2022-TIOL-850-ITAT-MUM

Mehta Charity Trust Vs DDIT

Whether proceeds received by a trust from a building rented out by the trust can be deemed to be sale consideration and be grounds for denial of exemption u/s 11 of the I-T Act - NO: ITAT

- Appeal allowed: MUMBAI ITAT

2022-TIOL-849-ITAT-KOL

DCIT Vs ICA Eduskill Pvt Ltd

Whether re-opening of assessment beyond the four-year limitation period is sustainable where no failure to make full & true disclosure of facts is attributed to assessee - NO: ITAT

- Appeal dismissed: KOLKATA ITAT

2022-TIOL-848-ITAT-AHM

Anandiben Jayantilal Shah Vs ITO

Whether additions framed u/s 68 of the Act merit being sustained where the assessee is found to have discharged onus of explaining source of deposits in bank account - NO: ITAT

- Appeal allowed: AHMEDABAD ITAT

2022-TIOL-92-AAR-GST

Sri Vinayaka Hatcheries

GST - Applicant seeks an Advance Ruling on the applicability of GST on renting of Land and whether the activity of Fish/Prawn Farming is covered under "services relating to rearing all life forms of animals-by way of renting or leasing of vacant land" and eligible for GST exemption as per SI.No.54 of notification No. 12/2017 central tax (Rate) .

Held : If we clearly examine the entry under 9986, the thrust is on services relating to 'cultivation of plants' and 'rearing of all life forms of animals' - Cultivation of plants is essentially 'agriculture' while 'rearing of all life forms of animals' is 'animal husbandry' - Animal husbandry is the branch of agriculture where animals are reared, bred and raised for commercial purposes like meat, fibre, eggs, milk and other food products - Fish farming is not an agricultural activity as no basic agricultural operation 'directly related to production of any agricultural produce including cultivation, harvesting, threshing, plant protection or testing', as enumerated in sl.no. 54 (a) is carried out on that vacant land - Furthermore, in case of fish/prawn farming, any of the processes as listed in the sl.no.54 (c) of the notification such as 'tending, pruning, cutting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such other operations which do not alter the essential characteristics of agricultural produce' are not carried out on the vacant land - Hence, fish/prawn farming is not covered under services of agriculture as enumerated under SI.No.54 of the notification - When the lease agreement is examined in toto, nowhere it is mentioned specifically that the land is leased for any purpose related to agriculture, rearing of animals, fishing etc. - The agreement between the lessor and the lessee (applicant) is executed on the lines of commercial renting of any other land without any reference to the purpose of usage of the land - It is open ended that the land might be used by the lessee for any other intended purpose in the absence of any specification as such - This would lead to the conclusion that the lease of vacant land would obviously be covered under heading 9972 and is taxable at the rate of 18% under sl. No. 16 of notification No. 11/2017-Central tax (Rate) : AAR

- Application disposed of: AAR

2022-TIOL-1070-HC-RAJ-NDPS

UoI Vs Magga Ram

NDPS - Appeal against judgment passed by ASJ whereby the accused-respondent was acquitted of the charges against him under the NDPS Act.

Held : From the testimonies of the relevant prosecution witnesses, it is clear that the complete investigation has been made in an irresponsible manner, without following the due process of law - Panchnama in question clearly bears the date of its preparation as 07.11.1987 whereas the then Inspector, has made a deposition before the court that the raid was conducted on 06.11.1987 - If the search warrant was obtained on 06.11.1987, as to why the immediate arrest of the accused-respondent was not made, even when the alleged recovery of contraband was made is not forthcoming - Such an irresponsible conduct on the part of the said officer casts a serious doubt upon the case of the prosecution, more particularly, as to the presence of the accused-respondent at the time of alleged recovery and seizure of the contraband in question - No copy of the letter, through which the contraband was allegedly sent for FSL analysis, was placed on record by the prosecution, nor any receipt issued by the FSL Neemuch was placed on record, which also casts a serious doubt upon the prosecution case - Illegalities and irregularities, as noted by the trial court are clearly detrimental to the case of the prosecution, and goes in favour of the accused-respondent - Court does not find it a fit case, so as to warrant any interference in the impugned well-reasoned speaking judgment - UOI Appeal is dismissed: High Court [para 5.1, 5.2, 5.4, 5.8, 7, 10, 11]

- Appeal dismissed: RAJASTHAN HIGH COURT

2022-TIOL-1069-HC-KAR-ST

Rajiv Gandhi University of Health Sciences Vs Pr. Addl. Director General

ST - Only question that arises for consideration is whether the petitioner Rajiv Gandhi University of Health Sciences is liable to pay the service tax on the rent received by it from the buildings let out by it.

