2022-TIOL-859-ITAT-DEL

Sumeet Dhiman Vs ACIT

Whether words 'a one residential' mentioned in Section 54 refers to only one house which can be purchased or constructed and can not be interpreted as 'more than one house' - YES : ITAT

Whether assessee can not get deduction u/s 54 for two houses situated in separate buildings and in different places - YES : ITAT

- Assessee's appeal dismissed: DELHI ITAT

2022-TIOL-858-ITAT-DEL

Pivotal Infrastructure Pvt Ltd Vs ACIT

Whether assessee is not required to deduct TDS at time of payment of EDC to HUDA and there is no justification of penalty - YES : ITAT Whether default, if any, is on account of ambiguity which arises out of direction contained in statutory document, so no penalty can be justified u/s 271C - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-857-ITAT-DEL

Andrey Andreev Vs CIT

Whether the amended provisions of Section 54F will apply retrospectively - NO: ITAT

- Appeal allowed: DELHI ITAT

2022-TIOL-66-SC-GST

Pradeep Goyal Vs UoI

GST - Petitioner, by way of present Public Interest Ligation has prayed for an appropriate writ, order or direction to the respondents - respective States and the GST Council to take all necessary steps to implement a system for electronic (digital) generation of a Document Identification Number (DIN) for all communications sent by the State Tax Officers to taxpayers and other concerned persons.

Held: It cannot be disputed that implementing the system for electronic (digital) generation of a Document Identification Number (DIN) for all communications sent by the State Tax Officers to taxpayers and other concerned persons would be in the larger public interest and enhance good governance - It will bring in transparency and accountability in the indirect tax administration, which are so vital to efficient governance - As on today, only two States, namely, the States of Karnataka and Kerala have implemented the system for electronic (digital) generation of a DIN in the indirect tax administration, which is laudable - GST Council is empowered to make recommendations to the States on any matter relating to GST and can also issue advisories to the respective States for implementation of the DIN system, which shall be in the larger public interest and which may bring in transparency and accountability in the indirect tax administration - Writ petition stands disposed of: Supreme Court [para 6, 7]

- Petition disposed of: SUPREME COURT OF INDIA

2022-TIOL-63-SC-GST

Asstt. CCGST & CE Vs Saiher Supply Chain Consulting Pvt Ltd

GST - Petitioner sought declaration that, Rule 90(3) of the Central Goods and Services Tax Rules, 2017 is ultra vires the Constitution of India and the Central Goods and Services Tax Act, 2017 and consequently strike down the same - Petitioner also a seeks writ of certiorari for quashing and setting aside the rejection Order dated 26th November 2020 [rejected on the ground that the said application seeking refund for the period July 2018 to September 2018 was time barred] and seeks an Order and direction to restore the third refund application dated 30th September 2020 of the Petitioner filed by the Respondent No. 2 and to decide the same on merits - The third refund application was required to be filed within two years in accordance with the Circular No. 20/16/04/18-GST dated 18th November 2019, under Section 54(1) of the Central Goods and Services Tax Act, 2017 - The limitation period fell between 15th March 2020 and 2nd October 2021, which period was excluded by the Supreme Court [Cognizance for Extension of Limitation - [ 2020-TIOL-77-SC-MISC-LB ] & - 2021-TIOL-246-SC-MISC-LB ] in all such proceedings irrespective of the limitation prescribed under the general law or Special Law whether condonable or not till further Order/s to be passed by the Hon'ble Supreme Court in those proceedings - Respondent No. 2 is also bound by the said Order dated 23rd March 2020 [ 2020-TIOL-77-SC-MISC-LB ] and the Order dated 23rd September 2021 [ 2021-TIOL-246-SC-MISC-LB ] and is required to exclude the period of limitation falling during the said period - Since the period of limitation for filing the third refund application fell between the said period 15th March 2020 and 2nd October 2021, the said period stood excluded - The third refund application filed by the Petitioner thus was within the period of limitation prescribed under the said Circular dated 18th November 2019 read with Section 54(1) of the Central Goods and Services Act, 2017 - The impugned Order passed by the Respondent No. 2 is contrary to the Order passed by the Supreme Court and thus deserves to be quashed and set-aside - Respondent No. 2 is directed to consider the said third refund application dated 30th September 2020 on its own merits and in accordance with law expeditiously – Bench has not gone into the validity of the Circular and the Rule 90(3) - Petition was allowed.

