2022-TIOL-913-ITAT-MUM

Happy Home Cooperative Housing Society Ltd Vs ITO

Whether difference in contributions payable by old members and fresh inductees of society cannot fall foul of principle of mutuality if sufficient classification exists - YES: ITAT

Whether just because payments had been made by the developer, doctrine of mutuality cannot be taken away from the cooperative housing society - YES: ITAT

- Assessee's appeal allowed: MUMBA ITAT

2022-TIOL-912-ITAT-DEL

Maharishi Markandeshwar Trust Vs ACIT

Whether when Development Fee is directly taken to corpus account as capital receipt u/s 11(1)(d) and is also invested in fixed asset, then such fee has to be treated as corpus fund - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-911-ITAT-DEL

Sneh Lata Sawhney Vs DCIT

Whether addition made can be deleted by following decision of Tribunal on identical situation in case of husband of assessee - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-1111-HC-AP-GST

Walchandnagar Industries Ltd Vs Asstt. Commissioner (ST)

GST - The petitioner, a registered dealer in the state of Andhra Pradesh, executed works/services as per the terms of the contract at the recipient's location at Visakhapatnam - As the impugned transactions are interstate transactions, the petitioner collected Integrated Goods & Services Tax from the recipient and remitted the same to the Government - However, on 15.11.2018, respondent No.1 issued a show cause notice proposing to treat the transactions as intra-state supply of goods instead of inter-state supply of goods - On 05.10.2020, respondent No.1 completed the assessment treating the transaction as an intrastate supply of goods and levied Central Goods & Services Tax and Andhra Pradesh State Goods & Services Tax - In view of the above, the petitioner requested the authorities vide letter, dated 27.03.2019, to adjust the monies paid under I.G.S.T. towards the dues payable under C.G.S.T. and S.G.S.T. but the same came to be rejected by respondent No.1 - An appeal filed was also dismissed on 30.12.2021, therefore, the present petition.

Held: Petitioner mainly submits that when the nature of transaction is admitted, the authorities ought to have adjusted the amount paid by him towards I.G.S.T. - In any event, petitioner would contend that he will pay the C.G.S.T. and S.G.S.T. due to the authorities and thereafter, he may be permitted to claim refund of the amount paid towards I.G.S.T. - Said submission is not seriously opposed by the Revenue Counsel - In view of the fact that the nature of transaction is not in dispute, the present Writ Petition is disposed of directing the petitioner to pay C.G.S.T. and S.G.S.T. within a period of three weeks and thereafter, make a claim for refund of the amount under I.G.S.T. which is to be dealt with by the respondent no. 1 within a period of four weeks -Petition disposed of: High Court [para 7]

- Petition disposed of: ANDHRA PRADESH HIGH COURT

2022-TIOL-1110-HC-CHHATTISGARH-GST

Nandan Steels And Power Ltd Vs State of Chhattisgarh

GST - Appellant had filed TRAN-1 to claim CGST input credit of Rs.30,74,436/- - However, the Adjudicating Authority by an order dated 26.06.2019 disallowed the CGST input credit of Rs.25,33,950/- - Appeal came to be rejected on the ground of same being barred by limitation - An order dated 27.10.2020 came to be passed by the Single Judge who dismissed the writ petition by observing that in terms of s.107(1) and s.107(4) of the Act, the appellate authority has no power to entertain an appeal beyond the period of one month; that there is no power to entertain the application for condonation of delay beyond the permissible period - In the appeal now filed before the Division Bench, the Appellant submits that the delay was occasioned on account of a serious ailment suffered by their Chartered Accountant who was authorised to file appeal; that the respondent no.3 ought to have considered the application for condonation by invoking's 29(2) of the Limitation Act, 1963.

Held:  CGST Act is a "special law" which prescribes a specific period of limitation in Sections 107(1) and 107(4), and therefore, the provisions of CGST Act will apply - It is also to be noted that there is no provision under the Limitation Act dealing with the subject matter of appeal under the CGST Act - In respect of an appeal under Section 107(1) of CGST Act, it is provided that the appeal may be filed within three months from the date on which the decision or order is communicated to such person - Section 107(4) of CGST Act lays down that on sufficient cause being shown, the Appellate Authority may allow the appeal to be presented within a further period of one month - The same would go to show that the legislative intent was not to apply the Limitation Act in the proceedings to be taken under the CGST Act - If the intention had been otherwise, there would have been no occasion [u/s 117 of Act, 2017] for conferring specifically power to the High Court to entertain an appeal after the expiry of the period of limitation of 180 days if it was satisfied that there was sufficient cause for not filing it within such period as Section 5 of the Limitation Act would have become applicable by virtue of Section 29(2) of the Limitation Act -   Writ appeal dismissed: High Court  [para 14,  32]

