2022-TIOL-703-ITAT-DEL

DCIT Vs Gautam Credits Pvt Ltd

On appeal, the Tribunal observes that the counsel for the Revenue was not able to point out any mistake in the order passed by the CIT (A) in respect of assessment for the relevant AY. Hence the Tribunal finds no reason to interfere with the findings of the CIT (A).

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-702-ITAT-PUNE

K D Construction Vs ITO

Whether where assessee did not earn any actual rental income from letting out of flats, AO can tax hypothetical income of rent, which is otherwise not covered under any provision of Chapter IV-D of I-T Act - NO: ITAT

- Assessee's appeal allowed: PUNE ITAT

2022-TIOL-701-ITAT-AHM

JCIT Vs Divya Jyoti Trust

Whether capital expenditure incurred out of corpus fund can be allowed - YES : ITAT

- Revenue's appeal dismissed: AHMEDABAD ITAT

2022-TIOL-81-AAR-GST

Kothari Sugars And Chemicals Ltd

GST - Applicant has sought to know as to whether recovery of nominal amount from the employees for making payment to the third-partyservice provider, providing food in canteen as mandated in the Factories Act, 1948 would attracttax under GST? Held: In the instant case, the Canteenfacility is provided by the applicant in both their units in accordance with the mandate under theFactories Act, 1948 - The applicant collects a nominal amount fixed as employee cost in respect of thefood consumed by such employee, therefore, the contention that the activity of supply of food for anominal charge by them is neither a supply of goods nor a supply of service is not legally tenable - In the case at hand, establishing a canteen facility in the units is an activity incident to the running oftheir business - Factory Act mandates establishing canteen, bearing certain mandatory costs inrunning of the canteen by the employer inasmuch as the number of workers 'ordinarily employed'(workers & contract labourers) are above 250 per unit, which is the case in hand - Accordingly, the applicant has established the canteen in their premises and bearscertain running cost while collecting the nominal rate as fixed by the Managing Committee, which is anactivity in furtherance of their business – As per the definition in Section 2(83) of the CGST Act,2017, supply made by a taxable person in the course or furtherance of business is an 'Outward supply' -It has been brought out that establishing canteen is in the furtherance of business of theapplicant and supply of food to the employees when the same is not contractually agreed, is not anallowance as a part of the employment - Thus, the provision of food in the canteen for a nominal cost isa 'Supply' for the purposes of GST - Schedule II to the CGST Act, 2017 describes the activities to betreated as supply of goods or supply of services - The supply of food by the employer i.e. theapplicant to their employees is composite supply of food held as 'Supply of service' as per Schedule-IIof the GST Act and the amount collected by the applicant is a 'Consideration' on which GST is liable tobe paid -The supply of food by the applicant is 'Supply of Service' by the applicant to theiremployees as the same is not a part of the employment contract and the canteen facility is provided asmandated under Factories Act - The nominal cost, which is recovered from the salary as deferredpayment is 'consideration' for the supply and GST is liable to be paid - Therefore, recovery of nominal amount from the employees for making payment to the thirdpartyservice provider, providing food in canteen as mandated in the Factories Act, 1948 would attracttax under GST: AAR

- Application disposed of: AAR

2022-TIOL-80-AAR-GST

Cummins India Ltd

GST - Applicant undertakes activity of overhaul & repair of engines which involves the customer sending engines/equipment to the Applicant who is required to render variousservices and supply different parts/sub-assemblies to its customers - The arrangement is usually comprehensive and involves supply of goods and services - Applicant is contemplating entering into agreement with ONGC for overhaul & repair ofengines & sub-assemblies in respect of diesel or gas engines of varied sizes/capacity - Applicant is of the view that overhaul & repair activity covered i.e. major overhaul as also overhaul /repair of sub-assemblies is a composite supply,wherein the principal supply is that of service - Resultantly, rate of tax applicable to services i.e. 18% would be applicable to all supplies under present arrangement (tender) - Applicant has sought an advance ruling in this regard. Held: It is clearly seen that the Tender conditions visualize a supply of goods as well as supply of services - The applicant opines that the impugned supply is a 'composite supply' where the principal supply is 'supply of service' and, therefore, according to the applicant, GST will be leviable on the impugned supply at 18% being the rate of tax on the principal supply - Applicant has itself stated that the impugned supply can be sub-divided into 4 types of supplies out of which it wants this Authority to consider only 2 types of supplies for decision - In other words, it means that the supply under the impugned Tender cannot be considered as a single composite supply of goods and services or both which are naturally bundled because the applicant itself has divided the Tender into 4 different supplies - Such division of the single Tender to answer particular situations and ignore other situations will not be the right way to go forward and, therefore, this Authority will not be able to answer the questions raised by the applicant - Hence the questions raised by the applicant in respect of activity mentioned in "C" and 'D" of the Table are not being answered: AAR

