenue on the basis of this decision of Apex Court - No reason found to sustain the impugned order: CESTAT

- Appeal allowed: MUMBAI CESTAT

2022-TIOL-394-CESTAT-CHD

Marshall Foundry Works Pvt Ltd Vs CCE & ST

CX - The appellants are in appeal against impugned orders wherein the claim of interest to pay on delayed refund @ 12% was rejected by authorities below - The issue of rate of interest has been decided in earlier round of litigation, therefore, appellants are entitled to claim interest @ 12% from the date of deposit on its realization - The issue, whether the appellant is entitled to claim interest @12% on delayed refund till its realization has been examined by Tribunal in case of M/s. Parle Agro Pvt. Ltd. 2021-TIOL-306-CESTAT-ALL - Therefore, appellants are entitled to claim interest @ 12% per annum of deposit made during investigation till its realization: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

2022-TIOL-393-CESTAT-ALL

Yogesh Kumar Gupta Vs CC

ST - Assessee is in appeal is against impugned order demanding service tax for the period 2010-11 to 2012-13 - Main contention of appellant is that in most of the cases, they have provided services along with material - From the work orders enumerated in impugned order in most of the cases that there services has been provided along with material, if that is the case, service tax cannot be demanded under category of erection, commissioning and installation services and management and repair services as same merits classifiable under works contract services as held by Apex Court in case of L&T Ltd. 2015-TIOL-187-SC-ST - Further, in most of the cases, appellant has also supplied goods which are in nature of sale of goods activity/trading activity - In that circumstances also, no service tax is payable by appellant - Any services provided to deal with was excluded by virtue of entry no. 8 in Circular 103/05/2010-ST - Therefore, services provided to these agencies are not taxable - During impugned period, trading of goods is exempt from levy of service tax by virtue of sl. No. 12 of Notfn 25/2012-/ST - Any service in nature of erection, commissioning and installation, management and maintenance repair provided to local authority or government authority are exempt from payment of service tax - In terms of Circular 1/2016/11-ST, sub contractor would not be covered under category of taxable service but would be entitled to benefit of exemption in case the contractor is providing exempted services - Impugned order is not sustainable in the eyes of law and matter is remanded back to Adjudicating authority to ascertain the service tax payable by appellant on services which has been provided by the appellant without material under the respective categories of services: CESTAT

- Matter remanded: ALLAHABAD CESTAT

2022-TIOL-392-CESTAT-DEL

Sahni Electric Works Vs CST

ST - Appellant is a proprietorship concern engaged in Government contracts - It provided management, maintenance or repair services to Delhi Jal Board during relevant period - As far as the first fact of demand under head "supply of tangible goods services" is concerned, the contract was not given by Delhi Jal Board to appellant to supply diesel Gensets although they were an important component of contract - Supply of Diesel Genset was not the essence of contract - Appellant was required to make entire arrangements for pumping water when there was power failure - It would have been a different case if the contract was only for supplying Diesel Gensets without transferring effective control and possession - This cannot be called supply of tangible goods but is a contract for maintenance and management of arrangement for pumping water - Appellant has already discharged service tax under head Management, Maintenance and Repair Services - As far as the cost of diesel, mobile oil is concerned, these were required for maintenance, incurred by appellant and reimbursed by Delhi Jal Board - Therefore, these reimbursements cannot be called consideration for rendering service - Therefore, entire demand made in SCN and confirmed in impugned order towards supply of tangible goods service needs is set aside - So far as the electric motor winding job is concerned, undisputedly this service required both winding of motors and also using the materials required for such service - Thus, it was a composite works contract which involved both rendering service and supplying material - Revenue also does not dispute that it is a composite contract - Appellant has paid service tax on 20% and VAT on the 80% of amount - Demand of service tax on 80% of value of contract attributed towards the goods cannot be sustained - The definition of "works contract service" under Section 65 (105) (zzza) does not include works contract towards winding of motor - For that reason also, demand cannot be sustained - Demand of interest and penalties imposed also cannot be sustained: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-391-CESTAT-DEL

Pr.CC Vs Krishna Incorporation

Cus - The issue arises is, whether Commissioner (A) 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 itself provides for refund of SAD on re-sale of goods - The mechanism of refund has been provided vide notfn 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