2022-TIOL-1113-ITAT-BANG

Think And Learn Pvt Ltd Vs Pr.CIT

Whether there is no prejudice to interest of Revenue when payments made to More Indeas, UAE has already been added by AO in order of assessment - YES : ITAT

- Assessee's appeal allowed: BANGALORE ITAT

2022-TIOL-1112-ITAT-PUNE

DCIT Vs Lalitkumar K Jain

Whether an amount loaned from one company to another company in ordinary course of business, is to be treated as deemed dividend, in the hands of a person who is a major shareholder in the lender-company - NO: ITAT

- Revenue's appeal dismissed: PUNE ITAT

2022-TIOL-1111-ITAT-RAJKOT

Jagjit Builders And Developers Vs Pr.CIT

Whether power of revision is to be exercised only when the double conditions of the original assessment order being erroneous as well as prejudicial to revenue's interest, are satisfied - YES: ITAT

- Appeal allowed: RAJKOT ITAT

2022-TIOL-1247-HC-ALL-GST

Techno Fabs Vs Additional Commissioner

GST - Goods of the petitioner in movement from Kolkata to Budaun were seized on 11.02.2018 on the ground that they were not accompanied with the E-way bill - Submission of the petitioner is that during the period from 1.2.2018 to 31.3.2018 the requirement of E-way bill was not applicable to the transaction of the petitioner. Held:  Division Bench of this Court in Writ Tax No. 587 of 2018 (M/S Godrej and Boyce Manufacturing Co. Ltd. vs. State of U.P. and two others) decided on 18.9.2018 - 2018-TIOL-2868-HC-ALL-GST and in para 56 it has been held that the goods were not covered with the requirement of E-way bill during 1.2.2018 to 31.3.2018 - The goods in the present case were seized on 11.02.2018 that is only for the reason they were not accompanied with the E-way bill - Since the requirement of the E-way bill was not applicable for the petitioner during the above period, the seizure itself is bad in law - Impugned seizure order dated 11.02.2018 is quashed and all consequential proceedings stands dropped - Petition is allowed: High court 

- Petition allowed: ALLAHABAD HIGH COURT

2022-TIOL-1246-HC-UKHAND-GST

Rajesh Kumar Dudani Vs State Of Uttarakhand

GST - Petitioner seeks anticipatory bail - Counsel for respondent submitted that under a planned manner, the applicant had evaded payment of tax; that one Surendra Singh was trading with some 18 firms, out of which three were belonging to the applicant, two in his own name and one in the name of his wife; that fake invoices were generated; that there is clear money trail; that huge quantity of the goods were allegedly shown transported in some vehicles, which had very less load bearing capacity; that certain vehicles on which the goods were shown to have been transported were, at the relevant time, spotted at different States through Fastag payment; that after the interim protection (from arrest) was given to the applicant by the Court he did not cooperate with the enquiry and evaded questions; that it cannot be said that anticipatory bail has to be granted in each and every case inasmuch as each case depends upon its facts and circumstances; that the liability which is estimated against the applicant/petitioner is about Rs.393 lakhs. Held: The allegations are much grave - It is the case of generating fake and forged invoices so as to claim ITC - Respondent no.2 has given categorical details of such dubious transactions and has also submitted as to how in one day, the money was routed in different accounts - The applicant transferred the money in his wife's account and, subsequently, from her account, it comes to the applicant's account - It is a kind of act, which effects the economy of the country - Added to it is the non-cooperative attitude of the applicant during enquiry - Considering the gravity of the offence and its implications, Court is of the view that the applicant is not entitled for anticipatory bail - Application is dismissed: High Court [para 15, 16]

- Application dismissed: UTTARAKHAND HIGH COURT

2022-TIOL-1245-HC-AHM-GST

Munavver Ismail Memon Vs State Of Gujarat

GST - Petitioner seeks bail in respect of the alleged offences punishable u/s 132 of the Act, 2017 - Applicant was arrested on 24.03.2022 and is since then in judicial custody - As his bail applications were rejected by the Magistrate Court, the present application - Alleged  modus was supplying goods without issuance of any invoice for which the applicant has created software that was used for tax evasion and showing less sales of business items - It is alleged that the applicant has made hidden (unaccounted sales) in cash as well as formed kachcha invoices which were not included in accounts, which he has to maintain as per the law - It is alleged that the applicant has caused loss to the Government Exchequer to the tune of Rs.10.94 crore. Held:  Court is of considered view that, merely raising the contention that investigation is still going on is not enough, but, department should have pointed out that the further custody of the applicant is necessary - It is on record that no liability is fixed or determined as per the statutory provisions of the Act - It is the right of the assessee to file an appeal against the assessment subject to deposit of the 10% disputed liability which may not exceed Rs.2 crore - In the facts of the present case, Rs.39,88,318/-, has been recovered during the course of investigation from the applicant - In such circumstances, when trial of the case would not likely to conclude in a reasonable time and the applicant is in custody since 24.03.2022 and considering the bonafide shown by the applicant to deposit the amount, Bench is inclined to release the applicant on bail subject to deposit of Rs.60 lakhs within a period of six months in six equal instalments from the date of his release - If the applicant fails to comply with the condition, the bail granted to the applicant shall stands cancelled automatically - Application is allowed and the applicant is ordered to be released on regular bail subject to conditions as laid down: High Court [para 10, 11]

