I-T - Re-assessment order passed without first considering assessee's reply in response to notice issued u/s 148 is unsustainable & more so when no reasoning is given by AO: HC

I-T - Power of revision rightly exercised where issue of disallowance of late payment of EPF beyond due date, has not been considered by AO : ITAT

I-T - Government Corporation like any other assessee cannot be allowed to plead preferential treatment to escape responsibilities of representing their case before tax authorities: ITAT

I-T - Merely on account of mistake in accounting treatment by mistakenly showing any sum under head 'loans and advances' instead of trade receivables', section 36(1)(iii) cannot be invoked: ITAT

I-T - If entire income as admitted by assessee is not proved, every expenditure incurred cannot be treated as unexplained income of assessee: ITAT

I-T - Tax shall be charged on income of trust at maximum marginal rate in pursuance to provisions of section 164(1): ITAT

2022-TIOL-844-HC-DEL-IT

Karida Real Estates Pvt Ltd Vs ACIT

In writ, the High Court observes that as the order and SCN were issued without considering the reply filed by the assessee, the same merit being set aside. The Court further directed the AO to pass fresh order in accordance with law after considering the reply filed by the assessee.

- Writ petition allowed: DELHI HIGH COURT

2022-TIOL-843-HC-DEL-IT

Baxter India Pvt Ltd Vs Addl./Joint/Deputy/ACIT/ITO/National Faceless Assessment Centre

Whether assessment order merits being set aside where it is passed by a non-jurisdictional AO, that too, without any reasons recorded for the same - YES: HC

- Matter remanded: DELHI HIGH COURT

2022-TIOL-841-HC-AHM-IT

Studio Virtues Vs ITO

Whether re-assessment order passed without first considering the replies furnished by the assessee in response to notice issued u/s 148, is sustainable & where no reasoning is given to justify these proceedings - NO: HC

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-601-ITAT-AHM

Jigar Ashok Hebra Vs ITO

Whether when entire income as admitted by assessee was not proved, every expenditure incurred cannot be treated as unexplained income of assessee - YES: ITAT

- Assessee's appeal partly allowed: AHMEDABAD ITAT

2022-TIOL-600-ITAT-CHD

H P Agro Industries Corporation Ltd Vs ITO

Whether bald unsupported excuses of blaming AR without first satisfying adjudicating authority that all necessary details for compliances are always provided to counsel, is requirement which cannot be summarily overlooked - YES: ITAT

Whether Government Corporation like any other assessee cannot be allowed to plead preferential treatment to escape responsibilities of representing their case before tax authorities - YES: ITAT

- Matter remanded: CHANDIGARH ITAT

GST - Rule 89(4) - ITC Refund - Mutatis Mutandis - Words tax and cess have to be used interchangeably - Domestic supply of finished goods which are not liable to Compensation Cess are to be reckoned as exempted supplies: HC

GST - Refund - Delay in receiving Certificate of export - Tax authorities are to adjudicate upon the tax liability in accordance with law - Matter remanded: HC

ST - Service tax cannot be imposed on the amount representing reimbursement of expenses like conveyance, travelling and mobile expenses : CESTAT

Cus - When there was an attempt to smuggle red sanders, it is incorrect to say that CHA is only liable under CBLR for such violations, matter has been correctly remanded for reconsideration: CESTAT

CX - The issue regarding sale being FOR basis has been raised for first time in Tribunal, matter needs to be re-examined by lower authorities and if sales are on FOR basis, benefit of Circular needs to be granted to appellant by allowing credit : CESTAT

CX - Since the appellant have supplied goods on FOR basis, price charged to customer is inclusive of insurance and freight and on such price, excise duty was charged, therefore credit is admissible : CESTAT

