2022-TIOL-74-SC-IT-LB

Pr.CIT Vs Khyati Realtors Pvt Ltd

Whether merely stating a bad & doubtful debt as irrecoverable write off without appropriate treatment in accounts, as well as non-compliance of conditions u/s 36(1)(vii), 36(2), and Explanation to Section 36(1)(vii) would not entitle assessee to claim a deduction - YES: SC LB

Whether when expenditure relates to business, and the claim for its treatment under other provisions are unsuccessful, application of Section 37 is per se not excluded - YES: SC LB

- Revenue's appeal allowed: SUPREME COURT OF INDIA

2022-TIOL-952-ITAT-PUNE

DCIT Vs Kishor Shankar Garve

Whether deduction of profits form housing project u/s 80IB(10) can not be allowed if assessee does not make claim in revised return filed - YES : ITAT

- Revenue's appeals allowed: PUNE ITAT

2022-TIOL-951-ITAT-DEL

ITO Vs Shardha MH One TV Network Pvt Ltd

Whether since there is no provision of section 56(2)(viib) in statute at time of receiving share application money in FY 2010-11, this provision cannot be applied and no addition can be made based on same - YES : ITAT

- Revenue's appeal dismissed: DELHI ITAT

2022-TIOL-950-ITAT-DEL

Zoetic Infrastructure And Constructions Pvt Ltd Vs ITO

Whether dissolution after struck off of name of company by Register of Companies has to be distinguished with dissolution pursuant to orders of High Court or amalgamation of Companies - YES: ITAT

Whether preemptive assessments made against companies whose name have been stuck off by Registrar of Companies, for statutory defaults under Companies Act, are valid and cannot be set aside on Jurisdictional defect - YES: ITAT

- Matter remanded: DELHI ITAT

2022-TIOL-1129-HC-ORISSA-GST

Flora Vs UoI

GST - Cancellation of registration - Petition is filed against the order passed by the Additional Commissioner, GST (Appeals) whereby the appeal filed has been rejected on the ground that the same was presented beyond the statutory period prescribed u/s 107(1) of the Act - Petitioner submits that the appellate authority failed to take cognisance of the Apex Court order dated 23 September, 2021 - 2021-TIOL-246-SC-MISC-LB , passed in connection with surge of COVID-19 and wherein it is mentioned that for computation of limitation for institution of proceedings, the period from 15th March 2020 to 2nd October 2021 would stand excluded.

Held:  It is undisputed fact on record that as the petitioner received the order of cancellation of registration on 5th December 2019, the last date for filing appeal was 4th April 2020 but the appeal being filed on 13th April 2021, the appeal should have been treated as filed within the period of limitation in view of Category III specified in the apex Court's order dated 23 September 2021 - 2021-TIOL-246-SC-MISC-LB - Additional Commissioner conspicuously ignored to keep in view the purport of the said order, therefore, there is a warrant for intervention in the said order impugned - Order is set aside and appeal is restored to file - Appellate authority to proceed with the appeal accordingly - Petition is disposed of: High Court [para 6, 7]

- Petition disposed of: ORISSA HIGH COURT

2022-TIOL-1128-HC-P&H-GST

Xchanging Technology Services India Pvt Ltd Vs Pr.Commissioner

GST - Challenge is to the order dated 15.05.2020 passed by the adjudicating authority rejecting the refund claim that had been filed by petitioner - Further challenge is to the order dated 14.12.2021 passed by the Appellate authority affirming the order of the lower authority.

