I-T - In order to be covered within second proviso to Sec 40(a)(ia), furnishing of certificate in prescribed form proving existence of conditions stated in first proviso to section 201(1), is sine qua non : ITAT

I-T - Arbitration award given to partner in lieu of relinquishment of certain rights and interests in assets which have no connection with assets of partnership firm, cannot be taxed u/s 28(iv): ITAT

I-T - Consideration paid for perpetual lease can reasonably include not only cost of construction of building but also cost of proportionate land: ITAT

I-T - Remuneration paid to Working Partner in cash within permissible limits as per section 40(b), cannot be disallowed u/s 40A(3): ITAT

I-T - Interest expenditure having no direct nexus with own funds and utilization for business purpose, calls for disallowance u/s 36(1)(iii): ITAT

2022-TIOL-663-ITAT-MUM

Ratilal And Sons Vs ITO

Whether remuneration paid to Working Partner in cash within permissible limits as per section 40(b), cannot be disallowed u/s 40A(3) - YES: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-662-ITAT-MUM

ACIT Vs Ramona Pinto

Whether arbitration award given to partner not on account of her retirement from firm, but in lieu of relinquishment of certain rights and interests in assets which have no connection with assets of partnership firm, cannot be taxed u/s 28(iv) - YES: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2022-TIOL-661-ITAT-MUM

Mohit Diamonds Pvt Ltd Vs DCIT

Whether consideration paid for perpetual lease can reasonably include not only cost of construction of building but also cost of proportionate land - YES: ITAT

- Assessee's appeal partly allowed: MUMBAI ITAT

2022-TIOL-660-ITAT-DEL

Matrix Cellular Services Pvt Ltd Vs DCIT

Whether interest expenditure having no direct nexus with own funds and utilization for business purpose, calls for disallowance u/s 36(1)(iii) - YES: ITAT

- Assessee's appeal dismissed: DELHI ITAT

2022-TIOL-659-ITAT-PUNE

ACIT Vs Silver Jubilee Motors Ltd

Whether on failure to deduct tax at source, disallowance which is otherwise required to be made, shall not be made, if payee has furnished his return taking into account such sum in his total income and paid tax due thereon along with furnishing certificate in prescribed form in this regard - YES: ITAT Whether in order to be covered within second proviso to Sec 40(a)(ia), furnishing of certificate in prescribed form proving existence of three conditions stated in first proviso to section 201(1), is sine qua non - YES: ITAT Whether when specific loan has been taken for purchasing an asset, notwithstanding the fact that assessee has sufficient interest-free funds, interest on such loan has to be disallowed within the ambit of proviso to section 36(1)(iii) - YES: ITAT

- Revenue's appeal partly allowed: PUNE ITAT

Cus - s.129E does not empower Tribunal or Commissioner (Appeals) to waive or reduce pre-deposit - Since mandatory requirement not fulfilled, Tribunal justified in dismissing appeal: HC

Cus - Waiver of rent / demurrage / detention charges beyond 60 days - Petitioner having accepted the guilt of mis-declaration of goods as well as quantity, no sympathy can be extended: HC

GST - A SCN has to be issued u/s 74(1) and after receiving objections, giving personal hearing, the assessment order ought to have been finalised - Procedure not followed - Orders set aside: HC

GST - Writ petition cannot be entertained ignoring the statutory dispensation - Alternate remedy available: HC

GST - Address on E-way bill mentioned as registered office of consignee at Jabalpur instead of factory location Rewa - Mistake being bonafide , invoking principle of parity, orders quashed and set aside: HC

2022-TIOL-893-HC-MAD-GST

Anantham Retail Pvt Ltd Vs State Tax Officer

Cus - Only issue to be decided is whether the petitioner would be entitled to seek for any waiver of demurrage or detention charges from the fourth and fifth respondents respectively in both the cases beyond 13.01.2022 and if so, whether such claim is justifiable within the meaning of the provisions of the Customs Act as well as the two Regulations, namely 2009 Regulations and 2018 Regulations.