Held: It is not in dispute that petitioner has let out some of its buildings for canteen, Bank and other facilities which are essential for effective running of an University in furtherance to imparting education and the said activity has to be considered as an activity incidental to provide services of education and it is a service naturally bundled in the ordinary course of business as contemplated in Clause (3) of Section 66(F) of the Act and the rent received also deserves to be exempted once the activity of providing education by the petitioner - Institution is exempted from service tax - It is not appropriate to relegate the petitioner before the adjudicating Authority - Show cause notice dated 20.04.2018 and statement of demand dated 28.02.2019 are hereby set aside and consequently, all further actions pursuant to the said show cause notice is hereby set aside - Petition is disposed of: High Court [para 14, 17, 18]

- Petition disposed of: KARNATAKA HIGH COURT

2022-TIOL-1068-HC-MP-CUS

Rudras Overseas Vs Addl. Director General

Cus - Petition filed seeking setting aside/quashing of SCN dated 30.12.2020 issued by Pr. ADG, DRI Indore as having been issued without jurisdiction in view of Supreme Court decision in the case of Canon India Pvt. Ltd. = 2021-TIOL-123-SC-CUS-LB - Another grievance of the petitioner is that adjudicating authority instead of determining the differential duty amount in accordance with the provision of section 28(9) of the Customs Act, 1962 within the stipulated period of one year, by way of order dated 30.12.2020 has transferred the show cause notice to call book.

Held : Since the petitioner is seeking quashment of show cause notice relying on Canon India Pvt. (supra) which is under review before the Apex Court, therefore, the respondent authority awaiting the final outcome of the aforesaid case has rightly sent the case of the petitioner to call book in the exercise of power under Section 28(9A) of Customs Act - Petitioner is not challenging the validity of Instruction No. 4/2021-Customs dated 17.08.2021 issued by Central Board of Indirect Taxes and Customs, therefore, present petition is not maintainable: High Court

- Petition dismissed: MADHYA PRADESH HIGH COURT

2022-TIOL-1067-HC-RAJ-CUS

Paras Marble Vs UoI

Cus - Having acquired the EODC, the petitioner applied for the refund of the amount of the bank guarantee vide letter dated 24.11.2018 but the application was inadvertently addressed to the Commissioner, Customs and should have been filed before the Assistant/Deputy Commissioner of Customs - A letter dated 30.04.2019 was issued from the office of the Commissioner Customs and the petitioner was informed to approach the Assistant Commissioner (Refunds) - Thereupon, the petitioner submitted a fresh refund application along with all relevant documents vide letter dated 20.05.2019 to the Assistant Commissioner (Refunds) - A letter dated 03.08.2020 was issued by the Assistant Commissioner informing the petitioner that its refund application could not be processed because the same had not been filed in the prescribed format and accordingly the application was being returned to the petitioner - Petitioner filed a fresh application to the Assistant Commissioner (Refunds) in the prescribed form No. 102 as per the Custom Refund Application (Form) Regulations, 1995 on 04.09.2020 but this refund claim was rejected by order dated 16.10.2020 on the ground that the claim was time barred - Hence, the present petition - Petitioner seeks a direction to the respondent No. 3 to decide the petitioner's refund application afresh by treating it to be within limitation.

Held : Having considered the admitted facts narrated above, Bench is of the firm view that the petitioner had been bonafide pursuing his claim for refund of bank guarantee - The petitioner was unquestionably prosecuting his refund claim in a bonafide manner which ought not to have thrown away on hyper-technical objection of not having been filed before the competent authority and/or not having been filed in the prescribed format and finally as being delayed - Impugned communication dated 16.10.2020 is quashed - The authority concerned shall treat the refund application of the petitioner to be within limitation and shall proceed to decide the same as per law within a period of three months: High Court

- Petition allowed: RAJASTHAN HIGH COURT

2022-TIOL-1066-HC-MUM-CUS

Pr.CC Vs JSW Steel Ltd

Cus - Import of Coking coal - Delay in filing Bill of Entry - Appeal filed by Revenue impugning the final order passed by CESTAT holding that the late fees charged in the adjudication order is unwarranted.

Held: The Commissioner of Customs (Appeals) in his order which has been upheld by the Tribunal has observed that the Respondent-Company has demonstrated its bona fides and Bench agrees with the same - The second proviso [to s.46(3)] clearly invests a discretion on the Authorities while considering levy of late payment charges as imposed on the Respondent-Company - The satisfaction for sufficiency of cause is a subjective satisfaction which has to be exercised judiciously - The Assessing Officer has based on technicalities and without any judicious application of mind, levied the late payment charges which have been rightly set aside by the Appellate Authority and the Tribunal - By no stretch of imagination, it can be said that the Respondent-Company has not acted bona fide - The entire confusion was due to the short landing of 1,341 metric tons of Goonyella C Coking Coal at Marmagao though full duty in respect of which has been paid by the Respondent-Company and even after it was found out that 1,341 metric tons was landed in Jaigad , the Respondent- Company has taken efforts to get the IGM amended and no sooner the IGM was amended, the Bill of Entry in respect thereof was filed on the same day within time - This shows the Respondent Company's eagerness to be on the right side of the law - Bench is satisfied that the Respondent-Company has shown its bona fides by all these actions - Bench does not find any fault with the order of the Appellate Authority or the Tribunal - Revenue appeal dismissed: High Court [par 14, 15]

- Appeal dismissed: BOMBAY HIGH COURT