Held: Bench is of the considered view that there would be no requirement of delving into the merits of the case as a clear case for remand back to the adjudicating authority is made out - On 23.04.2020, respondent no.2 issued a SCN for rejection of refund and on 28.04.2020, the petitioner sought an extension for submitting a reply till 30.06.2020 citing pandemic and also relying on notification 35/2020-CT as per which extension was envisaged even for purposes of filing a reply up to 30.06.2020 - However, the lower authorities rejected the refund claim without even dealing with the request made by petitioner - Contention being raised by counsel for revenue is that the notification was meant for ensuring that taxable person/lawyers/litigants do not have to come physically to participate in the proceedings but not in the matter of filing of reply; that every refund application is required to be disposed of within 60 days and if not done, interest is required to be paid; therefore, the time extension sought was not a feasible option - Bench observes that the submissions being made are misconceived and not well-founded; extension of time covers all situations relating to covid-19 pandemic; that it does not lie in the mouth of the respondents to take a stand that the extension notification would apply only in such situations where compliances are to be made only physically - Impugned order cannot be sustained - Matter is remanded back to the adjudicating authority - 3 weeks time is given for filing of reply - Petition is disposed of: High Court 

- Petition disposed of: PUNJAB AND HARHAYA HIGH COURT

2022-TIOL-100-AAR-GST

Sivantos India Pvt Ltd

GST - Applicant is engaged in the business of trading of hearing aids and their parts and accessories - They seek advance ruling in the matter of classification of parts and accessories suitable for use solely with hearing aids; the rate of tax and whether they are exempted in terms of notification 2/2017-CTR, Sr. no. 142.

Held: Parts & accessories of hearing aids are covered specifically under heading 9021 9010 - The rate of tax applicable on supply of such parts & accessories of hearing aids is 18% in terms of entry no.453 of Schedule III to the Notification No.1/2017-CTR - This is because hearing aids are excluded from Entry no. 221 of Schedule II which attracts GST @12% - Entry No.142 of Notification 2/2017-CTR is not applicable to the supply of parts & accessories of hearing aids and thus the said goods are not entitled for exemption - Clarification provided in the Circular 113/32/2019-GST dated 11.10.2019 is regards to classification of parts of ophthalmic equipment and not relevant to the facts of the present case: AAR

- Application disposed of: AAR

2022-TIOL-99-AAR-GST

Avani Infosoft Pvt Ltd

GST - Mara Mitras - Applicant entered into a service contract with M/s Isha Outreach, a public charitable trust, Coimbatore to provide agricultural extension services for tree based agriculture to the farmers of Cauvery River Basin - Applicant seeks to know as to whether the said services are exempt under Entry no. 57 of the notification 9/2017-ITR or any other notification.

Held:  From the scope of the work, it is seen that the applicant through their Mara Mitras not only educate and train farmers with regard to agro forestry through scientific research and knowledge but are also involved in handholding the farmers - In view of explanation 2(c) appended to notification 9/2017-ITR , the term ‘agricultural extension' is defined to mean application of scientific research and knowledge to agricultural practices through farmer education or training - Thus, the services of the applicant are covered under agricultural extension services and hence are exempted in terms of Entry no. 57 of the notification: AAR

- Application disposed of: AAR

2022-TIOL-98-AAR-GST

Hyundai Rotem Company

GST -   Applicant was a successful bidder to the tender invited by Delhi Metro Rail Corporation Limited (DMRC') for design, manufacture, supply, testing, commissioning and training of 504 Standard Gauge Cars (passenger rolling stock) including training of operation & maintenance personnel and supply of spares & manuals - Applicant seeks to know as to whether the supplies made under Cost Centres D, G and H (to the extent of training services) to DMRC are to be considered as independent supplies of goods and services and GST rate is applicable depending upon the nature of activity performed under such cost centres? Or whether the supplies made by all cost centres are to be considered as 'composite supply' .

Held: Facts and circumstances brought out in the present application are similar to those in which advance ruling was sought by M/s BEML, Bengaluru and where it was held by AAR - 2021-TIOL-136-AAR-GST that the supplies made by the applicant under cost centres form a composite supply wherein the principal supply is the supply of intermediate cars - However, the appellate authority AAAR - 2021-TIOL-30-AAAR-GST set aside the ruling of AAR and allowed the appeal by concluding that supplies made under Cost Centres are to be considered as independent supplies of goods and services - However, M/s BMRCL, the recipient of supplies made by M/s BEML, being the aggrieved party filed an appeal before the Karnataka High Court and no stay has been granted - Therefore, AAR is inclined to follow the observations drawn by AAAR (supra) - Held, therefore, that Supplies made under Cost Centres D, G and H (to the extent of training services) of Contract 'RS-10' to DMRC are to be considered as independent supplies of goods and services and GST rate applicable depending upon the nature of activity performed under such cost centres - This ruling is subject to the outcome of the judgment of the Hon'ble High Court of Karnataka in the appeal filed by M/s BMRCL: AAR