2022-TIOL-846-HC-KOL-GST

Electrosteel Castings Ltd Vs Assistant Commissioner

GST -   Circular No. 45/19/2018-GST , dated 30th May, 2018, was issued by CBIC in terms which it stood clarified that a registered person making zero rated supply of final products (which are not subject to Cess) under bond or LUT may claim refund of unutilized credit including that of compensation cess paid on coal -   Accordingly, the Assessee filed a claim of refund of ITC of Cess amounting to Rs. 3,74,54,166/- - The formula for refund of ITC in case of zero-rated supply of goods or services without payment of tax under LUT, as contained in Rule 89(4) of the CGST Rules categorically provides for exclusion of value of exempt supplies other than zero rated supplies while calculating adjusted total turnover. In computing the refund amount, the Assessee excluded supply of finished goods not subject to Cess and Non-GST turnover during the relevant period, while arriving at the adjusted total turnover - Net ITC amount was taken after reversal of Rs. ITC of Cess amounting to Rs.7,01,82,060/- - In spite of the aforesaid factual and legal position, only refund of Rs. 2,03,33,442/- was sanctioned by the CGST authority while refund claim of Rs.1,71,20,724/- was rejected by the refund sanction order dated 10th July, 2019 - The adjudicating authority computed the refund by adding the supply of finished goods not subject to Cess in the adjusted total turnover although the formula prescribed under Rule 89(4) of the CGST Rules categorically provides for exclusion of value of exempt supplies, in spite of the fact, that the Assessee had reversed ITC amounting to Rs.7,01,82,060/- on such supplies by treating the same as exempt supplies - The Appellate Authority by  its order dated 5 th  February, 2021, allowed the appeal of the assessee company and consequently, allowed refund of Rs. 1,71,20,724/- -  Being aggrieved by inaction and refusal on the part of CGST authority concerned in disbursing the refund amount of Rs.1,71,20,724/- with applicable interest as per the order dated 17th February, 2021, passed by the Appellate authority in spite of repeated request by it, it has made prayer for relief in the present Writ Petition by way of direction upon the CGST authorities concerned to refund the aforesaid amount of refund along with applicable interest to the assessee company - CGST authorities have also filed the instant Writ Petition challenging the aforesaid impugned order of the Appellate authority by making prayer for quashing of the aforesaid impugned order mainly on the ground that the same is perverse since the Appellate authority in the impugned order has not considered the definition of ‘non-taxable supply' as defined in the CGST Act, 2017 .

Held:   From legislative scheme of the Cess Act, it appears that the cess is an impost to counterbalance the loss of revenue of the States on account of subsumption of various taxes upon commencement of the GST regime - Hence, cess is a levy which partakes the character of all the levies, which now are subsumed in GST - Cess is akin to the components of GST, which is a constitutionally approved amalgam of State taxes, which existed prior to the commencement of the GST regime - The Goods and Services Tax Compensation Cess Rules, 2017 were also framed and made effective from 1st July, 2017 wherein the Central Goods and Services Tax Rules, 2017 were adapted - Having regard to the conscious use of the expression "mutatis mutandis" in Section 11 of the Cess Act all the provisions of CGST and IGST Acts would be squarely applicable to the levy, collection and refund of the Cess Act - The words tax and cess for the purpose of the Act would have to be used interchangeably -  Domestic supply of finished goods which are not liable to Compensation Cess are to be reckoned as exempted supplies for the purpose of calculation of refund in terms of Rule 89(4) of the CGST Rules - Section 2 (47) of the CGST Act defines "exempt supply" as supply of any goods or services or both which attracts nil rate of tax or which may be wholly exempt from tax under Section 11, or under Section 6 of the Integrated Goods and Services Tax Act, 2017 and includes non-taxable supply - Thus, finished goods supplied by the Assessee domestically which attract nil rate of Cess in term of Sl. No. 56 of the said Notification should be construed as exempt supplies and is, therefore, required to be excluded from adjusted total turnover for the purpose of computation of refund of ITC of Cess in terms of Rule 89(4) of the CGST Rules -  Applying the ratio of the judgments discussing the term "mutatis mutandis", it would be clear that goods which are subject to nil rate of cess would be construed as exempt supplies for purposes of the formula prescribed in Rule 89(4) of the CGST Rules and, therefore, deserves to be excluded from the calculation of adjusted total turnover - Accordingly the writ petition being WPA No. 17567 of 2021 filed by the CGST authority against impugned order of the Appellate authority dated 5th February, 2021 is dismissed and consequently Writ Petition being WPA No. 12676 of 2021 filed by the assessee company is disposed of by allowing the same - Action of withholding of the petitioner/assessee's claim of refund in question by the respondent CGST authority and not refunding the same to the petitioner in spite of the order of the Appellate authority holding such claim in favour of the assessee company/petitioner is arbitrary and unjustified - CGST authorities concerned are directed to refund the amount as per the aforesaid order of the Appellate authority along with applicable interest till the date of such payment, within eight weeks: High Court

