I-T - For re-assessment, existence of belief has to be bonafide & has to be based on material which is relevant & specific in nature & is discernable from facts on record : ITAT

I-T - When there is legal disability or physical impossibility in creating tenancy & due to which property is left vacant, then there is no possibility of rent being realized & rent cannot be said to be receivable: ITAT

I-T - Penalty levied u/s 271(1)(b) merits being quashed since assessee did not receive notice issued u/s 142(1) or 142(2A) on account of change of address : ITAT

2022-TIOL-593-ITAT-DEL

ACIT Vs R P Jewellers

Whether for re-opening of assessment, existence of belief has to be bonafide & has to be based on material which is relevant & specific in nature & is discernable from facts on record - YES: ITAT

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-592-ITAT-DEL

Kamal Kumar Vs ACIT

Whether rent receivable u/s 23(1)(c) indicates that there should be, not mere possibility of receiving the rent, but rent can become payable in all the probability, as the property is available for being given on rent - YES: ITAT

Whether when there is some legal disability or physical impossibility in creating a tenancy and due to which the property is left vacant, in any part or whole of the year, then there is no possibility of rent being realized and so the rent cannot be said to be receivable - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-591-ITAT-JAIPUR

Ranjan Sharma Vs ITO

Whether penalty levied u/s 271(1)(b) merits being quashed since the assessee did not receive notice issued u/s 142(1) or 142(2A) on account of change of address - YES: ITAT

- Assessee's appeal allowed: JAIPUR ITAT

ST - Income derived from rent paid by Postal department, banks etc. allowed to set shop in university campuses also falls within the purview of educational services, hence exempted: HC

GST - ITC - Technical reasoning that SCN cannot be treated as a communication u/s 42(3) of the Act, 2017 intimating mismatch cannot be countenanced: HC

Cus - Whole burden or onus to establish smuggled nature of goods/gold is on revenue which have not been discharged, the proceedings are ab initio void, wholly holding without jurisdiction: CESTAT

CX - Since the refund was sanctioned within three months from date of application and refund arose consequent to order of Commissioner (A), no interest is payable from date of deposit of duty during investigation: CESTAT

2022-TIOL-824-HC-MAD-GST

Mahendra Feeds And Foods Vs Deputy CGST & CE

GST - According to Revenue, ITC claimed by the petitioner was a wrong claim because there was a complete mismatch between the supplier and the petitioner, as the supplier in support of his outward tax has not paid the tax or not shown the same in their accounts, as if that they paid the tax - SCN was issued and impugned order was passed which is sought to be quashed by way of the present petition - Petitioner submits that under Section 42(3) of the GST Act there is an obligation on the part of the Revenue to communicate to both the supplier and the dealer who received the goods by way of input supply about the mismatch of ITC as the supplying dealer has not paid the output tax at their end - However since no such communication has been issued and they issued the show cause notice, it is a procedural violation.

Held: After receipt of the show cause notice, if at all the petitioner wanted to rectify the mismatch between the petitioner and the supplying dealer, the supporting documents to substantiate that the output tax had been paid by the supplying dealer at their end should have been procured and filed along with the reply submitted by the petitioner, which they failed to do - Technical reason that u/s 42(3) of the Act, 2017, it should have been communicated at the earliest point of time and, therefore, the show cause notice cannot be treated as communication intimating the mismatch between the supplier and the petitioner, cannot be countenanced - Court feels that the impugned order cannot be successfully challenged - Petition dismissed: High Court [para 9, 10]

- Petition dismissed: MADRAS HIGH COURT

2022-TIOL-825-HC-MAD-ST

Tamil Nadu Dr Mgr Medical University Vs Pr. Addl. Director General Directorate General of Goods and Services Tax, Intelligence

ST - Petitioners are State Universities created under the Act of State Legislature - Certain immovable properties are rented out which are located in the respective University campuses for the purpose of housing Bank, ATM, Post Office, Staff Canteen, Students Canteen etc. - According to the petitioners these activities are educational activities and, therefore, whatever the fee or rent collected by these Universities from those for whom it has been rented out, as the same are only for the benefit of the students and staff of the Universities, the Universities are to be exempted from the purview of Service Tax; that the issue is no more res integra as it has been exhaustively considered and decided in the matter of Madurai Kamaraj University = 2021-TIOL-1812-HC-MAD-ST and, therefore, the show cause notice issued in respect of petitioner University in W.P.No.21907 of 2021 and the Order-in-Original issued in respect of petitioner University in W.P.No.26300 of 2021 are liable to be set aside in view of the law declared in the said order (supra).

Held: Issue raised in these writ petitions is no more res integra, at least for the present, in view of the judgment made in Madurai Kamaraj University dated 16.08.2021 made in W.P.(MD) No.20502 of 2019 = 2021-TIOL-1812-HC-MAD-ST - Insofar as the objections raised by the respondents that the rental income derived by these Universities cannot be treated as educational services is concerned, that has also been dealt with separately in order dated 16.08.2021 [para 24 refers] - Therefore, the services rendered by the petitioner Universities by way of affiliation and allied activities including the conduct of examinations, awarding of degrees, diplomas etc., and also the income they derived from rent paid by the third parties like Postal Department, Banks etc., and also to run Canteen for the purpose of Students and Staff, were considered to be allied services attached with the educational activities undertaken by the Universities and, therefore, they are also exempted -Impugned SCN and O-in-O are set aside - Writ petitions in all respects are allowed: High Court [para 14 to 17]

- Petitions allowed: MADRAS HIGH COURT

2022-TIOL-493-CESTAT-DEL

Yogesh Kumar Vishnani Vs CC

Cus - The whole case of revenue is made out on allegation that appellant had arrived from Dubai at Ahmadabad Airport, which is Customs Station - For allegations contained in SCN, particularly, there being violation of baggage Rules, jurisdiction in matter was with Customs Commissionerate at Ahmadabad - Whole proceedings by Customs (Preventive) at Jaipur is wholly without jurisdiction - Appellant was intercepted by Police at Ajmer who are not the customs officers - The Supreme Court in case of Gianchand & others 2002-TIOL-2745-SC-CUS-CB , wherein also the initial interception and seizure was by police and thereafter the possession was shifted to Customs officers, it was held that the pre-requisite of seizure is not satisfied - Accordingly, it was held that in such circumstances, whole burden or onus to establish the smuggled nature of goods/gold is on revenue which have not been discharged - Admittedly, it is a case of town seizure - Following the ruling of Supreme Court in case of Ram Narayan Bishwanath , the proceedings are ab initio void, wholly holding without jurisdiction - The respondents Customs Authority is directed to return the seized/confiscated goods to appellant forthwith, within a period of 30 days: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-492-CESTAT-AHM

Wonder Packaging Industries Vs CCE & ST

CX - Interest - The Commissioner (A) vide impugned order held that appellant is entitled for interest only after three months from the date of application of refund, whereas the appellant is seeking interest right from the date of duty deposited during investigation - Appellant has deposited certain amount during investigation - They neither filed any claim nor refund application but because of demand which was dropped by Commissioner (A) only thereafter they filed refund claim - The Supreme Court in case of Ranbaxy Laboratories Limited 2011-TIOL-105-SC-CX held that interest on refund is payable only after three months from the date of application - Therefore, since the appellant's refund claim is sanctioned within three months no interest is accrued - Considering that the refund was sanctioned within three months from the date of application and the refund arose consequent to order of Commissioner (A), no interest is payable from date of deposit of duty during investigation - Accordingly, impugned order is upheld: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT