I-T - Pre-operative expenditure cannot be allowed as business expenditure, if company has not at all completed set up of business so as to commercially starts its operation: ITAT

I-T - Addition of spare parts & tools which are not independent of plant & machinery, but are parts of machinery, can be treated as installation of plant and machinery so as to claim additional depreciation: ITAT

I-T - Since resolution plan as approved by Adjudicating Authority shall be binding on corporate debtor, it will prevent Regulatory bodies including Tax Departments from questioning resolution plan: ITAT

I-T - AO can be said to have exceeded his jurisdiction, if he treats closing cash in hand as income from undisclosed sources which was not mandated under 'limited scrutiny' notice issued u/s 143(2): ITAT

I-T - Additions framed u/s 68 upheld where assessee is unable to establish reasonableness of share premium received vis-a-vis fair market value of shares : ITAT

I-T - Substantial reasons for non appearance cannot be overruled while passing ex-parte order: ITAT

I-T- Penalty u/s 271E can not be imposed based on vague and non-descript loose papers : ITAT

2022-TIOL-609-ITAT-MUM

Raykan Beverages Pvt Ltd Vs DCIT

Whether additions framed u/s 56(2)(viib) are valid where the computation of assessee's share premium is devoid of any basis - YES: ITAT

Whether additions framed u/s 68 merit being sustained where the assessee is unable to establish the reasonableness of the share premium received vis-a-vis the fair market value of shares - YES: ITAT

- Stay application dismissed: MUMBAI ITAT

2022-TIOL-608-ITAT-MUM

Logi Io Technologies Pvt Ltd Vs ITO

Whether substantial reasons for non appearance can be overruled while passing ex-parte order - NO: ITAT

- Matter remanded: MUMBAI ITAT

2022-TIOL-607-ITAT-MUM

Heena Parag Chheda Vs ACIT

Whether lower interest received on loan given to related party for business purpose cannot be subjected to sec 40A(2)(b) as AO fails to prove by any comparable case or comparison by market rate that amount paid is excessive - YES : ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-606-ITAT-MUM

DCIT Vs Global Softech Ltd

Whether since resolution plan as approved by Adjudicating Authority shall be binding on corporate debtor, it will prevent Regulatory bodies including Tax Departments from questioning resolution plan - YES: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2022-TIOL-605-ITAT-DEL

Mohit Singh Vs JCIT

Whether penalty u/s 271E can not be imposed based on vague and non-descript loose papers - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

Cus - It is not for AA to conclude in advance whether cross-examination would be helpful or not - Petitioner entitled to cross-examine even if material available is too little: HC

Cus - When principles of natural justice are violated, doors of Court cannot be closed on the ground of availability of alternate efficacious remedy: HC

ST - SVLDRS - Respondent should not take a pedantic approach but keep in mind purpose behind introducing scheme - Verifying truthfulness of claim would not amount to disposing appeal: HC

GST - Revenue informs that provisional attachment order was reviewed and attachment for further period was approved, however, no such order placed on record - Provisional attachment of bank account cannot survive beyond one year: HC

GST - Upon deposit of 10% of disputed tax amount during pendency of appeals, recovery of any remaining balance is deemed to have to been stayed - Garnishee proceeding, therefore, has become infructuous: HC

GST - Refund of unutilised tax credit - When services are rendered abroad, CGST will not apply - Respondent could not establish that incidence of tax has been passed on to recipient - No unjust enrichment: HC

GST - No notice issued u/s 129, therefore, act of Revenue in insisting that petitioner retain vehicle at the location where it was intercepted is gross contravention of statutory provisions: HC

2022-TIOL-852-HC-TELANGANA -GST

Rahul Aggarwal And Kumari Vaanya Aggarwal Vs CCT

GST - Petitioners seek quashing of the letter/intimation dated 09.02.2021 provisionally attaching their bank account.

Held:  It is seen that the order of provisional attachment is dated  09.02.2021 and one year has already expired -  Though a statement has been made in the counter affidavit that the provisional attachment was reviewed by the Commissioner on 11.03.2022 whereafter such attachment for further period was approved, no such order has been placed on record - In any case, Sub-Section (2) of Section 83 of the CGST Act is very clear - Every provisional attachment made under sub-section (1) of Section 83 of the CGST Act shall cease to have effect after expiry of a period of one year from the date of the order made under sub-section (1) of Section 83 of the CGST Act - This being the position, Bench is of the considered opinion that continuance of the impugned order dated 09.02.2021 of provisional attachment cannot be sustained - Same is accordingly quashed and set aside - Respondents are directed to forthwith de-attach the bank account of the petitioners - Petition disposed of: High Court [para 7, 8]