Held: [38, 39, 47, 48, 51, 58, 59, 61, 64, 65, 69, 70]

+ Section 49(b) makes it clear that, in case of any imported dutiable goods, entered for warehousing, the customs authorities, if they are satisfied on the application of the importer that the goods cannot be removed for deposit in a warehouse within a reasonable time, the goods may be pending clearance or removal, as the case may be, permitted to be stored in a public warehouse for a period of not exceeding thirty days. + By invoking the said provision for storing the said goods, which were imported by the petitioner, in a public warehouse, the said permission order was passed by the Customs authorities on 13.01.2022.

+ Regulation 10(l) of 2018 Regulations also contain a similar provision that the authorised carrier under the Regulations shall not demand any container detention charges for the containers laden with the goods detained by customs for verifying the entries. However, a proviso is there in Regulation 10(l), which says that the authorised carrier may demand container detention charges for the period commencing after expiry of 60 days.

+ However, the definite case of the respondents 4 and 5 in both the cases was that, no doubt from 08.11.2021 to 13.01.2022, there was an advice by the authorities, i.e., from Customs for waiver of rent / demurrage / detention charges, however beyond 13.01.2022 absolutely there was no advice and no such advice in fact could have been given by the Customs authorities beyond 13.01.2022, because of the specific proviso contained in clause 10(l) of 2018 Regulations that, beyond 60 days, such kind of waiver cannot be made, hence the petitioner is liable to pay the rent, demurrage and detention charges from 14.01.2022.

+ It is to be noted that, since the maximum period of demurrage and detention charges waivers could be possible for 60 days, beyond which, there is no scope for such demurrage and detention charges waiver in view of proviso to Regulations 10(l) of 2018 Regulations, since the said two months period had already been given from 18.11.2021 to 13.01.2022, beyond 13.01.2022, the petitioner cannot seek for any such waiver for detention and demurrage charges.

+ Moreover in the permission letter, dated 13.01.2022, the customs authorities had made it clear that, for further extension of the waiver, the importer may make request with the Commissioner of Customs before the expiry of 30 days. But the fact remains that, even such request or application seems to have not been made by the petitioner within 30 days from 13.01.2022.

+ Petitioner having accepted the guilt of mis-declaration of the goods as well as the quantity, had paid the revised customs duty, penalty, redemption charges etc., to the extent of Rs.65 lakhs, whereas the original self-assessed duty of the goods imported on the part of the petitioner is only Rs.9 lakhs and odd. + Because of this attitude of the petitioner, there could be no sympathy on the part of the petitioner from any side, apart from the legal position discussed. Court is of the considered view that the claim made by the petitioner is untenable, hence, it is liable to be rejected.

+ It is open to the petitioner to have a private negotiation with fourth and fifth respondents in both the cases for giving any concession in the rent / demurrage / detention charges for the period from 14.01.2022.

- Petitions disposed of: MADRAS HIGH COURT

2022-TIOL-892-HC-MAD-GST

Progressive Stone Works Vs Joint Commissioner (ST)

GST - There is difference in the ITC claimed by the petitioner in its GSTR-2B and the information captured in the GSTR-2A as compared to the GSTR-1 of the supplier for the respective Assessment years - The demand has been worked out as Rs.8,21,123/- and Rs.3,53,519/- for the Assessment Year 2017-18 and Assessment Year 2018-19 respectively – Petitioner challenges the same. Held: Most of the difficulties faced in the implementation of GST law was/are on account of the technical glitches as returns and forms are system driven and returns are filed electronically - The information contained therein are supposed to get captured and auto populated at the end customer/recipient of goods or services - In case there is a glitch, it has to be corrected in accordance with the procedure prescribed and the guidelines and circulars issued by the Central Board of Indirect Taxes as Customs - In case, corrections and amendments in Form GSTR-1A of the recipient is not accepted by the supplier in its Form GSTR-1, the question of availing input tax credit on the strength of invoices alone is not enough - In case, the information is not corrected by the supplier in GSTR-1, the input tax credit availed by the recipient is liable to be paid back - Admittedly, the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007, therefore, this writ petition cannot be entertained ignoring the statutory dispensation - Writ petitions filed under Article 226 of the Constitution are liable to be dismissed: High Court [para 19, 27, 28, 32, 33]