Held - Considering the facts and circumstances, no intervention is called for - Third refund application submitted by assessee be considered in accordance with and on own merits - SLP dismissed: SC

- SLP dismissed: SUPREME COURT OF INDIA

2022-TIOL-1088-HC-RAJ-GST

Sharda Motors Vs UoI

GST - In view of fact that opportunity to file TRAN-1 and TRAN-2 Forms, has been opened to all concerned parties for a period of two months from 01.09.2022 to 31.10.2022, grievance raised by petitioner has been ventilated: HC

- Writ petition disposed of: RAJASTHAN HIGH COURT

2022-TIOL-1087-HC-AHM-GST

Shivanjali Fashions Vs UoI

GST - Petitioner has challenged SCN which is in nature of intimation of tax payable under Section 73(5) / 74(5) of the Act read with Rule 142(1A) - There is no gain saying that by said SCN, authorities have initiated adjudicatory proceedings to ascertain tax liability of petitioner - Court in exercise of its writ jurisdiction, would be disinclined to set aside, much less to stay SCN, more particularly when impugned SCN are adjudication bound - It will be open for petitioner to raise all contentions in respect of SCN - It is clarified that challenge to vires of said provisions in nature of second provisio to Section 16(2) of the Act, shall neither be a ground for petitioner to be raised to oppose SCN and adjudication proceedings, nor shall be an aspect to weigh with authorities in proceedings with merits: HC

- Writ petition disposed of: GUJARAT HIGH COURT

2022-TIOL-65-SC-ST

CST Vs Quick Heal Technologies Ltd

Civil Appeal No. 5167 Of 2022

ST - Revenue is in appeal aggrieved by the decision of the CESTAT = 2020-TIOL-189-CESTAT-DEL by which the Tribunal allowed the appeal filed by the respondent herein (assessee) thereby set aside the Order in Original dated 28.01.2016 passed by the Additional Director General (Adjudication) DGCEI, Delhi - Assessee is engaged in the development of Quick Heal brand Antivirus Software which is supplied along with the license code/product code either online or on the replicated CDs/DVDs to the end customers in India - Revenue reached the conclusion that the assessee had failed to pay service tax [under the category of "Information Technology Software Service"] on the consideration received for the supply of the license codes/keys of Antivirus Software to the end customers in retail packs during the period between 01.03.2011 and 31.03.2014 - SCN dated 02.02.2015 came to be issued demanding service tax amounting to Rs. 62,73,05,953 and upon adjudication the Additional Director General (Adjudication), DGCEI, Delhi, confirmed the demand of service tax amount of Rs. 56,07,05,595/- - CESTAT allowed the appeal on the following grounds viz. The antivirus software did not have an element of interactivity; that as per the decision of the Supreme Court in the case of Tata Consultancy Services = 2004-TIOL-87-SC-CT-LB , the pre-packaged/ canned software would be treated as goods; that once the software is put on a medium like a CD and then sold, such software would be treated as goods; that CBEC issued guidelines when the negative regime was issued on 1.7.2012 clarifying that the pre-packaged/ canned software would not be goods even if there was a licence.

Held: The sum and substance of the ratio of the case of BSNL - 2006-TIOL-15-SC-ST-LB is that the contract cannot be vivisected or split into two - Once a lumpsum has been charged for the sale of CD (as in the case on hand) and sales tax has been paid thereon, the revenue thereafter cannot levy service tax on the entire sale consideration once again on the ground that the updates are being provided - Bench is of the view that the artificial segregation of the transaction, as in the case on hand, into two parts is not tenable in law - It is, in substance, one transaction of sale of software and once it is accepted that the software put in the CD is "goods", then there cannot be any separate service element in the transaction - Even otherwise, the user is put in possession and full control of the software and it amounts to "deemed sale" which would not attract service tax - Impugned order of the Tribunal suffers from no jurisdictional or any other legal infirmity warranting any interference - Revenue appeal fails and it is hereby dismissed: Supreme Court [para 55 to 57

Civil Appeal Nos. 6715, 6716 OF 2022

ST - Assessee in appeal against Division Bench order dated 05.08.2021 - Single Judge vide order dated 29.10.2020 dismissed the Writ Petition, inter alia, on the ground that the High Court was not bound by the decision of the Tribunal, Delhi Bench in the case of Quick Heal Technologies Ltd. and the appellant's own order passed by the Tribunal, Chennai Bench - Division Bench upheld this order of Single Judge hence the Civil appeal.

Held: In view of the judgment rendered above in Civil Appeal (Diary No. 24399 of 2020) [Quick Heal Technologies Ltd.], these appeals should succeed and deserve to be allowed - Appeals allowed: Supreme Court [para 73]

- Revenue appeal dismissed/Assessee appeals allowed: SUPREME COURT OF INDIA

2022-TIOL-64-SC-CX

CCGST & ST Vs V Trans India Ltd

CX - Penalty of Rs.75,000/- imposed u/r 26 of CER, 2002 on appellant on the ground that the appellant being a regular transporter had prepared consignment note for delivery of the goods at Moradabad and consequently the said goods were delivered at Surat - On appeal to CESTAT, it was held that, in the entire o-in-o running into 87 pages, no findings have been recorded by adjudicating authority as to how the appellant had abetted or violated the provisions of CER, 2002 - appellant being a regular transporter had documents liked CT-3, excise invoices which were indicating that delivery should be made at Moradabad while goods were delivered at Surat - Provisions of rule 26 would get attracted only if any person who acquires possession of, or is in anyway concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with any excisable goods which he knows or has reason to believe are liable for confiscation - appellant, being a transporter, documents like excise invoice were available with him - penalty, therefore, is not imposable - impugned order was set aside and appeal was allowed.

Held - Considering the facts of the case, no intervention is warranted: SC

- SLP dismissed: SUPREME COURT OF INDIA