- Petition disposed of: TELANGANA HIGH COURT

2022-TIOL-851-HC-JHARKHAND-GST

Sri Ram Construction Vs UoI

GST - Petition has been preferred inter alia for quashing the notice dated 24.07.2020 issued u/s 79 wherein without carrying any adjudication process, garnishee notice has been issued to the petitioner's bankers for alleged recovery of government dues amounting to Rs. 4,28,86,454/- - Meanwhile, two separate adjudication orders were passed in respect of the subject matter of the dispute and Petitioner has filed two appeals and deposited 10% of the amount of demand in terms of section 107 of CGST Act, 2017 and in terms of sub-sections (6) & (7) of Section 107 of CGST Act, 2017, recovery of the balance amount is deemed to have been stayed - Counsel for Respondent Revenue does not dispute that in such an event (of deposit of 10% of the amount of demand), Garnishee notice arising out of the adjudication order cannot be given effect to.

Held: Upon deposit of 10% of the disputed tax amount during pendency of two appeals preferred by the petitioner, recovery of any remaining balance is deemed to have to been stayed in view of sub-sections (6) and (7) of Section 107 of CGST Act, 2017 - The impugned Garnishee proceeding therefore, cannot be given effect to and in fact has become infructuous - Any fresh demand arising out of the decision of the Appellate Authority can be realized by issuance of GST APL-04 - As such, there is no purpose in keeping the writ petition pending and, therefore, it is disposed of as infructuous: High Court [para 7]

- Petition disposed of: JHARKHAND HIGH COURT

2022-TIOL-850-HC-MUM-GST

Jar Productions Pvt Ltd Vs UoI

GST - Petitioner is engaged in providing production services to 'A Suitable Company Ltd' located in London United Kingdom (U.K.) - Writ petition is preferred against the order whereby the claims of refund have been rejected on the ground that the incidence of tax has been passed on to the client, i.e., ASCL resulting into unjust enrichment of the petitioner.

Held : It is axiomatic that the respondents don't dispute that the Petitioner is entitled to the refund of GST, but their only contention is that the Petitioner has passed on the incidence of tax to the recipient company and on account of that the Petitioner is not entitled to claim refund - It is not in dispute that the Petitioner is exporting the services to the ASCL - Refund of unutilised tax credit shall be allowed in cases of zero rated supply (section 54(3) refers) - Section 54(8)(e) of the CGST Act states refund cannot be claimed when incidence of tax has been passed on to the recipient or any other person - Agreement executed between the petitioner and the ASCL shows that the approved production budget includes all costs in connection with the production services including the amount of Indian Goods and Services Tax Act - Clause 4.10 of the agreement shows that if the amount of GST is refunded, then the same will be deducted from the total cost in connection with the production services and this clearly shows that the incidence of tax has not been passed to the recipient ASCL - Court [in Motilal Oswal Securities Ltd 2017-TIOL-244-CESTAT-MUM ] relying on the Apex court judgment [in All India Federation of Tax Practitioners 2007-TIOL-149-SC-ST ] held that when services are rendered abroad, CGST will not apply - In the case at hand also, the petitioner has rendered services to the ASCL abroad i.e. in U.K, therefore, GST does not apply to the services rendered abroad as they amount to the export of services - In addition to that the respondent could not establish that the incidence of tax has been passed on to the recipient ASCL located in London - Thus, both, the Adjudicating Authority and the Appellate Authority committed error in rejecting the refund of GST of the petitioner - Therefore, orders of both the authorities cannot be sustained and need to be set aside - Impugned orders are set aside and petition is allowed: High Court [para 13, 16, 17, 19, 20, 22]

- Petition allowed: BOMBAY HIGH COURT

2022-TIOL-849-HC-MAD-GST

LAF Enterprises Vs CCT

GST - Petitioner states that it was in the process of transporting Iron Scrap from Guwahati to Coimbatore; that on 29.05.2022, the vehicle carrying the consignment suffered a mechanical problem and as a result that the driver was forced to deviate to identify a service shop for addressing the issue - Vehicle had been stationed at Sri Veeraragavar service station when it was intercepted (on 30.05.2022) at Sholavaram by the Roving squad and who alleged that the goods were being re-routed without proper e-way bill - Goods and  vehicle seized/detained - Petition filed seeking release.

Held: In the present case, admittedly, no notice u/s 129 of the Act  has been issued till date though the seizure has been effected as early as on 30.05.2022 - In the aforesaid circumstances, the act of the respondent in insisting that the petitioner retain the vehicle at the present location is in gross contravention of the statutory provisions - Petitioner thus succeeds and is entitled to the relief sought - Mandamus as sought for is issued to R2 to release the conveyance in question along with the goods contained, forthwith and in any event, within 24 hours - Petition allowed: High Court [para 7, 8]

- Petition allowed: MADRAS HIGH COURT

2022-TIOL-854-HC-MUM -CUS

Sameer Shah Vs UoI

Cus - Petitioner is seeking the quashing of the order dated 8th May, 2020 passed by the Respondent No. 2 whereby the appeal of the petitioner has been dismissed.

Held: It is not in dispute that except Naishad B. Kapadia, no other witness has stated anything in their statements against the Petitioner - Cross-examination of Naishad B. Kapadia only is relevant as evidence/statement is relied against the Petitioner - The Petitioner is entitled to cross-examine the witness even if the material available against the Petitioner in the said statement is too little - Respondent has simply declined the permission to cross-examine the witness Naishad Kapadia and other witnesses only on the ground that it will not shed any further light - It is not for the authority to conclude in advance whether the cross-examination would be helpful or not or nothing fruitful would be elicited in cross-examination - Without cross-examining the witness it is impermissible for the Authority to say that no fresh light will be shed - This approach of Respondent No. 2 is not correct - It is true that alternative remedy of appeal to the Appellate Tribunal under section 127A of the Customs Act, 1962 is available to the petitioner - However, when the principles of natural justice are violated, doors of this Court cannot be closed for the Petitioner on the ground of availability of alternate efficacious remedy - Bench deems it appropriate to set aside the impugned order and remand the matter to the Respondent No. 2 for deciding afresh with the directions that respondent No. 2 shall permit the Petitioner to cross-examine the witness Naishad B. Kapadia - Petition allowed: High Court [para 11, 12]

- Petition allowed: BOMBAY HIGH COURT

2022-TIOL-853-HC-MUM -ST

Quant Broking Pvt Ltd Vs UoI

ST - SVLDRS, 2019 - According to the petitioner, declaration has been accepted but respondents have not given credit to certain amounts which, according to petitioner, has been paid; that if such credit has been given, there will be no further amount payable by petitioner and in fact there will be surplus amount with the Government, which Government need not refund by virtue of Section 124 of the Finance Act - However, respondent no. 3 gave credit of only Rs.2,39,66,528/- as paid by petitioner and declared that petitioner was to pay the balance amount of Rs. 3,25,20,936/- - Therefore, the present petition.

Held : Obligation of respondent no. 3 is to verify the truth or truthfulness of the declaration made by petitioner - Respondent no.3 ought to have verified the truthfulness of petitioner's statement whether the amount of Rs. 5,37,25,305/- by reversal of credit in service tax returns was correct - By verifying this truthfulness would not amount to disposing or hearing the appeal filed by petitioner on merits - Respondent no. 3 should not take such pedantic approach and should keep in mind the purpose behind introducing the scheme, i.e., liquidation of past disputes so that the business can move ahead and the tax administration can also focus on the smooth implementation of the goods and services tax - Order quashed and set aside - Respondent no. 3 is directed to consider all documents and records submitted by petitioner including proof of payment of Rs. 5,37,25,305/- along with records available with the department and issue a fresh statement under Section 127 of the Finance Act - Petition disposed of: High Court [para 13, 14]

- Petition disposed of: BOMBAY HIGH COURT

2022-TIOL-507-CESTAT-DEL

Bhiwadi Rolling Mills Pvt Ltd Vs CCGST

CX - Appeal filed against imposition of penalty under Rule 26 of Central Excise Rules, 2002 - Pursuant to search and seizure in premises of appellant, certain incriminating records were recovered relating to period May, 2011 to September, 2012 to August, 2014 - On the basis of incriminating records during search, Director of appellant admitted that they have also been receiving certain input from other manufacturers without proper bills and/or without payment of duty, and they have also been clearing certain output /finished goods without payment of duty - SCN was issued to appellant demanding excise duty alongwith interest and penalty - Appellant have settled their dispute for same period under SVLDR Scheme, 2019 - Further, for same period, in appeal of supplier M/s Shree Balaji Furnaces Pvt. Ltd., this Tribunal had allowed their appeal holding that there is insufficient evidence with respect to allegations - Accordingly, it is fit and proper to set aside the penalty under Rule 26 of Central Excise Rules, 2002 : CESTAT

- Appeal allowed: DELHI CESTAT