I-T - Revisionary powers to be exercised only if PCIT disagrees with view taken by AO in original assessment order : ITAT

I-T- As jurisdiction of AO to pass order u/s 154 to withdraw relief granted u/s 14A is held to be barred, issues involved in cross appeals stand disposed of : ITAT

I-T - If employee's share of contribution is made on or before due date for furnishing return u/s 139(1), then employer would be entitled to claim deduction u/s 43B: ITAT

I-T - If assessee fails to furnish information relating to trading liabilities, addition can be made on estimated basis : ITAT

2022-TIOL-811-HC-DEL-IT

GE Energy Parts Inc Vs ACIT

In writ, the High Court observed that if the Petitioners were to move an application under Section 197 of the Act for FY 2022-2023, and if the contentions raised in the writ petitions form part of the said application, the same will be dealt with by the AO, as per law. In case, such an application is moved, the AO will dispose of the same within four weeks of the receipt of the application.

- Writ Petition disposed of: DELHI HIGH COURT

2022-TIOL-577-ITAT-BANG

D Dasappa Vs DCIT

Whether purposive interpretation plays an important role in construing the retrospective operations of such provision, whether provisions of section 153C as amended by Finance Act 2014 are retrospective- Held-YES : ITAT Whether cases where no return of income has been filed due to absence of taxable income are to be considered as case of unabated assessment & hence can be reopened only when there is some incriminating material-Held- YES: ITAT Whether user of land coupled with its character & non-est CLU, would decide the nature of income arose from the transfer of such land- Held- YES: ITAT

- Assessee's appeal allowed:BANGALORE ITAT

2022-TIOL-576-ITAT-BANG

Late Kari Thimmegowda Rajashekhara Vs DCIT

Whether when employee's share of contribution is made on or before due date for furnishing return u/s 139(1), then employer would be entitled to claim deduction u/s 43B - YES: ITAT

- Assessee's appeal allowed: BANGALORE ITAT

2022-TIOL-575-ITAT-BANG

G Vijaya Vs DCIT

Whether since assessee fails to furnish information and explanations relating to trading liabilities, addition can be made on estimated basis in order to take care of revenue leakage - YES : ITAT

- Assessee's appeal partly allowed: BANGALORE ITAT

GST - Providing boarding and lodging to students undergoing training under Deendayal Upadhyaya Grameen Kaushalya Yojana is not a composite supply - accommodation service is exempted; food is taxable @5%: AAR

GST - Sale of old car - Value is difference between consideration received for supply of said car and depreciated value; taxable @18%: AAR

CX - When the appellants have been given permission to clear goods in DTA, department cannot then vaguely allege that they are not similar goods, the demand therefore cannot sustain: CESTAT

Cus - Since the amount as has already been deposited by appellant is definitely more than 7.5% of amount of penalty, Commissioner (A) is directed to afford proper opportunity of hearing to appellant and to decide the appeal on merits: CESTAT

CX - When there is lack of proper opportunity given to appellant for hearing, as no further date was fixed after receipt of report of Range officer, nor a copy was given to appellant asking for reply, matter is remanded to original Adjudicating Authority: CESTAT

2022-TIOL-68-AAR-GST

Healersark Resources Pvt Ltd

GST - Applicants  are in the business of providing boarding and lodging to the students undergoing training under healthcare related vocational program under Deendayal Upadhyaya Grameen Kaushalya Yojana (DDU- GKY) - They are desirous of ascertaining whether the service provided by them is exempted under serial no. 14 of Notification No. 12/2017-CTR as they are charging only Rs.300/- per day (Rs.9000/- per month of which Rs.3500/- is towards rent for accommodation at fixed cost and Rs.5500/- towards food on head count/actual number of candidates).  Held: Rent is fixed at the rate of Rs.3500/- whereas the food is charged at Rs.5500/- as per the head count or actual number of candidates - This means that the price is variable to the extent of food supplied and this is not a single price the customer pays, no matter how much of the package is actually received -   The two supplies are not integral to one another - There are two distinct supplies in this contract, one for accommodation and the other for food - SAC for supply of accommodation is 99631 and as enumerated at serial no. 14 of Notification No. 12/2017-CTR this is exempt in the present case as the day rent is below Rs.1000/- - Further,  SAC for supply of food is 99633 and taxable at the rate of 12% with ITC upto 14.11.2017; @5% without ITC from 15.11.2017 onwards: AAR

