2022-TIOL-765-ITAT-DEL

Unified Infrastructure Pvt Ltd Vs ACIT

Whether scope of proceedings u/s 153A had to be confined only to material found in course of search and not to unabated assessment - YES: ITAT

- Assessee's appeals allowed: DELHI ITAT

2022-TIOL-764-ITAT-DEL

India Safari And Tours Ltd Vs DCIT

Whether Explanation-1 to Section 32 would be applicable to expenditure incurred in relation to renovation of leasehold premises if they are not related to building construction material - NO: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-763-ITAT-DEL

ACIT Vs Escort Heart Institute And Research Centre Ltd

Whether the provisions of Section 194J are applicable to a hospital, rather than those of Section 192, in respect of TDS deduction on fee paid to doctors engaged as retainers & consultants - YES: ITAT Whether a contract for service and a contract of service are distinct from each other - YES: ITAT

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-984-HC-MAD-GST

Gemini Coach Builders Vs UoI

GST - Petition has been filed to quash the impugned notice of the fourth respondent dated 29.03.2022. Held: Petitioner has not only received the show cause notice but also, earlier the petitioner was issued with summons and thereafter only DRC-01A has been issued, intimating the tax ascertained as being payable - Now, the show cause notice has been issued, for which, the petitioner has to give reply and thereafter personal hearing would be given, where he can make his submissions along with supporting documents, thereafter only order in original would be passed and it is the procedure as contemplated under law - Hence, this Court is not inclined to entertain the petition - Petition stands dismissed: High Court [para 5, 6]

- Petition dismissed: MADRAS HIGH COURT

2022-TIOL-983-HC-MAD-GST

TVL Rashtriya Ispat Nigam Ltd Vs DCCT

CST/GST - Petitioner was assessed under both TNVAT and CST Acts and for the period 2015-16 had claimed concessional rate of tax @2% - An Audit was conducted in August 2016 when the petitioner was unable to substantiate its claim of concessional levy to the fullest extent as claimed, therefore, they deposited Rs.40 lakhs towards non-availability of a portion of the C-Form as on the date of audit - upon passing the order of assessment, the excess of tax was adjusted for the period until 30.06.2017 leaving an amount of Rs.11,94,312/- as credit balance - upon inception of the TN GST Act, 2017, the petitioner became entitled to the credit of the amount determined as excess, being Rs.11,94,312/- - section 140 the Act, 2017 lays an embargo against the availment of credit where such credit is attributable to a claim under the CST Act and provides only a refund of the amount - accordingly, petitioner made a request before the Deputy Commissioner seeking refund of the amount in question but was not acted upon, therefore, when extension of time was granted for filing TRAN-1, they filed one claiming the refund as credit carried forward - I mpugned order has come to be passed by the respondent who, vide a show cause notice, had initially proposed to reject the transition of the ITC and confirmed the proposal holding the petitioner liable to penalty for wrongful transition, ineligible credit as well as interest from 27.12.2017 till date of order for such ineligible claim - This order is being challenged in this writ petition. Held: Bench is of the categoric view that the petitioner must succeed in the facts and  circumstances of the case - P etitioners' request for refund has been made as early as on 19.07.2017 - Motives of the petitioner are found to be bonafide in law, since it not only asks for a refund but also states that it is not entitled for transition under GST laws - Admittedly, the respondent has sat tight on the petitioners' request - The petitioner is entitled to the claim for refund, prima facie , as evidenced by order dated 30.12.2016 of the first respondent wherein the amount in question has been determined as excess payment and there is no dispute raised in this regard - Thus, while the filing of a TRAN-1 is clearly misconceived, the petitioner is protected by the intention to protect its claim for refund in the face of the unjustified, and admitted delay on the part of the respondents - That apart, the provisions of Section 74 would be applicable only in the case of wrongful availment/utilization of ITC by reason of fraud - The pre-condition for invocation of Section 74 is that the revenue must establish wilful misstatement or suppression to evade tax - In the present case, the question evasion of tax does not arise since it is not an assessment but only determination of the correctness of availment of ITC - In such a case, what would be relevant is to see whether the availment of credit is with the intent of evading tax - Let the refund claim dated 19.07.2017 be processed on merits by the State Taxes Officer/R1, and paid over to the petitioner with interest till 27.12.2017, being the date when the TRAN-1 application was filed by the petitioner, within a period of four weeks - Petition is allowed: High Court   [para 11, 12, 15, 18, 19, 22]

- Petition allowed: MADRAS HIGH COURT

2022-TIOL-86-AAR-GST

Mel Training And Assessment Ltd

GST - Applicant is engaged in the business of providing exam, certification and other allied services including various types of surveys, assessments and exam services to various clients including individuals, educational institutions, firms, corporate bodies, government undertakings etc. - They  have entered into various contracts with customers to provide services which are conducting online examinations - The present application is with respect to applicability of GST for services of examination conducted for ALL INDIA INSTITUTE OF MEDICAL SCIENCES (AIIMS) - Applicant has sought advance ruling as to Whether the services provided by them can be considered as exempted under Entry 66 of Notification 12/2017 -Central Tax (Rate).  Held:  Applicant is providing services in respect of (i) Recruitment Examination (ii) Entrance Examination and (iii) Semester/course Examination, to the AIIMS - The services provided to an educational institution by way of services relating to admission to, or conduct of examination by, such institution is exempted as per entry 66(b)(iv) of the said notification - As regards the services by way of Recruitment Examination (for recruitment of employee) and Semester/Course examination is not mentioned in the said notification, the same are not exempted - AIIMS qualifies the definition of educational institution and accordingly services provided by the applicant to AIIMS by way of services relating to admission i.e. by way of entrance examination is exempt under entry no. 66(b)(iv) of the Notification No. 12/2017 -CT(R) dated 28.06.2017: AAR

