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2022-TIOL-NEWS-256| November 02, 2022
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
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TIOL AWARDS |
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TODAY'S CASE (DIRECT TAX) |
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INCOME TAX |
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2022-TIOL-1256-ITAT-DEL
ITO Vs TATA Teleservices Ltd
Whether discounts provided to channel partners could be considered as commission and can consequential interest be levied on same- NO : ITAT
- Revenue's appeals dismissed: DELHI ITAT
2022-TIOL-1255-ITAT-DEL
AVP Buildtech Pvt Ltd Vs ITO
Whether the AO erred in carrying out different assessment on different years on similar and identical facts and circumstances - YES: ITAT
- Appeal allowed: DELHI ITAT
2022-TIOL-1254-ITAT-MUM
Raw Pressery Pvt Ltd Vs ACIT
Whether issue of addition u/s 68 can be remanded back as AO mechanically added share premium which is unjustified - YES : ITAT
- Matter remanded: MUMBAI ITAT
2022-TIOL-1253-ITAT-AHM
Gujarat Power Corporation Ltd Vs ACIT
Whether when quantum order itself is under appeal and alleged concealment is not final and is debatable penalty imposed u/s 271(1)(c) can not survive - YES : ITAT
- Assessee's appeal allowed: AHMEDABAD ITAT
2022-TIOL-1252-ITAT-BANG
Royal Orchid Hotels Ltd Vs ACIT
Whether following order passed in assessee's own case credit card commission can be allowed as there is no need to deduct TDS u/s 194H of act - YES : ITAT
- Assessee's appeal partly allowed: BANGALORE ITAT
2022-TIOL-1251-ITAT-BANG
SKF Engineering And Lubrication India Pvt Ltd Vs JCIT
Whether provision made for liquidated damages can be allowed as deduction - YES : ITAT
- Assessee's appeal allowed: BANGALORE ITAT
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TODAY'S CASE (INDIRECT TAX) |
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GST CASE |
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2022-TIOL-1376-HC-MEGHALAYA-GST Green Valliey Industries Ltd Vs UoI
GST - The matter pertains to the transitional period of switching over from the previous sales tax regime to the GST regime - There is no doubt that since the larger part of the claim in excess of Rs.6 crore has been upheld in favour of the assessee, the imposition of penalty for the corresponding amount will no longer apply - But the issue now arises as to whether the 100 per cent penalty imposed for the remainder of the claim, to the extent of Rs.30,73,908/-, should also be interfered with - The assessee submits that apart from the fact than an amount in excess of Rs.30 lakh would be a loss to the assessee, there was no attempt by the assessee to mislead the Department or suppress any material facts in making the claim for the amount of Rs.30,73,908/- in the TRAN1 filed by the assessee - The assessee suggests that since it was a huge sum which had been lost to the assessee, the assessee merely invoked the discretion of the Department in allowing the claim at a later stage since the assessee had not availed of it, whether by mistake or oversight, at the time of claiming refund for the month of June, 2017. Held: Though the Department vehemently objects to the conduct of the assessee to not be regarded as fraudulent, in this case, it appears that the assessee has been seriously hurt in losing a sum of Rs.30,73,908/- that it was otherwise legitimately entitled to receive - Once it is evident that the claim for refund had not being made at the appropriate time, it could not be carried forward - However, nothing in the subsequent act of the assessee in incorporating the amount in TRAN-1 would amount to the element of mens rea on its part that is the underlying essence of Section 74 of the Act of 2017 - Since the claim of the assessee to the extent of Rs.6,55,99,154/- has been upheld, no question arises of any penalty or interest or other charge being imposed in respect of such amount - The penalty on the balance amount would not be covered under Section 74 of the Act since there was no attempt to defraud the revenue or mislead it or any suppression of material facts - Since there is no failure to pay any amount, in the strict sense, in this case as the show-cause notice only pertained to a claim that had been made to which the assessee was not entitled, this would not be an appropriate case for imposing any penalty - WP (C) No.287 of 2022 is allowed by setting aside the appellate order dated July 14, 2021 to the extent that it disallowed the petitioning assessee's claim of Rs.6,55,99,154/- and by upholding the appellate order to the extent that it rejected the balance claim of Rs.30,73,908/- - Further, the penalty imposed by the appellate order is set aside in its entirety: High Court [para 17, 18, 21]
- Petitions disposed of: MEGHALAYA HIGH COURT
2022-TIOL-1375-HC-ALL-GST
State of Uttar Pradesh Vs Maa Vindhyavasini Tobacco Pvt Ltd
GST - Petition is filed by Revenue challenging the order dated 22.06.2019 passed by the appellate authority whereby the demand of tax and penalty imposed vide order dated 17.05.2019 under Section 129(3) of the CGST Act was set aside - A ppellate authority held that there was no material available with the authorities concerned for detention and seizure of the goods; for passing the orders under Section 129(3) of the CGST Act; that it is well settled that the levy of tax and penalty cannot be based upon the presumption - Counsel for Revenue submits that an intelligence was received that the goods were being transported twice over on the same set of invoices. Held: Said argument of the Revenue counsel is not worthy of acceptance since the goods that are to be transported have to be accompanied by E-way bills and the allegation levelled neither emerges in the assessment order nor is there any basis to arrive at the said conclusion - In the present case, as the respondent has not approached for availing the benefits that flow from Section 129, coupled with the fact that the appellate authority found that the basis for initiating proceedings were non-existent, Bench sees no reason to interfere with the order passed by the appellate authority - Writ petition is dismissed: High Court
- Petition dismissed: ALLAHABAD HIGH COURT
2022-TIOL-1374-HC-ALL-GST
D M Traders Vs UoI
GST - Petition is directed against the show cause notice dated 18.08.2022, whereby, the petitioner has been called upon to explain as to why proceeding for cancellation of registration be not initiated against him - SCN also records that registration of the petitioner has been suspended w.e.f.18.08.2022 - Petitioner submits that no reason has been provided in the SCN as to why the proceeding for cancellation is sought to be initiated and also lacks in all material details which can enable the petitioner to reply to the same - Counsel for Respondent Revenue submits that the SCN is a fall out of the proceedings initiated against the petitioner u/s 129(1)(b) of the Act, 2017 whereby penalty has been imposed; that the reason stated in the SCN is ‘issuance of invoice or bill without supply of goods and/or services in violation of the provisions of Act/Rules leading to wrongful availment or utilisation of input tax credit'; that against the order passed u/s 129, petitioner has instituted an appeal u/s 107. Held: Bench finds that the show cause notice suspending the GST registration of the petitioner w.e.f. 18.08.2022 is due to the proceedings initiated against the petitioner under the GST Act for violation of the provisions in issuing invoice or bill without supply of goods & wrongful availment of the benefits under the Act - Bench is of the considered view that the petitioner should furnish a proper reply to the show cause notice dated 18.08.2022 making out a case as to why action cannot be taken against him - Since the petitioner has approached the Court without furnishing any reply to the show cause notice, Bench does not find it a fit case for interference - Petitioner to submit reply within two weeks - Petition is disposed of: High Court
- Petition disposed of: ALLAHABAD HIGH COURT |
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INDIRECT TAX |
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2022-TIOL-979-CESTAT-AHM
Gujarat Pickers Industries Ltd Vs CC
Cus - The appellant imported the consignment of PVC Flex Sheet LF-238 by way of filing Bills of Entry and cleared the imported goods for Home Consumption from ICD, Customs, Sabarmati, Ahmedabad - The appellant was served upon a Show Cause Notice dated 06-10-2006 raising a demand of Custom Duty amounting to Rs. 4,02,602/- under section 28(1) of the Customs Act, 1962 along with interest under section 28AB(1) ibid and further proposed penalty under section 114(A) ibid - It was the case of the Department in the notice that the appellant imported the PVC Flex Sheet LF 238 – 340 GSM from the foreign supplier named Zhejiana Tianchang Plastic Fabric Co. of China and that the said supplier has sold the said import items to another Importer namely Tower overseas of Ahmedabad at the Higher CIF rate of USD 0.43per SQM which is much higher than the price declared in the Bill of entry of Appellant and therefore appellant was called upon as to why a uniform price of USD 0.43 per SQM on appellant's imported goods should not be adopted - The Adjudicating authority vide Order-in-Original (OIO) No. 03/ADDL. COMMR/ICD/Sabarmati /IMP/2007 dated 31-01-2007 after considering the reply of the appellant confirmed the demand made in the show cause notice - The appellant preferred appeal against the OIO and Commissioner of Customs (Appeals), Ahmedabad vide Order-in-Appeal (OIA) No. 79/2008/Cus/Commr(A)/AHD dated 07-11-2008 upheld the OIO; upon further appeal by the appellant, this Tribunal vide Order No. A/1175/2018 dated 07-02-2018 set aside the OIA and remanded the matter to the adjudicating authority with a direction that the matter is to be decided after supplying to the appellant a copy of import documents of the imports by the said Tower Overseas. Held - As regards application of the contemporaneous price, it is seen that imports by Tower Overseas are of February 2006 and that of appellant are of April to July 2006 - For applying the price of contemporaneous goods, it is also one of the condition that the import should be at same time. Moreover there is force in the submission of the appellant that market of PVC Flex Sheet during that period was volatile, in