2022-TIOL-1022-ITAT-NAGPUR

Late Vasantrao Gopalrao Ghonge Vs DCIT

Whether additions framed u/s 68 of the Act can be sustained where certain income of the assessee is erroneously treated as unexplained income - NO: ITAT

- Appeal partly allowed: NAGPUR ITAT

2022-TIOL-1021-ITAT-PUNE

Mansukh Timbadia Vs ACIT

Whether no addition can be made by AO merely on basis of presumption, surmises and conjectures - YES : ITAT

- Assessee's appeal allowed: PUNE ITAT

2022-TIOL-1020-ITAT-MUM

ITO Vs Volga Innovations

Whether additions on account of bogus purchases are valid where based solely on information received from Sales Tax Department & involving no independent investigation by the lower authorities - NO: ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2022-TIOL-1170-HC-DEL-GST

Curil Tradex Pvt Ltd Vs Commissioner Delhi GST

GST - The present petition relates to an order passed by the relevant Sales Tax Officer wherein the registration held by the petitioner-company had been cancelled - The order had been preceded by a SCN proposing cancellation of registration on grounds that the petitioner-company was non existent entity - However, the Revenue suspended the registration of the petitioner w.e.f. the date of the issuance of the show cause notice.

Held - It is seen from the record that the petitioner was not given any notice proposing to inspect its facility - Considering Rule 25 of the CGST Rules, a perusal of the rule shows that, if after the grant of registration, the proper officer is satisfied that physical verification of the place of business of the concerned person is required, the proper officer may get such verification of the business place carried out, albeit, in the presence of the said person, and thereafter, have the verification report along with other documents including photographs uploaded in Form GST REG30 on the common portal within 15 working days following the date of such verification - In the present case, what is not in dispute is that physical verification was carried out by the Revenue, albeit, without having the petitioner's authorized representative remain present; although, concededly, insofar as the second part of the rule is concerned, which required uploading of the verification report and other documents including photographs, we are told that the same was done - Although the inspection of the petitioner's business premises was carried out, no prior notice was given by the respondents/revenue - Although a person was found at the site and who was a worker of the petitioner, had the Revenue given notice/intimation of the inspection, it could have been carried out in the presence of the authorized representative of the petitioner and hence lent greater authenticity and credibility to the inspection report - Petitioner to file application for revocation of order of cancellation of registration, in 15 days' time: HC

- Writ petition allowed: DELHI HIGH COURT

2022-TIOL-1169-HC-MP-GST

Elora Tobacco Company Ltd Vs UoI

GST - Petition filed seeking review/recalling of impugned order - By way of said petition 2022-TIOL-1025-HC-MP-CX petitioner challenged the action of respondents whereby they called the Chartered Engineer in factory premises to assess the production capacity of cigarette manufacturing machine - Court has dismissed the petition relying on section 145 of CGST Act, 2017 which gives authority to respondents to seek an opinion from an expert - Petitioner has raised various grounds that said petition was ought to have been allowed as entire search was not conducted by a proper officer to determine and verify production capacity of machine is clearly outside section 67 (1) of CGST Act - On the basis of search conducted by respondent, a SCN has been issued to petitioner and matter is pending before adjudicating authority - So far the validity of report in respect of capacity of machine is concerned same is liable to be considered by adjudicating authority - Petitioner may assail the validity of opinion/ report given by Chartered Engineer - Scope of review is very limited only to extent of an error on the face of record - Respondent on advance notice submits that in compliance with directions issued in petition, immediately the machine as well as DG sets have been released to petitioner - Review petition is nothing but a misuse of process of law and wasting valuable time of the court with intention to take one more chance instead of approaching Supreme Court of India - Hence, the review petition is dismissed with a cost of Rs.25,000/-: HC

- Writ petition dismissed: MADHYA PRADESH HIGH COURT

2022-TIOL-1168-HC-MAD-GST

Lucky Mydeen Briyani Vs Commissioner

GST - The petitioner, a proprietor of Tvl.Lucky Mydeen Briyani served with a notice for cancellation of Registration - During Covid-19 pandemic period, petitioner had not filed his returns and thereafter, he had not conducted any business so that he filed only nil returns - This case is quite similar to cases of petitioners in Tvl.Suguna Cutpiece 2022-TIOL-261-HC-MAD-GST - There some of the petitioner had filed an appeal beyond period of limitation either for filing application for revocation of cancellation, while some of them had directly filed a writ petition against the order cancelling registration - While some of them filed appeal beyond statutory period of limitation, there was further delay in filing petition - However, it was held that no useful purpose will be served by keeping those petitioners out of GST regime, as such assessee would still continue to do business and supply goods/services - Petitions are allowed subject to conditions one of which is that on payment of tax, penalty and uploading of returns, registration shall stand revived forthwith : HC