- Application disposed of: AAR

2022-TIOL-28-AAAR-GST

KPH Dream Cricket Pvt Ltd

GST - AAR had held that w hen the applicant issues a 'complimentary ticket' to any person, the applicant is certainly displaying an act of forbearance by tolerating persons who are receiving the services provided by the applicant without paying any money, which other persons not receiving such complimentary tickets would have to pay for; that the monetary value of this act of forbearance would naturally be pegged to the amount of money charged from other persons not receiving such 'complimentary tickets' for availing the same services; that the activity of providing complimentary tickets free of charge to some persons would, therefore, be considered supply of service as per provisions of s.7(1)(a) and 7(1)(d) of the CGST Act and would, therefore, be leviable to tax as per provisions of section 9 of the CGST Act; that since all tickets supplied by the applicant including complimentary tickets would be taxable, the applicant would clearly be eligible for claim of Input Tax Credit as per provisions of section 16 of the CGST Act, 2017 - Aggrieved with this order of AAR, the appellant has filed an appeal. Held: Even for the consideration in the form of payment in kind, it should not be vague or illusory and there should be an element of reciprocity - If the argument by the Authority for Advance Ruling is agreed to and accepted then every kind of activity or transaction whether for gift or charity or for any other purpose shall fall within the domain of supply -  CBIC vide its Circular No. 92/11/2019-GST dated 7th March, 2019 has clarified that, “goods or services or both which are supplied free of cost (without any consideration) shall not be treated as supply under GST (except in case of activities mentioned in Schedule I of the said Act)" - Therefore,  the argument by the appellant that on account of absence of consideration in such activity or transaction, the same should not fall within the territory of supply is well taken and, therefore, the activity of providing such free or complimentary tickets is not a supply as per the GST Act - However, as per section 7 of the Act read with Schedule I any activity or transaction between the related person including employee shall be treated as supply even if the aspect of consideration is not there - Since the appellant itself has argued that the activity does fall within the domain of supply, it consequently follows that it shall be treated as a non-taxable supply under the Act and hence an 'exempted supply' - Furthermore, since the activity of providing complimentary tickets is an exempt supply, there shall be no availment of ITC in relation to same in accordance with sub-section (2) of section 17 of the Act -  Where such complimentary tickets are provided to a related or distinct person, it amounts to 'supply' on account of Schedule I of the Act and appellant would be liable to pay tax and also be entitled to avail ITC: AAAR

- Appeal disposed of: AAAR

2022-TIOL-985-HC-KOL-CT

Simplex Infrastructures Ltd Vs JCCT

Whether pre-deposit of tax demand merits being fixed at 50% of net tax payable, keeping in mind the need to balance interests of both Revenue & assessee - YES: HC

- Appeal partly allowed: CALCUTTA HIGH COURT

2022-TIOL-624-CESTAT-AHM

Forward Resources Pvt Ltd Vs CCE & ST

ST - The issue arises is, whether Tribunal is competent to consider the fresh documents submitted first time for deciding the case - It is held in catena of cases that Tribunal is final fact finding authority, any documents even submitted first time before Tribunal can be considered in interest of justice - The Law/Rules has not precluded CESTAT for considering new grounds/ evidence - During search at the premises of appellants, no invoices/ debit notes raised to their customers were found - The department recovered the said alleged debit notes/ invoices from customers - Presumption of documents in certain cases under Section 36A of CEA, 1944 is available only when the documents are produced by or seized from custody or control of person concerned - When the presumption under Section 36A is not available, burden of proof is squarely on Department to prove that the source documents related to appellants' and that any taxable services under the source documents were actually provided by appellant - This burden has not at all been discharged - Department clearly failed to prove the case that appellant have collected service tax from their customers.

For confirmation of service tax demand, Commissioner also relies upon TDS /26AS Statement - The said statement under provisions of Income Tax Act, 1961 is an Annual Consolidated tax statement - Income tax and service tax are two different/ separate and independent Acts and their provisions operating in two different fields - Tribunal finds support from the decision of M/s Ved Security 2019-TIOL-3162-CESTAT-KOL wherein it was held that the value of taxable services cannot be arrived at merely on the basis of TDS statements filed by clients inasmuch as even if the payments are not made by client, expenditure are booked based on which the form 26AS is filed, which cannot be considered as value of taxable services for the purpose of demand of Service tax - Demand of services tax is not sustainable on the basis of TDS /26AS statements.

As regard the cenvat demand, charges against appellant that they have not produced input service documents on which they have taken cenvat Credit, Tribunal found that contrary to this fact, appellant has recorded the receipt of input services in their cenvat account and produced cenvat credit account along with input service invoices on the basis of which Cenvat credit has been availed by them - Therefore, no reason found to deny Cenvat Credit - By way of affidavit, Director of Appellant company fairly submitted that the company is challenging demand of Service tax on service related to Goods Transport Agency Service provided to M/s CMIPL & M/s Lupin Ltd. - Other than the GTA service, service tax of Rs. 69,76,167/- duly paid by company on taxable services provided to remaining entities - The impugned SCN also shown that appellant have paid Service tax of Rs. 83,25,727/- and the same was also reflected in ST-3 returns - Department has liberty to verify the calculation of actual liability and payment thereof as submitted by appellant - Since the matter is decided on the facts of the present case and on law, Tribunal do not incline to deal with other issues - Interest and penalty is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT