Shashikant Vijay Khairnar Vs Pr.CIT

Whether power of revision u/s 263 is rightly exercised where the AO estimates gross receipts for agricultural produce without first considering the reasonableness of the cotton yield per hectare - YES: ITAT

- Assessee's appeal dismissed: PUNE ITAT

Jangid Brahman Cooperative Credit And Savings Bank Ltd Vs Pr.CIT

Whether if two views possible and AO has accepted one, PCIT cannot assume jurisdiction u/s 263 - YES : ITAT

- Assessee's appeal allowed: JAIPUR ITAT

Jaluidanga Paschim Nasaratpur Samabay Krishi Unnayan Samity Ltd Vs ITO

Whether claim of deduction u/s 80P can be allowed on interest income received from Axis Bank - NO : ITAT

- Assessee's appeal dismissed: KOLKATA ITAT

2022-TIOL-1031-HC-P&H-GST

Sunil Kumar Vs State of Haryana

GST - Petitioners seek regular bail in the case registered Sections 406, 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860 - The taxpayer was found involved in evasion of tax by way of getting registration under GST Act by means of wilful mis-statement and suppression of fact in the name and style of M/s Aggarwal Cotton Industries in the Kapas Mandi, Adampur - The taxpayer had been found to be fraudulently involved in wrong availment and utilization of ITC for disposal of tax liability without actual payment of tax resulting into loss of revenue to the State exchequer.

Held: Insofar as the aspect as to whether the general penal provision of the Indian Penal Code, 1860 would be applicable in the present case or the special law under Section 132 of the Central Goods and Services Tax Act, 2017 would be applicable is an issue to be decided by the trial Court - Undisputedly, no proceedings under the Central Goods and Services Act, 2017 had been instituted which may give rise to an inference that there is an actual loss to the exchequer and even the witnesses of the State record their statement to the said effect - There is no rebuttal to the said statement at this stage and the Court has to assume that the State exchequer has been indemnified for the pecuniary loss - Considering the fact that the present case being a Magisterial trial wherein the petitioners have already undergone substantive sentence of 1½ years since their arrest in the month of December 2020 and that only 02 witnesses have been examined so far coupled with the fact that the petitioners do not suffer from any criminal antecedents, Bench deems it appropriate to enlarge the petitioners on bail - Moreover, no apprehension has been expressed by the State about the petitioners absconding from trial or tampering with the prosecution evidence - There is no compelling circumstance as would call for continued custodial detention of an accused in a Magisterial trial when they have already undergone 1½ years of actual sentence and the trial is still at the nascent stage and is likely to take long to conclude - Magnitude of a crime and its social impact are even though essential aspects to be kept in mind while constituting a bail petition, however, the same cannot remain the sole ground for prolonging detention for indefinite period of time - Court needs to strike a fine balance while considering an application of bail since the adopted criminal jurisprudence in the country hinges on presumption of innocence - Power to grant bail is not to be deployed as a mechanism for imposing sentence even before a guilt is yet to be proved and established - Petitions are allowed and the petitioners are admitted to regular bail subject to their furnishing heavy bail bonds/surety bonds to the satisfaction of Trial Court/Duty Magistrate, concerned: High Court [para 7, 8, 9, 10]

- Petitions allowed: PUNJAB AND HARYANA HIGH COURT

2022-TIOL-1035-HC-KERALA-CT

State of Kerala Vs Covema Wood Plast

Sales Tax - Controversy centres around the tax liability on the movement of capital goods from the petitioner's unit in Cochin Special Economic Zone (CSEZ) to the 6th respondent's unit at Udaipur, Rajasthan - Judgment under appeal proceeded on the premise that the transportation of goods from Cochin, Kerala to Udaipur, Rajasthan, though is from one State to another State, the incidence of taxability has not arisen in view of the fact that it is from the bonded warehouse of the petitioner to the 6th respondent unit which is in a Special Economic Zone; that Sections 51 and 53 of the Special Economic Act, 2005 have overriding effect on other laws and that deems a Special Economic Zone as a territory outside the customs territory of India – Judgment under appeal holds that the inter-unit transfer is from CSEZ to another SEZ, which is to be treated as a foreign territory for the purpose of trade and tariffs and shall not be understood as having crossed the customs frontier of India; that, therefore, the CST demanded from the petitioner is illegal.

Held: The record discloses that the capital goods were kept in a bonded warehouse and moved out of the bonded warehouse of SEZ, State of Kerala, to Udaipur in Rajasthan - The 6th respondent transferee is not located or established in SEZ but a 100% EOU - The movement of goods from one SEZ to another SEZ may have different connotations and in the case, on hand, since the movement is to a 100% EOU, all the inferences available in the transfer of goods from one SEZ to another SEZ are not attracted - Pursuant to the permission granted, bill of entry is raised, invoices are booked and goods transported, pursuant to the permission granted by the Development Commissioner - The 6th respondent is not asserting his status in the transfer or movement of goods - From the documents relied on by the petitioner, the subject movement is an inter-state transfer and attracts Central Sales Tax - The very stated sequence movement of Goods does not imply as transfer having been made in the course of import of goods on the primary documents of title - On the contrary, the sale is resulting in movement of Goods, permission in Ext.P7, Bills of Entry in Ext.P9, and Invoices in Ext.P10 - These documents of title or invoices and Bills of Entry stand in the name of the 6th respondent – Bench is compelled to arrive this finding from two perspectives viz ( i ) the theory of lease of capital Goods is no more a plea, (ii) the contemporaneous documents satisfy the tests applicable to inter-state transfer - The case on hand satisfies the test laid down under Section 3 for determining what constitutes inter-State sales - Case of the petitioner for exemption from payment of central sales tax on the ground that movement of goods is in the course of import is also unsustainable and accordingly rejected – Bench is unable to agree with the findings recorded in the judgment under appeal - The judgment under appeal is set aside and Revenue Appeal is allowed: High Court [para 22]