- Appeal dismissed: CHHATTISGARH HIGH COURT

2022-TIOL-1109-HC-AP-GST

Fedex Express Transportation And Supply Chain Services India Pvt Ltd Vs Addl.Commissioner

GST - It is the case of the petitioner that they filed refund claim in form GST RFD-1 for supplies made to its recipients which are in SEZ - In order of file the refund claim, the petitioner approached/corresponded with its recipient i.e. SEZ units to obtain endorsement certificates from the specified officer of their respective zone in relation to receipt of services by these SEZ units for their authorised operation - However, the SEZ units were unable to obtain endorsement certificates from the specified officer of the SEZ due to restrictions imposed in the wake of COVID pandemic - Since the refund claims were to be filed on or before 31.08.2020, the petitioner filed the claim along with other supporting documents except the endorsement certificate - A SCN was received from respondent no. 2 wherein the claim of refund was proposed to be denied on the ground that the endorsement certificates were not submitted - A reply was filed, but without considering the same the authorities rejected the refund claim of Rs.3,45,02,753/- - Petitioner filed an appeal and pending their disposal, the petitioner requested the Development Commissioner of SEZ for help in obtaining the endorsement certificates - Finally, the petitioner was able to obtain the certificate dated 11.01.2021 from the specified officer for a substantial portion of the services provided to SEZ units for authorised operations - The same were submitted to respondent no. 1 (appellate authority) but the appeals were rejected on the sole ground that the endorsement certificates were not submitted within the time specified and also along with the refund claim - These orders are challenged in the Writ petitions.

Held:  The short question that arises for consideration is, whether the request of the Petitioner seeking a direction to the Appellate Authority to accept the endorsement certificate filed pending appeal can be accepted? - Coming to due diligence, it is to be noted that the Petitioner herein placed on record the correspondence, evidencing the efforts made to obtain endorsement certificates - Petitioner has been in continuous touch with its recipients SEZ Units viz., Pfizer, Hobel Bellows, Astrotech Steels, MSR Garments and Ramky Pharmacity India Limited, but, ultimately the Petitioner could secure endorsement certificates only from Ramky Pharmacity India Limited - Therefore, it cannot be said that the Petitioner kept quiet without pursuing its remedies - As regards contention of respondent that the petitioner ought to have obtained endorsement certificate much prior to arrival of COVID in India, it is to be noted that the petitioner has two years time to claim refund and the petitioner could not have anticipated that the pandemic will sweep the entire country during that period - Therefore, not obtaining endorsement certificate prior to COVID pandemic cannot be a ground to reject the claim - A plain reading of rule 112 [Production of additional evidence before the appellate authority or the appellate Tribunal] inter alia makes it clear that the Appellate Authority has got all the power to accept additional evidence adduced by the appellant, when he is prevented by “sufficient cause” from producing the material before the assessing officer - Appellate authority, therefore, ought to have accepted the request of the petitioner - For the above reason, the request of the petitioner to accept the endorsement certificate, dated 11.01.2021 of the specified officer of Ramky Pharmacy India Ltd. is allowed - Writ petitions are allowed by setting aside the impugned order dated 30.07.2021 and the matters are remanded back to the appellate authority to deal with the same afresh after accepting the application filed by the petitioner for additional evidence, in accordance with law: High Court  [para 9, 10, 12, 13, 16, 17]

- Petitions allowed: ANDHRA PRADESH HIGH COURT

2022-TIOL-1108-HC-KERALA-CUS

Forbes And Company Ltd Vs CC

Cus - Appeal u/s 130 of the Customs Act, 1962 against Miscellaneous order and Final Order of CESTAT, SZB, Bangalore - Alleged illegality pointed out in the exercise of jurisdiction by the Tribunal is that on 30.04.2015, assuming without admitting that the counsel appearing for the appellant was absent when the stay petition was called before the Tribunal, the Tribunal ought to have dismissed the stay application and it was completely unusual to dismiss the stay petition by imposing a condition to deposit the dues demanded by order dated 04.04.2013 - Dismissal of the appeal on 06.01.2017, after hearing the case on 17.10.2016, shows the arbitrary manner in which the jurisdiction of the Tribunal is exercised - Rectification application was also dismissed, thus, for non-complying with a condition which should not have been imposed, the appeal is dismissed, and the appellant is denied the valuable statutory right before the CESTAT, Bangalore - It is argued that the orders are liable to be set aside and Miscellaneous Application C/ROM/21353/2015 is allowed, and Appeal is restored and matter is heard on merits.