that view imports not being of the same time; the import value of that Tower Overseas are not comparable at all. The fact was also placed on record by the appellant that during the same period of imports by the appellant, there have been imports of the similar item @ 0.27USD/SQM at the port of Mumbai by Yash Enterprise which is lesser than the price at which appellant imported the said items during the month of June 2006. It is also settled law that while applying the price of contemporaneous goods, when more than one price are available then the lowest of the prices should be taken for the assessment - Therefore for this reason the price could not have been enhanced in respect of the goods in question - The order in question is unsustainable: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-978-CESTAT-DEL
AGC Realty Pvt Ltd Vs Pr.CCGST
ST - The assessee is a builder engaged in construction of residential complex - Pursuant to investigation, the assessee deposited a sum of Rs. 25 lakhs under protest - Thereafter, SCN was issued and further demand of Rs. 25 lakhs was raised and confirmed vide O-i-O - On appeal, the Commr. (A) held in favor of assessee - Subsequently, assessee filed claim for refund of the Rs. 25 lakhs pre-deposited - While the principal amount was refunded, the interest thereon was allowed only on the amount of Rs. 8.44 lakhs paid as pre-deposit - The interest on the balance amount was rejected, whereas as per the law, interest is allowed for the period from date of filing appeal till date of granting refund. Held - Following the ruling of the Division Bench in the case of Parle Agro Ltd , I hold that the appellant is entitled to interest from the date of deposit till the date of refund @ 12% P.A. Adjudicating Authority is directed to grant the balance interest within a period of 30 days from the date of receipt of this order - Accordingly, this appeal is allowed and the impugned order stands modified in these terms- As the issue is related to Service Tax, Registry is directed to correct the appeal as Service Tax Appeal instead of Excise Appeal: CESTAT
- Appeal allowed: DELHI CESTAT
2022-TIOL-977-CESTAT-DEL
Comparex India Pvt Ltd Vs CCT
ST - The present appeal seeks the quashing of the order dated 24.02.2022 passed by the Commissioner (Appeals-II), Central Tax/Excise, Delhi The Commissioner (Appeals) by which interest has been granted to the appellant on the sanctioned amount at the rate specified in section 11BB of the Central Excise Act, 1944 The Excise Act after the expiry of three months from 29.01.2020 till the date of refund i.e. 28.09.2021, though the appellant had claimed that interest should have been granted after the expiry of three months from the date of filing of the refund applications - According to the Commissioner (Appeals), 29.01.2020 would be the relevant date as the appellant had filed an application for grant of refund on the basis of the order dated 09.01.2020 passed by the Tribunal dismissing the appeal filed by the Department against the order dated 18.03.2019 passed by the Commissioner (Appeals) granting refund to the appellant - The refund claims were rejected by the Assistant Commissioner by order dated 27.07.2018 on the ground that the services provided by the appellant were 'intermediary services' and, therefore, did not qualify as 'export of service' under Rule 6A of the Service Tax Rules, 1994 - The appellant filed an appeal which was allowed by the Commissioner (Appeals) by order dated 25.09.2018 holding that the appellant would be entitled for refund of Rs. 19,60,52,917/- - This order was assailed by the Department before the Tribunal and the Tribunal by order dated 08.02.2019 set aside the order passed by the Commissioner (Appeals) and remanded the matter for passing a reasoned order after hearing the parties. Held - The issue at hand stands settled vide the decision of the Apex Court in Ranbaxy Laboratories Ltd. v/s Union of India and Others and of the Allahabad High Court in Dabur India Ltd. v/s Union of India and of the Bombay High Court in Commissioner of Central Excise., Pune-III v/s Ballarpur Industries Ltd. - The decisions emphasise that though the order granting refund may have been passed on a subsequent date but interest has to be paid after the expiry of three months from the date of filing of applications for refund - The Commissioner (Appeals) committed an illegality in construing 29.01.2020 as the date of filing of the refund application whereas the dates of filing of the refund applications were 30.03.2017, 20.06.2017, 31.07.2017 and 28.08.2017. On 29.01.2020 the appellant had merely submitted an application for implementation of the order passed for refund of the amount claimed in the four applications - The order passed by the Commissioner (Appeals) is, therefore, modified to the extent that interest shall be payable to the appellant after the expiry of three months from the actual date of filing the refund applications i.e. 30.03.2017, 20.06.2017, 31.07.2017 and 28.08.2017 till the date the refund was made i.e. 28.09.2021 - The appeal is, accordingly, allowed to the extent indicated above: CESTAT
- Appeal partly allowed: DELHI CESTAT
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