- Petitions dismissed: MADRAS HIGH COURT

2022-TIOL-891-HC-MP-GST

Technosteel Infraprojects Pvt Ltd Vs State of Madhya Pradesh

GST - Address on the E-way bill was mentioned as registered office of the consignee at Jabalpur, instead of Rewa and thus, the Revenue Authorities initiated proceedings u/s 129 which ultimately resulted in passing of the order by which the liability of additional tax as well as penalty was imposed and the appeal against the said order was also dismissed – Challenge in the present petition to these orders. Held: Issue raised is already decided in Robbins Tunnelling and Trenchless Technology (India) Pvt. Ltd. = 2021-TIOL-442-HC-MP-GST - In view of the same and the mistake in question being bonafide , this Court invoking the principle of parity, directs that the impugned orders be quashed and set aside - Respondents will be at liberty to consider the case of the petitioner for imposition of a minor penalty, while treating the mistake in question, to be a clerical mistake as per Circular dated 14.09.2018 bearing No. CBEC/20/16/03/2017-GST - Writ petition stands allowed: High Court [para 6 to 8]

- Petition allowed: MADHYA PRADESH HIGH COURT

2022-TIOL-895-HC-MP-CUS

Ganesh Mankar Vs C, CE & ST

Cus - Section 129E does not empower the Tribunal or the Commissioner (Appeals) to waive the pre-deposit or to reduce the pre-deposit - Court is also not inclined, keeping in view the aforesaid statutory provision of law, to waive or reduce the pre-deposit - No case for interference is made out in the matter - As the mandatory requirement of pre-deposit as provided u/s 129E has not been fulfilled, the Tribunal was justified in dismissing the appeal - Appeal dismissed: High Court

- Appeal dismissed: MADHYA PRADESH HIGH COURT

2022-TIOL-894-HC-MAD-CUS

G K International Vs Pr.CC

Cus - Only issue to be decided is whether the petitioner would be entitled to seek for any waiver of demurrage or detention charges from the fourth and fifth respondents respectively in both the cases beyond 13.01.2022 and if so, whether such claim is justifiable within the meaning of the provisions of the Customs Act as well as the two Regulations, namely 2009 Regulations and 2018 Regulations. Held: [38, 39, 47, 48, 51, 58, 59, 61, 64, 65, 69, 70] + Section 49(b) makes it clear that, in case of any imported dutiable goods, entered for warehousing, the customs authorities, if they are satisfied on the application of the importer that the goods cannot be removed for deposit in a warehouse within a reasonable time, the goods may be pending clearance or removal, as the case may be, permitted to be stored in a public warehouse for a period of not exceeding thirty days. + By invoking the said provision for storing the said goods, which were imported by the petitioner, in a public warehouse, the said permission order was passed by the Customs authorities on 13.01.2022. + Regulation 10(l) of 2018 Regulations also contain a similar provision that the authorised carrier under the Regulations shall not demand any container detention charges for the containers laden with the goods detained by customs for verifying the entries. However, a proviso is there in Regulation 10(l), which says that the authorised carrier may demand container detention charges for the period commencing after expiry of 60 days. + However, the definite case of the respondents 4 and 5 in both the cases was that, no doubt from 08.11.2021 to 13.01.2022, there was an advice by the authorities, i.e., from Customs for waiver of rent / demurrage / detention charges, however beyond 13.01.2022 absolutely there was no advice and no such advice in fact could have been given by the Customs authorities beyond 13.01.2022, because of the specific proviso contained in clause 10(l) of 2018 Regulations that, beyond 60 days, such kind of waiver cannot be made, hence the petitioner is liable to pay the rent, demurrage and detention charges from 14.01.2022. + It is to be noted that, since the maximum period of demurrage and detention charges waivers could be possible for 60 days, beyond which, there is no scope for such demurrage and detention charges waiver in view of proviso to Regulations 10(l) of 2018 Regulations, since the said two months period had already been given from 18.11.2021 to 13.01.2022, beyond 13.01.2022, the petitioner cannot seek for any such waiver for detention and demurrage charges. + Moreover in the permission letter, dated 13.01.2022, the customs authorities had made it clear that, for further extension of the waiver, the importer may make request with the Commissioner of Customs before the expiry of 30 days. But the fact remains that, even such request or application seems to have not been made by the petitioner within 30 days from 13.01.2022. + Petitioner having accepted the guilt of mis-declaration of the goods as well as the quantity, had paid the revised customs duty, penalty, redemption charges etc., to the extent of Rs.65 lakhs, whereas the original self-assessed duty of the goods imported on the part of the petitioner is only Rs.9 lakhs and odd. + Because of this attitude of the petitioner, there could be no sympathy on the part of the petitioner from any side, apart from the legal position discussed. Court is of the considered view that the claim made by the petitioner is untenable, hence, it is liable to be rejected. + It is open to the petitioner to have a private negotiation with fourth and fifth respondents in both the cases for giving any concession in the rent / demurrage / detention charges for the period from 14.01.2022.

