2022-TIOL-1177-HC-DEL-IT

PVR Ltd Vs CIT

On appeal, the High Court observes that the ITAT erred in law in holding that the difference between the price at which stock options were offered to employees of the assessee-company under ESOP and ESPS and the prevailing market price of the stock on the date of grant of such options was not allowable revenue expenditure under Section 37(1) of the Income Tax Act, 1961. Accordingly, the judgment of the ITAT is set aside.

- Appeal allowed: DELHI HIGH COURT

2022-TIOL-1031-ITAT-MUM

Alag Securities Pvt Ltd Vs CIT  

Whether percentage of commission earned by brokers on providing accomodation entries, has to be computed on basis of total turnover - YES: ITAT

- Assessee's appeal partly allowed: MUMBAI ITAT

2022-TIOL-1030-ITAT-PUNE

ACIT Vs Tata Autocomp GY Batteries Pvt Ltd

Whether where deduction is allowed in respect of Administrative Charges paid by assessee-company, the AO cannot then proceed to disallow these expenses - YES: ITAT

- Revenue's appeal dismissed: PUNE ITAT

2022-TIOL-1176-HC-MAD-GST

D K Enterprises Vs Assistant/Deputy Commissioner (ST)

GST - Petitioner has sought a mandamus directing the respondents to release the goods, life-saving drugs, cleared from Chennai Seaport Customs and seized/detained on 13.08.2022 at 2.15 am by the Roving squad of the Commercial taxes department together with the conveyance/lorry, forthwith. Held: There are serious flaws in the procedure followed as neither the order of detention nor SCN has been issued within time - A combined appreciation of the proviso u/s 129(1) and 129(3) makes it apparent that the order of detention is intended to be issued prior to the issuance of the SCN, which, in terms of s.129(3) must be issued within 7 days from the date of detention/seizure - Counsel for Revenue emphasises that the procedure was within time, arguing that the limitation of 7 days expires on a holiday, 19th August 2022 being Janmashtami and excluding 20th August and 21st August, being Saturday and Sunday, when the GST department does not function, the notice was liable to be issued only on 22.08.2022 - Bench notices that, admittedly, the notice has NOT been issued on 22.08.2022 but only on 24.08.2022 - It is pertinent to note that vide an amendment brought to clause 2(e) of Circular 41/15/2018-GST dated 13.04.2018 vide Circular 49/23/2018-GST dated 21.06.2018, the expression 'three working days' in the April 2018 Circular has been replaced by the expression 'three days' and which makes it clear that in the matters of interception, seizure and detention, the GST department does not recognise the concept of ‘working day' and ‘holiday' and rightly so, since substantial civil rights of the parties are at stake by the aforesaid powers - Inasmuch the decision whether such detention is required at all and the fate of such detention must be decided expeditiously by the officials concerned - Roving squad of the GST department knows no distinction between working and non-working days and the wing works 24x7, the year through - In such circumstances, neither the petitioner nor the respondents can have the luxury of reference to a holiday to delay or protract the proceedings - As the detention is a pre-requisite for the issuance of the SCN, the order of detention is necessarily to be issued prior to the 7th day from the commencement of detention/seizure of the conveyance/consignment in question, being in this case, on or before 20.08.2022, to validate, both the interception and SCN - There is no necessity to refer to Section 10 of the General Clauses Act, 1897 in the present situation - The GST department has, by the amendment brought on 21.06.2018 (supra) effaced the difference between a ‘working day' and a ‘holiday' - Contention of the Revenue counsel that the directions of the officer to the driver should be read to be an order of detention is rejected outright - There is a critical difference between directing the driver to station the vehicle carrying the consignment and not to move the same until further orders when compared with an order of detention in form GST MOV-06 (that has not been passed in this case) - To say that Form GST MOV-02 would tantamount to be an order of detention is entirely misconceived - Procedure that has been followed by the respondents in this matter is completely contrary to statutory requirements as well as the instructions issued - Contention of the Revenue that the circular has no statutory force and the instructions issued thereunder are to be taken as flexible are rejected - Mandamus as sought for is granted and the petition is allowed: High Court [para 7, 8, 9, 10, 12, 14, 16, 17]

- Petition allowed : MADRAS HIGH COURT

2022-TIOL-826-CESTAT-AHM

Solaris Chemtech Industries Ltd Vs CCE & ST

CX - Appeal filed by appellant against denial of re-credit of Cenvat credit under Notification No. 39/2001-C.E. - Claim of appellant is that if they by choice have not availed cenvat credit, then no credit is "available" to appellant, and therefore, they have complied with restriction imposed in para 2A of Notification No. 39/2001-CE - Claim of Revenue is that if appellant could have availed credit and have chosen not to avail the credit then the credit that appellant could have availed is to be treated as credit available to appellant and since the appellant failed to use said credit, they have violated condition prescribed in para 2A of Notification No. 39/2001-C.E. - The notfn was introduced in order to promote the industry in disaster affected region of Kutch as a relief - Notification also puts certain restrictions on inputs that could be used for said purpose as is apparent from para 2A of said Notfn - Reason for introducing restriction of full utilization of credit available is that appellant does not misuse the exemption by taking credit and not using the same - Thereby, accumulating the credit and using it on a latter date when they get out of notfn - If appellant does not take any credit then no such mal-practice can happen and no credit can be accumulated - Moreover, it also implies that credit "available" would mean Cenvat credit taken and available in credit of Cenvat account and not the credit that appellant could have possibly taken but did not avail - Moreover, since by not taking credit quantum of refund admissible to appellant remains as same as it would have had appellant taken the credit and utilized the same - Rejection of rebate claim on this ground is without any basis: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

2022-TIOL-825-CESTAT-AHM

Gujarat Chamber Of Commerce And Industry Vs CCE

ST - Appellant have admittedly paid service tax on service of Club or Association and same was not challenged by them at any point of time - They filed refund claims on 27.01.2020 for period from 2010-2011 to 2017-2018, after one year limit which is prescribed under Section 11B of CEA, 1944 - All the parties in Culcutta Club Limited was litigating their own case and not on behalf of their members, therefore, it cannot be said that appellant was anywhere concerned with cases decided by Apex Court in Culcutta Club Limited case - Benefit of limitation on basis of Culcutta Club Limited case cannot be extended to appellant - Appellant have admittedly paid service tax under head of Club and Association - Therefore, refund of such service tax shall be governed by Section 11B ibid as held by Supreme Court in case of Mafatlal Industries Limited 2002-TIOL-54-SC-CX-CB - Commissioner (A) considered in detail, the submission of appellant in as much as they claimed that they being a member of Federation of Indian Chambers of Commerce and Industry (FICCI) should get the benefit of Culcutta Club Limited case as FICCI was one of the party in that case - On going through the finding of impugned order carefully, no infirmity found in impugned order - Refund of appellant is clearly hit by limitation in terms of Section 11B of CEA, 1994 - Accordingly, impugned order is upheld: CESTAT

- Appeals dismissed: AHMEDABAD CESTAT

2022-TIOL-824-CESTAT-MAD

Raj Brothers Shipping Pvt Ltd Vs CC

Cus - The only issue arises is, whether penalty under Sections 112(a) and 114AA of Customs Act, 1962 is correct - From a perusal of SCN as well as order of lower authorities, no reliance found on any corroborative piece of evidence other than mere statements of co-noticees - Further, that the Preventive Officer Mr. G. Raghava is said to have stated that he came to know only in November 2017 that said container was removed illegally from CFS when such illegal removal had happened on 16.09.2017, is a matter of serious concern since the consignment was admittedly in custody of CFS and for nearly two months, Preventive Officer was not even aware of alleged illegal removal - Revenue has failed to bring on record any material evidence to justify imposition of penalty, more so when they did not even allege that act or omission on the part of these appellants has led to confiscation of goods - Accordingly, penalty imposed, as confirmed in impugned order, cannot be sustained: CESTAT

- Appeals allowed: CHENNAI CESTAT