- Application disposed of: AAR

2022-TIOL-67-AAR-GST

Dishman Carbogen Amcis Ltd

GST -  Applicant had purchased a new car for use in its business but did not avail GST ITC as it is restricted u/s 17(5) of the Act - Applicant wishes to sell the said 'used car' for a consideration of Rs.55 lakhs (inclusive of all taxes); that depreciation was claimed under Income Tax Act, 1961 - Applicant further submits that the Written Down Value as per the books of accounts is Rs.47 lakhs - Applicant has sought a ruling on the following questions - (1) On what value, the new car purchase by the company is sold after using it for business purpose, shall the GST be charged?; (2) At what rate of GST, the new car purchase by the company is sold after using it for business purpose, shall the GST be charged?; (3) Whether the value of old and used car, sold by the company as mentioned above, can be taken as the value that represent margin of the supplier, on supply of such car, and whether the GST can be charged on such margin? & (4) The value that represents margin of the supplier, on supply of such old and used goods/Car will be inclusive of GST or exclusive?  Held: Subject car has engine capacity exceeding 1500 cc, length > 4000 mm, and ground clearance > 170 mm, with diesel as its fuel - As the applicant submits that it has not availed ITC, this used car would fall under the category of Sr. no 3 to Notification 8/2018-CT (R) attracting GST @18% - Held, therefore, that  Value for intended supply shall be the difference between the consideration received for supply of said car and the depreciated value (under s.32 of the Income Tax Act) of the said car on the date of supply - GST rate is @18% - Value as per Explanation (i) to notification 8/2018-CTR is exclusive of GST: AAR 

- Application disposed of: AAR

2022-TIOL-483-CESTAT-DEL

Surjan Lal Vs CC

Cus - The order under challenge is merely on technical ground of non-compliance of section 129 (e) of Customs Act, 1962 which require a deposit of 7.5% of duty/penalty in dispute - The original adjudicating authority has not order any demand of duty - However, penalty of Rs.4,00,000/- has been imposed upon appellant - The amount of Rs.75,000 + 40,000 as has already been deposited by appellant is definitely more than 7.5% of aforesaid amount of penalty - Hence, it is held that Commissioner (A) has committed an error while not considering the aforesaid amount already deposited by appellant as the amount of pre-deposit of 7.5 % of penalty - Accordingly, the order under challenge is hereby set aside - Commissioner (A) is directed to afford the proper opportunity of personal hearing to appellant and to decide the appeal on merits of case - The matter may be decided within three months: CESTAT