- Revenue appeal dismissed/Assessee appeal disposed of: CALCUTTA HIGH COURT

2022-TIOL-845-HC-KOL-GST

SN Trading Vs Asstt. Commissioner of ST

GST - Appeal filed against order dated 9th February 2022 passed in WPA No. 1745 of 2021 - Order rejecting Refund was passed on 3rd May 2021 and subsequent thereto the Certificate of Export was received on 25 August 2021 - Petitioner submits that the tax authorities cannot derive undue benefit of circumstances which are beyond the control of the appellant.

Held: The appellant/writ petitioner is not at all fault in not receiving the document dated August 25, 2021 that the appellant/writ petitioner seeks to place before the revisional authority - It is not a case that the appellant/writ petitioner was in possession of certain documents which the appellant/writ petitioner did not place before the revisional authority - Rather, it is a case where the appellant/writ petitioner received a document subsequent to the order of the revisional authority -  Tax authorities are to adjudicate upon the tax liability in accordance with law - Another opportunity should be granted to the appellant/writ petitioner to place the document dated August 25, 2021 before the revisional authority - Revisional authority is requested to reconsider its order passed on refund taking into account the document dated August 25, 2021 in accordance with law - Appeal disposed of: High Court 

- Appeal disposed of: CALCUTTA HIGH COURT

2022-TIOL-842-HC-KAR-CUS

CC Vs Ashirvad Agro Processors

Cus - The Revenue filed the present appeal to contest findings of the CESTAT in holding that a limitation of one year to claim refund of Special Additional Duty imposed vide Notification No. 93/2008-Customs, dated 01.08.2008 cannot be used to impose a limitation period on the right to claim refund of Special Additional Duty - The Revenue also raised the issue whether Notification No. 102/2007-Customs, dated 14.09.2007 and the amending Notification No. 93/2008-Customs, dated -01.08.2008 issued under sub-section (1) of Section 25 of the Customs Act, 1962, have the standing and statutory backing to prescribe limitation for claiming refund.

Held - To a specific query made by this Court with regard to the decision of this Court in Commissioner of Customs Vs. M/s Octel Networks Pvt. Ltd. CSTA No. 6/2020 decided on December 3, 2021 holding that Section 27 nor a Notification under Section 25(1) of the Customs Act can be used to impose a limitation and deprive the right to claim refund, Standing Counsel submitted that the said issue is pending before the Supreme Court in Commissioner of Customs (Import) Vs. M/s Gulati Sales Corporation Special leave to Appeal (c) No. 4820/2018 - Thus the issues raised are answered in favor of the assessee and against the Revenue: HC

- Revenue's appeal dismissed: KARNATAKA HIGH COURT

2022-TIOL-506-CESTAT-DEL

RMA And Associates Vs Pr.CST

ST - The appellant was engaged in providing "chartered accountant services" - Dispute is regarding non-payment of service tax on the amount representing reimbursement of expenses like conveyance, travelling and mobile expenses - The issue, in respect of reimbursable expenses has been considered and decided by Supreme Court in Intercontinental Consultant and technocrats 2018-TIOL-76-SC-ST - Thus, service tax could not have been levied on reimbursed expenses - The order passed by Commissioner (Appeals), therefore, cannot be sustained, same is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2022-TIOL-505-CESTAT-MAD