- Application rejected: AAR

2022-TIOL-936-HC-MAD-ST

Redington India Ltd Vs Pr.Addl. Director General

ST - Writ Petitions have been inter alia filed against the impugned SCNs issued by the ADG, Directorate of GST Intelligence of the respective Zonal Units and Principal ADG, DGSTI, Chennai Zonal Unit and ADG, DGSTI (Hqrs.), New Delhi - Writ Petitions have also been filed against the impugned Orders-in-Original passed by the Adjudicating Authority.

Held:

++ Reasoning of the Supreme Court in  Commissioner v. Sayed Ali =  2011-TIOL-20-SC-CUS and in Canon India Pvt Ltd =  2021-TIOL-123-SC-CUS-LB  cannot be imported in the context of the Central Excise Act, 1944 and/or The Finance Act, 1994; without doubt, the officers from the Directorate of Central Excise Intelligence are "Central Excise Officers" as they have been vested with the powers of central excise officers.

++ Definition of "Central Excise Officer" in Section 2(b) of the Central Excise Act, 1944 was made applicable for Section 73 of Chapter V of the Finance Act, 1994 which prescribes a machinery for recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded.

++ Under Rule 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the "local limits". However, that would not mean that the officers of "Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence]" who are already "Central Excise Officers" under Notification  No. 38/2001-C.E. (N.T) , dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No. 22/2014-ST dated 6.09.2014 is to be read in conjunction with Notification No. 38/2001- C.E. (N.T) , dated 26.06.2001; therefore, the argument of the petitioners that the officer of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] is not "Central Excise Officer" and cannot exercise function Pan India cannot be accepted.

++ No restriction can be inferred on the powers of the Board while appointing the officers of the Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] to act as "Central Excise Officers"; therefore, it cannot be said that the officers who have been vested with the powers under the impugned Notification No. 22/2014-S.T., dated 06.09.2014, are not the "Central Excise Officers".

++ As far as challenge to impugned show cause notices on the ground that they have been issued contrary to the C.B.E. & C. Master Circular  No. 1053/2/2017-CX , dated 10-3-2017, Bench is of the view that merely because there was no pre-consultation as per the said circular, it cannot be said that the proceedings are bad. Master Circular is intended to only facilitate the defaulting assessee to come forward to pay the amount so that the department is not burdened with show cause proceedings.These circulars are neither binding on the Court [ RATTAN MELTING AND WIRE INDUSTRIES =  2008-TIOL-194-SC-CX-CB refers] nor are contemplated under the provisions of the Finance Act, 1994.Therefore, show cause proceedings initiated under Section 73 of the Finance Act, 1994 seeking to demand tax which was allegedly not paid cannot be allowed to be scuttled in the light of the above circular. No merits in the challenge to the impugned show cause notice/Order in Original. [para 189, 190, 192, 195 to 200]

CONCLUSION:

++ Challenge to the proceedings which have been impugned on the ground of limitation etc, involves disputed questions of facts. Therefore, these issues are best left to be adjudicated by the Central Excise Officer. [para 202]

++ As long as the SCNs have been issued by a competent officer under the Finance Act, 1994 read with relevant notification, challenge to the proceeding based on the alleged failure to follow the circular cannot be countenanced. Issues touching on the merits are best left to be decided by the adjudicating authorities and appellate authorities in the hierarchy of the authorities under the Act.Therefore, there is no merits in these present writ petitions. [para 203, 204]

++ Challenge to impugned Notification No. 22/2014-ST dated 16.09.2014 fail and, therefore, these writ petitions are dismissed. [para 205]

- Petitions dismissed/disposed of: MADRAS HIGH COURT