- Writ petitions allowed: MADRAS HIGH COURT

2022-TIOL-1167-HC-AHM-GST

Sumilon Polyster Ltd Vs UoI

GST - Petitioners have challenged the action of authorities levying interest on delayed payment of tax as per section 50 of CGST Act, 2017 and Gujarat Goods and Services Tax Act, 2017 on the gross tax liability of petitioners instead of net liability - It is submitted that in view of amendment of section 50(1) w.e.f. 1st day of July, 2017 by inserting proviso would redress the grievance raised by petitioners of charging interest on gross amount of GST liability - Petitions are disposed of as having become infructuous in view of amendment of section 50(1) of CGST Act by substituting the proviso w.e.f. 1st day of July, 2017 as per section 112 of Finance Act, 2021 which has been made effective vide Notfn 16 of 2021 - Respondents are directed to give effect to aforesaid amendment within a period of twelve weeks - Interim relief granted earlier stands vacated: HC

- Petitions disposed of: GUJARAT HIGH COURT

2022-TIOL-1171-HC-DEL-CUS

Spraytec India Ltd Vs Addl. Director General DRI

Cus - The petitioner-company imported actuators and aerosol valves meant for perfumes and toilets sprays - The imported goods have been classified by the petitioner under various sub-heads of chapter 84 - The classification head according to the petitioner is Customs Tariff Heading (CTH) 84248990 - The Revenue claimed that the subject goods should have been classified under CTH 9616, attracting higher rate of duty.

Held - The Revenue carried out final assessment, wherein the goods were assessed against CTH 84248990 - In interregnum, the Customs Authority for Advance Ruling had been approached by the petitioner qua the issue concerning classification of the goods - It is not in dispute that on 05.10.2021, CAAR ruled in favour of the petitioner insofar as the issue concerning the classification was concerned. To put it pithily, CAAR ruled that the goods imported by the petitioner fell under CTH 84248990 - The petitioner was aggrieved by the fact that fresh summons had been served upon it in March 2022 i.e., summons dated 02.03.2022 and 09.03.2022 - As the Revenue issued SCN, the investigations ceased - As of now, classification dispute is settled in favor of petitioner - Since the show cause notice was issued during the pendency of the writ petition, there is no prayer concerning the same - Leave granted to petitioner to amend the writ petition to assail the show cause notice - List matter on 14.09.2022: HC

- Case deferred: DELHI HIGH COURT

2022-TIOL-1165-HC-MUM-CX

Godrej And Boyce Manufacturing Company Ltd Vs UoI

CX - Between the years 2008 and 2009, respondent issued five SCNs to the petitioner alleging that they had contravened the provisions of the CCR, 2004 - Petitioner replied to the SCN - After a lapse of almost 13 years from the date of the last impugned notice, the respondent fixed a personal hearing on 28 October 2021 - Petitioner filed written submissions pointing out that the said proceedings now initiated were non est and bad in law; that in view of various judgments passed by the Bombay High Court, since the SCNs had not been acted upon within a reasonable period of time, the same were now stale and consequently any adjudication based thereon was bad in law and void - After a period of over five months, another date of hearing was fixed on 11th March 2022 and which was attended by the petitioner pursuant to which the impugned order dated 30th March 2022 was passed confirming the demand of Rs.1,65,12,218/- along with interest and which amounted to 200% of the duty amount - Aggrieved, the Petitioner has filed the present petition. Held: Even where the statute does not prescribe a time limit for adjudication, a SCN must be adjudicated upon within a reasonable time - Adjudication proceedings, delayed for more than a decade defeats the very purpose of issuing SCNs and such delayed adjudication is bad in law - An answering party who does not hear from the authorities for more than 10 years after issuance of SCN and submission of reply thereto is justified in taking the view that the reply had been accepted and the authorities had given a quietus to the matter - Present case is squarely covered by the law laid down in the case of Parle International Ltd. - 2020-TIOL-2032-HC-MUM-CX and Raymond Ltd.- 2019-TIOL-1864-HC-MUM-CX - There has been a deliberate dereliction of duty on the part of Respondent No. 3 because Respondent No. 3 has brazenly glossed over and ignored the specific submissions and case law relied upon by Petitioner pertaining to adjudication of stale show cause notices without so much as even attempting to deal with the same - Respondent No. 3 in fact acted in an ex facie pre-determined manner with the sole objective of upholding the contention/action of the Revenue at any cost - Contention that Petitioner has available an alternate and equally efficacious remedy by way of Appeal is misplaced and of no substance in the facts and circumstances of the present case - The present Writ Petition is maintainable as the challenge in the present Writ Petition arises on account of the contravention of the rules of procedural fairness by Respondent - Another aspect which also highlights the inequitable manner in which Respondents have acted is the fact that even though the impugned notices had been transferred to call book, Respondents continued to compute interest on the duty amount mentioned therein - Petition is allowed in terms of prayer clause (a) viz. impugned SCNs and the impugned order dated 30 March 2022 are quashed: High Court [para 11, 12]

- Petition allowed: BOMBAY HIGH COURT