- Matter remanded: DELHI CESTAT

2022-TIOL-482-CESTAT-DEL

Kishor Jaiswal Vs CCE & CGST

ST - The appellant is involved in providing construction services to various Governmental Departments/Authorities and even to local bodies as that of Adim Jati Jila Sanyojak, Dhamtari, CG Police Housing Corporation Ltd., PWD Chhattisgarh State, Nagr Palik Paishad, Dhamtari, EE, Rural Engineering Services, Dhamtari and CG Rajya Mandi Board, Raipur - Relying upon Entry No. 12 and 13 of Notfn 25/2012-ST, Original Adjudicating Authority itself has held that different Departments of Chhattisgarh Government and Nagar Palika Nigam are covered under Governmental/Local Government and the services provided to any of these departments shall be covered under aforesaid Entry no. 12 and 13 and as such shall be exempted from liability of tax - However, services for construction of houses and quarters for CG Police Housing Corporation Ltd. and for construction of 'Hut Bazaar' for Nagar Palika Parishad, Dhamtari were held to be out of the scope of being the governmental bodies - Commissioner (A) though has considered the services provided to CG Police Housing Corporation Ltd. also to be the services covered under clause 12 and 13 of said Notfn, however, the services of construction of 'Hut Bazaar' are still held to be taxable, holding the services being provided for commerce & industry activity which is specifically excluded from exemption notification - The issue stands covered by decisions in Shapoorji Paloonji & Company Pvt. Ltd. 2016-TIOL-556-HC-PATNA-ST , A.B. Projects Pvt. Ltd. 2017-TIOL-3031-CESTAT-MUM and Shri Sanjeev K. Gaddamwar 2017-TIOL-3231-CESTAT-MUM - The department has not produced any document to show that the stalls of 'Hut Bazaar' were rented out or auctioned to farmers - Though the SCN alleges amount proposed to be recovered as a liability towards an amount received after auction of 'Hut Bazaar' but there is no single document to support those allegations - The Adjudicating Authority below has denied the money collected by Government Authorities to whom the services have been provided by appellant, to be an amount of auction - It is rather mentioned by Commissioner (A) in order under challenge that the 'Bazaar Shulk' / the nominal fee was lifted w.e.f. 01.04.2018 - As already observed the issue of collection of nominal fee with respect to stalls for facilitating the farmers is not an activity of commerce - It is held that Commissioner (A) though had been thoroughly meticulous about the entire demand proposed in SCN but has been wrong while considering the construction of 'Hut Bazaar' as an activity of commerce and industry - Resultantly, findings to that effect also are hereby set aside - The demand confirmed on that account stands set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-481-CESTAT-DEL

Patil Rail Infrastructure Pvt Ltd Vs CCE & ST

CX - Appellant mentions that it is recorded in impugned order that the Adjudicating Authority/Commissioner called for a report from Jurisdictional Range officer for examining documents in support of claim of Cenvat Credit - Range officer submitted his report and thereafter, no opportunity was allowed to appellant by fixing date of hearing, or by providing a copy of report inviting their comments - There is definitely lack of proper opportunity given to appellant for hearing, as no further date was fixed in matter after receipt of report of Range officer, nor a copy of report of Range officer was given to appellant asking for reply or comments - Accordingly, matter is remanded to original Adjudicating Authority with the direction to provide a copy of Report of Range officer to appellant and after perusal of reply and hearing the appellant to pass reasoned order in accordance with law: CESTAT

- Matter remanded: DELHI CESTAT

2022-TIOL-480-CESTAT-MAD

General Optics Asia Ltd Vs CGST & CE

CX - The appellants were served with 15 SCNs proposing to demand differential duty - The appellants contend that the goods exported by them as well as cleared to DTA are precision optical components and are similar to goods exported - The department alleges that goods are not similar - The goods other than cover and coveter glasses which fall under the current SCNs are listed out in O-I-O - The reason stated by original authority for confirming demand is that the appellant did not submit any conclusive technical proof to prove that the goods cleared are "similar goods" as envisaged in notification - Apart from this, there is no other discussion given thereto - When the appellants have been given permission to clear goods in DTA by DC, the department cannot then vaguely allege that they are not similar goods - Appellant has furnished a Chartered Engineer certificate certifying that the goods are similar and fall within the category of precision optical components - Said certificate has been brushed aside by Commissioner (A) stating that it is merely an after-thought - The Commissioner (A) has failed to note that it is an opinion given by an expert and unless there is some evidence to rebut such opinion, the certificate issued by Chartered Engineer cannot be discarded in toto - The department does not dispute the permission letters issued by Development Commissioner for clearance of goods to DTA - On such score, the allegation that the goods do not fall into the category of precision optical components or that they are not similar goods is without any factual or legal basis - The allegation raised in SCN that the goods are not "similar goods" is without any basis - The demand cannot sustain, impugned order is set aside: CESTAT  

- Appeals allowed: CHENNAI CESTAT