Held: Tribunal is certainly well within its power either to reject stay of an order impugned before it, grant a stay and impose conditions, or dismiss the application for non-prosecution - However, the order dated 30.04.2015 does not fall under any one of the categories - Strangely for reasons not discernible from the order dated 30.04.2015 the appellant, while suffering an order of dismissal ex parte , is called upon to deposit the full amount - Tribunal, in one case through a default order confirmed the order dated 04.04.2013, in the case of the appellant herein and reversed the same order in the case of M/s.ASEAN Cableship Pvt. Ltd. - Now, one order has two distinct consequences in the same and similar set of circumstances - To avoid such contingency and to give an opportunity to the appellant in the appeal, Bench is convinced that the orders dated 13.07.2015 and 06.01.2017 can be set aside - Orders dated 06.01.2017 and 13.07.2015 are ex facie illegal - Same are set aside and appeal is restored - Tribunal is directed to dispose of appeal expeditiously within a period of three months: High Court [para 6, 6.1, 6.2, 6.3]

- Matter remanded: KERALA HIGH COURT

2022-TIOL-1107-HC-JHARKHAND-ST

Vassu Enterprises Vs UoI

ST - SVLDRS, 2019 -  On allegation of improper discharge of service tax liability, DGCEI initiated enquiry/investigation against the petitioner and, during the process of such enquiry, an amount of Rs.2,45,24,953/- was deposited by petitioner and/or recovered by the Department by issuing garnishee notices to its customers - A SCN dated 25th July, 2018 was issued asking the petitioner to show cause as to why service tax amounting to Rs. 4,69,12,227/- be not demanded along with interest, penalty, late fee etc. - In the SCN, petitioner was also directed to show cause as to why the amount paid during investigation and/or recovered u/s 87 of the FA, 1994 should  not be appropriated against the service tax demanded from the petitioner - O-in-O dated 11.07.2019 came to be passed upholding the allegations levelled in the notice and imposing penalty, late fee etc. - On the ground that as on 30.06.2019, the SCN issued was pending adjudication, petitioner filed a declaration under the SVLDRS, 2019 scheme under the litigation category envisaged u/s 124(1)(a)(ii) of the Finance Act, 2019 - SCN was issued by the Designated Committee alleging that the declaration should be treated under the 'Arrears category' and not as contended by the petitioner -  Although   the petitioner submitted its reply, the Designated Committee treated the  declaration in the category 'Arrears' and held that the petitioner is eligible for tax relief only to the extent of 40% of the tax dues - Moreover, the Designated Committee first adjusted/reduced the amount of pre-deposit/deposit of Rs.2,45,24,953/- from the amount of 'tax dues' of Rs.4,69,12,227/- and thereafter extended the benefit of tax relief of 40% on the reduced amount thus requiring the declarant/petitioner to pay Rs.1,34,32,364/- - Taking exception to the aforesaid determination, the present writ application by the petitioner contending that even if the case of the petitioner is treated as falling under the 'arrears' category, still the amount payable would be required to be computed before adjusting the deposits made - Inasmuch as the amount payable under the Scheme would be Rs.36,24,401 and not Rs.1,34,32,364/- as determined by the Designated Committee.

Held:   In the opinion of the Bench, if the interpretation given by the Revenue of the word 'recoverable' u/s 121(c) is accepted, the same would lead to an incongruous interpretation leading to absurdity which is to be avoided - Impugned Circular No. 1072/05/2019/CX dated 25.09.2019 has an effect of altering the definition of 'amount in arrears' as defined under section 121(c) of the Scheme - Admittedly, section 121(c) of the Scheme uses the term 'recoverable' as opposed to the term 'outstanding' and to this extent, impugned Circular is contrary to the Scheme itself - Even from a plain reading of Section 124(2), it would be evident that the amount of deposit made during enquiry, investigation or audit is required to be deducted after extending relief under section 124(1) of the Scheme and at the time of issuing statement indicating the amount payable by a declarant - Even otherwise, the intent of legislature cannot be in such a way that an assessee who pays some amount either suo motu prior to demand or after demand be put in worse condition than an assessee who does not pay any amount after demand and avails the benefit of the scheme - Action of Designated Committee by first deducting the amount of deposit made by petitioners during enquiry, investigation or audit and, thereafter, extending relief to the petitioners by computing the amount of tax due on the outstanding amount, is not as per the mandate of the Scheme - Clause 2 (iv) of Circular No. 1072/05/2019/CX dated 25.09.2019, to the extent it provides that tax relief is to be granted on the outstanding duty amount, as against the amount of duty recoverable, has an effect of altering the effect of the Scheme itself and cannot be given effect to - Designated Committee is directed to re-compute the amount payable by petitioners under the scheme in view of the observations made herein above, and, to issue revised SVLDRS-3 Form to the petitioners within a period of four weeks from the date of this order - Writ applications are allowed in the manner indicated: High Court  [para 22, 26, 28, 29, 30]

- Petitions allowed: JHARKHAND HIGH COURT