- Application allowed: GUJARAT HIGH COURT

2022-TIOL-898-CESTAT-MUM

Pepsico India Holdings Pvt Ltd Vs CCE

CX - Appellants are engaged in the manufacture of "Aerated Waters" - The aerated water manufactured by them is bottled in glass bottles - In their store, the goods manufactured by them as well as other units (received on payment of duty) are stored - During course of handling and storage some of the glass bottles break which are removed to scrap yard - Appellant reversed amount of Rs 5,47,217/- in September 2010 towards the CENVAT credit availed on such breakages - Revenue issued show cause notices in January/May/July/August 2010 as  proposing to recover excise duty in respect of these breakages treating them as finished goods beverages, along with interest and penalty - Period involved is from FY 05-06 to November 2009 - Impugned demand notices were confirmed and upheld by the lower authorities, hence the present appeals. Held: Issue is no longer res integra inasmuch in the appellant's own case the issue has been decided in favour of appellant - Insofar as the impugned order(s) is concerned, reliance placed by the Commissioner (Appeal) on the Circular 930/20/2010-cx dated 09.07.2010 [clarifying that the Circulars 08.09.1971 and 17.09.1975 were issued in the context of breakage of glass bottles inasmuch as breakage of bottles to the extent of 0.5% of total production was allowed to be written off in the accounts and when CENVAT/MODVAT scheme was not available and after introduction of CENVAT scheme, remission of duty under rule 21 ought to be claimed on the goods lost/damaged before clearance, subject to reversal of credit on inputs] to decide the issue against the appellant for the period prior to issuance of the said circular is contrary to the fact that during the period of dispute there were two circulars of 1971 and 1975 which have been followed by the appellant - It is not even stated in the impugned order that these two circulars were not applicable to the appellant - It is also noted that the MODVAT credit scheme was introduced in the year 1986 and CENVAT credit scheme is refined form of the said scheme - These circulars continued to hold field throughout till 09.07.2010 - Observations made by the Commissioner (Appeal) in para 8 of the impugned order, therefore, cannot be sustained for this simple reason - However, Bench notes that substantial compliance with the circular of 2010 has been made by the appellant by reversing the CENVAT Credit on the inputs used in respect of the finished goods contained in the breakages - Thus, taking note of the reversal made, the impugned order cannot be sustained - Appeals are allowed: CESTAT [para 4.6]

- Appeals allowed: MUMBAI CESTAT

2022-TIOL-897-CESTAT-MUM

Auto Cars Vs CCE & ST

ST - Allegation is that the appellant is p roviding services falling under the taxable category of 'Clearing & Forwarding Agent Services' but are not registered under the said category of service; that they appeared to have vivisected the services so provided to their clients and thereby indulged in evasion of service tax on the consideration received, reflected as 'transportation income' in their books of accounts claiming to be the consideration received on account of 'GTA Services' so provided to their clients wherein the responsibility to meet the service tax liability lies with clients under reverse charge with 75% abatement - A rgument of  appellant is that the legislative disbarment of levy of tax on 'goods transport agency' service in the hands of the provider has been sought to be overcome by inclusion of the value thereof in 'support service of business and commerce' on which liability has been discharged by them by contriving the scope of 'clearing and forwarding agency service' in breach of law as enacted and as judicially interpreted - Appellant contends that there is no provision in law, including section 65A of Finance Act, 1994 relied upon in the impugned order, which mandates the merger of two separate and distinct services within a third taxable service merely for overcoming a statutory segregation and with intent to extract levy that is not authorised by law. Held: The two services sought to be amalgamated are not only independently taxable but differs in the mechanism of collection and should, intuitively, be immiscible - The provisions of section 65A of Finance Act, 1994 and section 66F of Finance Act, 1994 have not been appreciated in its context - The said statutory enablement is intended to be invoked when the nature of the service, and the consideration thereto, are not perceptibly divisible and differential treatment necessitates adoption of the appropriate rate of tax to the whole - In the present dispute, the rate of tax does not pose any difficulty; it is only the availability of abatement to isolate the 'service' component and the transference of responsibility to discharge liability that distinguishes - Bench has no doubt that the two services are rendered independently even if the transactions of the appellant are with the same recipient and, therefore, is not 'clearing and forwarding agency' service - The treatment of 'goods transport agency' provided after 1st July 2012 continues to remain unchanged and the substitution of 'support service of business and commerce' or of 'clearing and forwarding agent' service with the omnibus 'service' has not altered the delineation to offer any support to the finding in the two impugned orders - Impugned orders are set aside and the Appeals are allowed: CESTAT [para 15, 16]

- Appeals allowed: MUMBAI CESTAT