- Petitions disposed of: MADRAS HIGH COURT

2022-TIOL-539-CESTAT-AHM

Indian Oil Corporation Ltd Vs CCE & ST

CX - Appellant filed appeal before Supreme Court against order of Tribunal 2015-TIOL-1372-CESTAT-AHM - In terms of order of Supreme Court, review petition by way of Misc. Application was filed by appellant - As regard the first issue, whether the benefit of Notification No. 29/89-C.E. admissible to appellant, in said notification benefit was granted to Kerosene falling under Heading 27.10 of Schedule of CETA, 1985 intended for use in manufacture of liner alkyl benzene or heavy alkylate - Clearly the said notification is a conditional exemption notification, benefit of which is admissible subject to fulfillment of conditions - Adjudicating authority must decide and verify the matter first whether products of applicant can be considered as "Kerosene" for the purpose of exemption notification and thereafter, verify the use of products for manufacture of liner alkyl benzene/heavy alkylate - As far as imposition of penalty is concerned, it is a settled legal position that in cases where issue involved is classification dispute and interpretation of rules/law /exemption notification are involved, no penalty can be imposed - No penalty is imposable upon appellant under Rule 173Q of erstwhile Central Excise Rules, 1944 as the applicant has not violated any Rules/provisions with intention to evade payment of duty - It is only a matter of difference of opinion regarding classification of goods between applicant and by department - Therefore penalty is set aside - As regard demand of duty, matter is remanded to Adjudicating authority and on the matter of penalty under Rule 173Q ibid, same is set aside: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2022-TIOL-538-CESTAT-DEL

Baba Autolink Pvt Ltd Vs CCE & CGST

ST - The appellant is a dealer in automobiles and also provides after sale service - Issue involved is allegation of short-payment of service tax, non-payment of service tax on reverse charge basis, irregular availement of Cenvat credit and late fee imposed for late filing, non-filing of return, further Rs. 10,000/- have been imposed by way of penalty under Section 77(1) for failing to appear on the date fixed for hearing - Service tax is not attracted on receipt for replacement of parts received from manufacturing company - So far 'depot charges' are concerned, same are in the nature of renting of immovable property, or for use of space, accordingly this amount is held to be taxable - So far as repair and maintenance are concerned, there is no contract of service entered into with any particular service provider and amount has been incurred for repair and maintenance by way of petty expenses, most of them are below Rs. 1000/- - Accordingly, there is no service tax attracted on repair and maintenance expenses - So far imposition of penalty under Section 77(1) r/w Rule 7 is concerned, penalty of Rs. 84,000/- & Rs. 10,000/- have been imposed for late filing, non-filing of returns from the period April 2013 to June 2017 - Imposition of penalty under Section 77(1) is upheld, however, the amount of penalty is reduced in total to Rs. 25,000/- - So far the penalty of Rs. 10,000/- is concerned for not appearing on the date of hearing, it is found from the record of personal hearing in O-I-O, there is no specific default pointed out by adjudicating authority - Accordingly, this penalty is also set aside: CESTAT

- Appeal partly allowed: DELHI CESTAT