- Appeal allowed: KERALA HIGH COURT

2022-TIOL-1034-HC-KOL-CX

Pr.CCGST & CE Vs Himadri Speciality Chemical Pvt Ltd

CX - Revenue is aggrieved by the Tribunal decision and has raised the following substantial questions of law viz. - Whether the respondent is liable to pay as per rule 6(3) of CCR, 2004 the amount calculated at the rate of 6% of the sale value of electricity sold outside the factory when admittedly the respondent has reversed the proportionate credit of inputs and input services attributable to sale of electricity; Whether the electricity generated from waste gas / tail gas is classifiable under Chapter Heading 27 16 00 00 and whether the same can be said to be 'exempted goods' - Tribunal had inter alia held that for the purpose of reversal of Cenvat credit, non-excisable goods would be considered to be exempted goods and the assessee would be liable to reverse the proportionate credit with effect from 1st March, 2015 onwards and not for the prior period

Held: It was held in the case of Gularia Chini Mills 2013-TIOL-568-HC-ALL-CX [upheld by Supreme Court in DSCL Sugar Ltd - 2015-TIOL-240-SC-CX ] that bagasse was a "waste" and hence, it was not manufactured of exempted goods and electricity generated from bagasse was neither excisable under Section 2(d) of the Central Excise Act, 1944, nor exempted good under rule 2(d) of the Cenvat Credit Rules 2004 and hence, Rule 6 of the said Rules is not applicable - In view thereof, held that Tribunal has rightly allowed the appeal filed by the assessee and set aside the order of adjudication - Revenue appeal dismissed: High Court [para 7, 8, 10]

- Appeal dismissed: CALCUTTA HIGH COURT

2022-TIOL-1033-HC-KOL-CUS

CC Vs Marico Logistics Pvt Ltd

Cus - Appeal is filed by the revenue against the order dated 26.11.2019 passed by the CESTAT – Respondent, a Customs broker, came to adverse notice of the department with regard to the certain import consignments where the combined net weight of the goods imported were manipulated - In this regard, an offence report was drawn by the Directorate of Revenue Intelligence (DRI) and communicated to the appellant department - The respondent's licence was initially suspended and thereafter by order dated 21.09.2017, the licensing was revoked and the security deposit ordered to be forfeited - Challenging the same, the respondent preferred appeal before the tribunal which has been allowed.

Held: Before the Commissioner, the respondent company took a stand that they dealt with the documents produced by the importers in good faith without apprehending any manipulation in weight - If such is the submission, nothing prevented the respondent from producing the importers before the authority which they fail to do - On the contrary, part of the differential duty to the tune of Rs. 65.40 lakhs was remitted by the appellant, to be treated as voluntary payment as there is no allegation that the respondent was compelled to pay due amount - This argument/admission before the Commissioner clearly shows that the respondent has failed to fulfil the obligation which has been fixed on them - Thus, it is clear that the tribunal has picked holes in the evidence brought on record by the licensing authority which not only probabilises but also establishes the violation committed by the respondent thereby giving no room for interference – Bench has no hesitation to hold that there exists more than sufficient probabilities to pin down the respondent on the charge of violation of CBLR, 2013 - Order passed by the tribunal suffers from errors of law and perversity calling for interference - Appeal filed by the revenue is allowed and the substantial questions of law are answered in favour of the revenue: High Court [para 11, 17, 18]

- Appeal allowed: CALCUTTA HIGH COURT

2022-TIOL-1032-HC-DEL-CUS

Premier Timber And Trading Pvt Ltd Vs Pr.CC

Cus - Appeal concerns application of limitation vis-à-vis refund sought qua Special Additional Duty of Customs (SAD) - Notification 102/2007-Cus was amended by Notification No. 93/2008-Cus dated 01.08.2008 by which the condition of filing refund claim within one year was inserted.

Held: Reasoning furnished by the Commissioner of Customs (Appeals) via order dated 11.05.2020 is flawed, as limitation cannot be prescribed by a notification - Bench respectfully agrees with the view taken in Sony India Pvt. Ltd. [ 2014-TIOL-532-HC-DEL-CUS ] and therefore, allows the instant appeal - Impugned order dated 18.08.2021 passed by Customs, Excise and Service Tax Appellate Tribunal is set aside as also the Order-in-Appeal dated 11.05.2020 and the Order-in-Original dated 11.02.2019 - Respondent will now process the application for refund preferred by the petitioner, as per law, having regard to the decision taken in the present appeal - Appeal disposed of: High Court [para 6, 8, 9]

- Appeal disposed of: DELHI HIGH COURT