Behag Overseas Vs CC

Cus - Large number of red coloured wooden logs found stacked in entire container and the declared cargo was not to be found - A mahazar was prepared and forest officers were informed who conducted inspection of wooden logs and reported them to be 'red sanders' - SCN under Section 124 of Customs Act, 1962 was issued to various persons including appellant (Customs Broker), who had filed shipping bill for export of consignment - Date of O-I-O is 31.05.2019, date of dispatch is shown as 03.06.2019 - Appellant contends that department would have received it on the same date and therefore the review order passed on 03.09.2019 is beyond 3 months - They have not adduced any evidence to show that the department has received the order passed by Adjudicating Authority either on 31.05.2019 or on 03.06.2019 - This Bench directed the department to produce evidence as to the date on which they have received the order passed by adjudicating authority - An affidavit was filed by Asst. Commissioner (Review Cell), stating that Review Cell has received the order only on 17.06.2019 - There is nothing to establish contrary to this affidavit filed by Review Cell - Review order passed on 03.09.2019 is well within time - Consequently, appeal filed by department is also within the prescribed time limit - In any case, it is also necessary to state that proviso to sub-section (3) says that on sufficient cause being shown, period can be extended by another 30 days on filing an application to condone the delay - The Commissioner (Appeals) has set aside the order passed by adjudicating authority and remanded the matter to look into the issue of imposing penalty under Section 114(i) of Customs Act, 1962 - The High Court in case of Sri Rama Thenna Thayalan 2021-TIOL-2269-HC-MAD-CUS had an occasion to consider similar set of facts wherein there was an attempt to smuggle red sanders and it was held that it is incorrect to say that CHA is only liable under CBLR for such violations - The view taken by Commissioner (Appeals) that the matter has to be remanded for reconsideration does not require any interference - Impugned order is upheld: CESTAT

- Appeal dismissed: CHENNAI CESTAT

2022-TIOL-504-CESTAT-AHM

R R Kabel Ltd Vs CCE & ST

CX - The issue involved is, if the appellants are entitled to cenvat credit of GTA services availed in respect of goods supplied by them from their premises to buyers' premises - It is the claim of appellants that the goods have been sold on FOR basis - The issue regarding the sale being FOR basis has been raised for first time in Tribunal - In terms of Circular No. 988/12/2014-CX , matter needs to be re-examined by lower authorities and if the sales are on FOR basis, benefit of Circular needs to be granted to appellant by allowing the credit: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2022-TIOL-503-CESTAT-AHM

PVN Fabrics Pvt Ltd Vs CCE & ST

CX - The issue involved is that whether appellant is entitled for cenvat credit in respect of outward transportation - Lower authorities have denied cenvat credit on outward transportation only on the basis of Supreme Court judgement in case of Ultratech Cement 2018-TIOL-42-SC-CX - However, subsequent to this Apex Court judgement, Tribunal considering the issue of Cenvat on outward transportation in case of Ultratech Cement and Sanghi Industries 2019-TIOL-1709-CESTAT-AHM held that cenvat credit is admissible, relying on Board Circular which was issued subsequent to Supreme Court judgement - This subsequent development on the legal issue has not been considered by lower authorities - The documents shown by appellant such as purchase orders, invoices, Chartered Accountant Certificate clearly shows that the prices are FOR price which is inclusive of freight and Insurance and on such price excise duty was charged, if it is so, then the appellant shall be entitled for cenvat credit, in view of judgement in case of Ultratech Cement and Sanghi Industries which was upheld by Jurisdictional Gujarat High Court, however, the facts regarding FOR price and sale of goods have not been properly verified by lower authorities, therefore, matter is remanded to original authority: CESTAT

- Matter remanded: AHMEDABAD CESTAT