I-T - Power of revision need not be exercised where PCIT does not point out any inadequacy in original assessment order: ITAT

I-T - Section 68 being rule of evidence, onus is on assessee to establish source and nature of credits in question: ITAT

I-T - Penalty notice is invalid where inapplicable charge between concealment of income & furnishing inaccurate particulars of income is not struck off : ITAT

I-T - Case can be remanded to check and confirm source of investment as nexus theory is not always a correct test :ITAT

I-T - No disallowance of interest expenditure is warranted under Rule 8D(2)(ii) r.w.s. 14A, if investments were made out of own funds: ITAT

I-T - Assessee cannot be allowed to cover any sum disclosure amount by claim of expenditure, which were totally afterthought: ITAT

2022-TIOL-584-ITAT-KOL

Pawan Kumar Gupta Vs ITO

Whether additions framed u/s 68 are sustained where assessee is able to prove identity, creditworthiness and genuiness of persons who lent money to the assessee - NO: ITAT

- Assessee's appeal partly allowed: KOLKATA ITAT

2022-TIOL-583-ITAT-KOL

Keventer Agro Ltd Vs DCIT

Whether no disallowance of interest expenditure is warranted under Rule 8D(2)(ii) r.w.s. 14A, if investments were made out of own funds - YES: ITAT

- Assessee's appeal partly allowed: KOLKATA ITAT

2022-TIOL-582-ITAT-KOL

Clifton Pearson Export And Agencies Ltd Vs Pr.CIT

Whether power of revision u/s 263 is rightly exercised where the PCIT has not established any inadequacy in respect of the findings recorded in the original assessment order - NO: ITAT

- Assessee's appeal allowed: KOLKATA ITAT

2022-TIOL-581-ITAT-DEL

ACIT Vs Kanti Commercial Pvt Ltd

Whether Section 68 being rule of evidence, onus is on assessee to establish source and nature of credits in question - YES: ITAT

- Matter remanded: DELHI ITAT

2022-TIOL-580-ITAT-DEL

Proform Interiors Pvt Ltd Vs ACIT

Whether penalty notice issued u/s 271(1)(c) & 274 is invalid where the inapplicable charge between concealment of income & furnishing inaccurate particulars of income has not been struck off - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

GST - Notice for attachment in form DRC-16 can be construed only as a provisional attachment order made u/s 83: HC

GST - Procedure contemplated u/s 74, especially u/s 74(5) not complied with before service of notice u/s 74(1) - Order set aside and matter remanded: HC

CX - Irrespective of the fact that windmill is located outside factory premises, repair and maintenance service is admissible for Cenvat credit in terms of rule 2(l) of CCR, 2004: CESTAT

Cus - Though appellant need not physically go to customer premises to verify genuineness, they cannot be careless about customers and deal with persons who claim to be representative of their customers: CESTAT

CX - Even though appellant have reversed Cenvat Credit on audit objection and subsequently, realizing that they are entitled for Cenvat credit, filed a refund claim, therefore same can not be rejected on the ground that they had paid the amount voluntarily : CESTAT

2022-TIOL-815-HC-MAD-GST

Tvl G Sankar Timber Depot Vs STO

GST - Petitioner had challenged the assessment orders on the ground that principles of natural justice had been violated inasmuch as show cause notice was issued for the three assessment years in the month of August 2020 and within a short span of time, the impugned assessment orders have been passed - Single Judge had held that  the respondent ought to have given some more time to the petitioner to place all his objections with regard to the demand made, however, considering the huge amount of taxes held payable Court had directed the petitioner to pay a sum of Rs.3,00,000/- in respect of each of the impugned assessment orders and on such payment, the impugned assessment orders would stand quashed and the matter remanded for fresh consideration - Instead of complying with this order, the petitioner took a chance before the Division Bench but which dismissed the appeal - It is the case of the petitioner that despite the order of remand, the respondent authorities proceeded to issue the notice for attachment and for sale of the immovable property u/s 79 of the GST Act, 2017 in Form GST DRC -16 by attaching various properties - Petitioner had sought quashing of the form GST DRC-16 by filing a petition before the High Court - Single Judge Court observed that there is no attachment of any bank accounts; DRC-16 merely is a notice for attachment and for sale of immovable properties; the  petitioner appeared to be interested in dragging on the proceeding though they appear to be in arrears of huge amount of tax; that since the matter had been remitted back, it was not open for the petitioner to seek for quashing of GST DRC-16 - Respondent was directed to proceed further in terms of notice dated 14.02.2022 and bring a closure to the issue within a period of 3 months  - Appeal filed against this order of the Single Judge.

Held: Insofar as  Form GST DRC-16 is concerned, though it has been mentioned as if it was issued under Section 79 of the Act, Bench finds that such attachment order can be construed only as a provisional attachment order made under Section 83 of the said Act; that, therefore, merely because of the wrong quoting of the provision, the order impugned before the Writ Court cannot be successfully assailed by the appellant, as the law is well settled in this regard that non-quoting of the provision of law or wrong quoting of the same may not vitiate the proceedings on that ground itself - There is absolutely no scope for interfering with the order of the Single Judge, which is impugned - Writ Appeal is dismissed: High Court [para 10 to 12]

- Appeal dismissed: MADRAS HIGH COURT

2022-TIOL-814-HC-MAD-GST

Amutha Metal Industries Vs Deputy STO

GST - As per the Scheme under Section 74 of the Act, 2017, first notice should be given or option should be given to the dealer under Section 74(5) of the Act and if the option is not utilised or responded by the petitioner dealer, then only further notice under Section 74(1) should be issued, thereafter, on receipt of reply or otherwise and considering the same, after giving personal hearing, the Revenue should continue to proceed with Section 74 proceedings -   It is a clear case where procedure contemplated under Section 74 especially, under Section 74(5) has not been complied with - Impugned order is set aside and the matter is remanded back to the respondents for reconsideration and while reconsidering the same, the procedure contemplated especially in the context of Section 74(5) and 74(1) should be strictly followed by giving an opportunity to the petitioner including personal hearing - Writ Petition is disposed of [para 4, 6]

- Petition disposed of: MADRAS HIGH COURT

2022-TIOL-487-CESTAT-AHM

Vardhman Plastochem Pvt Ltd Vs CCE & ST

CX - Appeal is directed against order of Commissioner (Appeals) whereby he upheld the order of original authority rejecting the refund claim of an amount which was reversed as Cenvat Credit on Outward GTA - Even though the appellant has paid the amount on observation of audit team but subsequently they realized that the amount was not payable, accordingly, they had filed a refund claim - The refund claim should have been decided on merit by Adjudicating Authority - Appellant have statutory right that benefits due to them can be claimed at any stage and the same need to be disposed in accordance with law on merit - As regard merit of case the fact that the sale of goods in relation to which they incurred the expenditure of outward transportation is on FOR sale and the freight amount is included in price of goods on which excise duty was paid - This Tribunal Considering the very same fact, allowed the Cenavt credit in case of Ultratech Cement Ltd 2019-TIOL-1420-CESTAT-AHM and Sanghi Industries 2019-TIOL-1709-CESTAT-AHM and the same was upheld by Jurisdictional High Court of Gujarat - Accordingly, appellant is entitled for Cenvat credit in respect of Outward Transportation and consequently they are also entitled for refund of the same as the same was reversed by them: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2022-TIOL-486-CESTAT-AHM

Swiss Glascoate Equipments Vs CCE & ST

CX - The issue involved is, whether the appellants are entitled for Cenvat Credit in respect of repair and maintenance of wind mill which is located outside the factory premises - Both the lower authorities have denied Cenvat Credit on the ground that wind mill is located outside the factory premises - An identical issue has been decided by Tribunal in case of Endurance Technology 2015-TIOL-1371-HC-MUM-ST - Ratio of said judgment is applicable in present case - Accordingly, irrespective of the fact that windmill is located outside factory premises, repair and maintenance service is admissible for Cenvat credit in terms of Rule 2(l) of Cenvat Credit Rules, 2004 - Accordingly, impugned orders are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2022-TIOL-485-CESTAT-MUM

Asmita Chitra Vs Assistant Commissioner

ST - Appellant opted for VCES and made the declaration as required in terms of said scheme, declaring the service tax liability for the period 01.10.2008 to 31.12.2012 - She expired on 06.08.2014 - Legal heir of Ms Smita Avinash Talwalkar has relied on decision of Apex Court in case of Shabina Abraham [2017 (50) S.T.R. 241 (S.C)] = 2015-TIOL-159-SC-CX , to claim refund of amount deposited after her expiry - Same was rejected by lower authorities - The refund claim has been filed in terms of Section 11B of Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of Finance Act, 1994 - In view of specific provisions made by Section 109 ibid, Tribunal is not inclined to accept the submissions of appellant that the amount can be claimed by them as refund under Section 11B of Cenvat Excise Act, 1944 r/w Section 83 of Finance Act, 1994 - The decision of Shabina Abraham was rendered taking note of absence of machinery provisions for continuance of proceedings under Section 11A ibid, after expiry of proprietor - Same is not the case as no such proceeding is there but refund claim has been made in respect of amounts deposited in terms of VCES, and as per Section 109 ibid, no refund of the amounts paid under said scheme will be refunded under any circumstances - The impugned order is upheld: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2022-TIOL-484-CESTAT-MUM

Sky Sea Services Vs CC

Cus - The appellant, a Custom Broker, is in appeal against impugned order vide which the security deposit was forfeited and penalty was imposed in terms of CBLR, 2013/CBLR, 2018 - Department has alleged that appellant has violated various provisions of CBLR inasmuch as they did not verify the credentials of their client importers; they allow unauthorized members to attend the document relating to customs clearance - The appellant claim that one importer has given a blank authorization while the other has given a power of attorney - Appellant have not based their argument on as to how they have conformed to KYC norms while interacting with their customers - They have not submitted any independent reliable documents to prove genuineness of where about of clients - Appellants have also not submitted any cogent reasons as to how they permitted persons without "G" or "H" cards to handle the documents on their behalf - Proprietor of appellant has accepted their lapses in statement recorded before customs officers - Such statement has not been retracted - Though Tribunal agrees with the submissions of appellant that they need not physically go to customer premises to verify genuineness, they cannot be careless about the customers and deal with persons like Shri Kamat who claim to be representative of their customers - It was incumbent on appellant-Custom Broker that they conduct all possible enquiries through independent reliable sources/ documents to verify credentials of clients - No such effort made by appellant and no such document relied upon have been placed on record - Thus, they have failed to observe due diligence in this regard and thus ended up facilitating fake importers - Therefore, appellant-Custom Broker has violated provision of Regulation 11(a), (b), (d) and (e) of CBLR, 2013 - The Commissioner while passing impugned order has considered all the facts including punishment suffer by appellant and let them off with penalty and forfeiture of security deposit - Commissioner was not harsh to revoke the license - To that extent, impugned order is reasoned, cogent and legally maintainable: CESTAT

- Appeal dismissed: MUMBAI CESTAT