- Application disposed of: AAR

2022-TIOL-73-SC-ST

CC & CE Vs Jyoti Ltd

ST - Respondent assessee company is engaged in the manufacture of mechanical, engineering and electrical goods - In respect of certain buyers, the assessee merely sold their products - In respect of some buyers, at their request, the assessee had undertaken, at the customer's site, certain activities like construction, civil works including installation, erection and commissioning of machinery to the specific requirements of the customers - According to the Revenue, the assessee collected a sum of Rs.36,95,14,983/- towards post clearing activities relating to the aforesaid period on which the assessee was liable to pay the service tax of Rs.1,84,75,749/ - - The original authority dropped the show cause notice on considering the various contracts by opining that the services rendered by the assessee cannot be said to be rendering services of consulting engineering - Commissioner took up the order by way of suo moto revision and held that the services rendered by the assessee can be said to be rendering of services of the nature of "advice", "consultancy" or "technical assistance" while executing the works contract and, therefore, can be said to be services of consulting engineer and were liable to pay the service tax - Assessee filed appeals and by a Majority decision the CESTAT set aside the impugned order and allowed the appeals with consequential relief - Revenue has, therefore, preferred appeals before the Supreme Court.

Held: Considering the various services rendered by the assessee like erection/installation/commissioning of goods at customers' site and incidentally they may also be providing the services of drawing, design etc., it cannot be said that the services rendered by the assessee was as a consulting engineer - The contract can be said to be 'works contract' - Hence, the assessee cannot be said to be rendering the services as a consulting engineer and, therefore, liable to pay the service tax - Therefore, once, the assessee at the relevant time cannot be said to be consulting engineer and/or rendering services as a consulting engineering, the assessee is not liable to pay the service tax on the 'works contract' or the contract rendering services as consulting engineer for the period under consideration namely July, 1997 to December, 2000 - No error has been committed by the Tribunal in setting aside the order passed by the Commissioner and restoring the Order-in-Original passed by the Deputy Commissioner dropping the show cause notice and demand of service tax and penalty considering the nature of services rendered by the assessee - Bench is in complete agreement with the view taken by the Tribunal - Revenue appeals fail and are dismissed: Supreme Court [para 4, 4.1]

- Appeals dismissed: SUPREME COURT OF INDIA

2022-TIOL-1131-HC-DEL-ST

Pr.CCT Vs Anglo American Service India Pvt Ltd

ST - Since the instructions/circulars dated 17.08.2011, 26.12.2014 and 22.08.2019 are binding on the appellant/revenue and the revenue involved in each of the appeals is, admittedly, below the prescribed threshold, these appeals will have to be dismissed - Since refund sought for by the respondent/assessee has been hanging fire for a very long time, the appellant/revenue should expedite the remittance of monies along with statutory interest: High Court [para 7, 8]

- Appeals dismissed: DELHI HIGH COURT

2022-TIOL-1130-HC-DEL-CUS

CC Vs Thermoking

Cus - Refund of SAD - Appeal is directed against the order dated 24.11.2021 = 2022-TIOL-41-CESTAT-DEL passed by CESTAT - Issue which arises in the instant appeal, as in the Premier Timber case [ - 2022-TIOL-1032-HC-DEL-CUS ], concerns the application of limitation vis-à-vis refund sought qua Special Additional Duty of customs, levied under section 3(5) of the Customs Tariff Act, 1975 - In the case of Premier Timber, it was held that limitation cannot be prescribed by a notification - Therefore, the appeal preferred by the revenue is dismissed and order dated 24.11.2021 passed by the Tribunal is sustained - appellant/revenue will now process the application for refund preferred by the respondent/assessee [para 4.5, 5, 5.1, 6]

- Appeal dismissed: DELHI HIGH COURT