I-T- Considering past consistent practice to recognize income by way of Service charges on receipt basis, addition made for service charges can be removed: ITAT

I-T - Assessee, a real estate developer, purchases immovable property, TDS is liable to be deducted thereon & failure to do so rightly classifies assessee as in default: ITAT

I-T - No additions can be made u/s 69 on account of unexplained investments simply on basis of loose sheets without any corroboration: ITAT

I-T- Since Commissioner has failed to examine issue analytically in right perspective therefore, order passed u/s 263 is not sustainable in eyes of law : ITAT

I-T- Condonation of delay cannot be claimed as matter of right and only on genuine reasons delay has to be condoned and not otherwise :ITAT

I-T- Without rejecting books of accounts, addition made by AO u/s 69A for unexplained money can not sustain : ITAT

I-T- Reopening of assessment by AO invalid if AO fails to demonstrate that escapement of income was due to failure on part of assessee to furnish all material facts relating to assessment truly and correctly: ITAT

I-T-ITAT upheld the contention of the assessee on the ground that the expenditure incurred by the assesee was done in connectiojn with the business, and the ignorance of this fact cannot be appreciated: ITAT

I-T- Unless difference between gross receipt shown by the assessee in service tax return and in the books of accounts, shows that there is lower income offered by the assessee in its tax return, addition cannot be made : ITAT

I-T - Addition framed u/s 68 is upheld where assessee fails to file necessary details to explain source of alleged cash credit & unable to prove identity, creditworthiness of shareholders & genuineness of transaction: ITAT

Cus - Appellant cannot be permitted to claim benefit of additional licence under the old EXIM Policy, which was not in existence: SC

Cus - Promissory Estoppel - Granting the benefit of an incentive is a policy decision which may be varied and/or even withdrawn and no exporter can claim the incentive as a matter of right: SC

Cus - Merely because some others are granted the benefit wrongly, appellant cannot be permitted to pray for similar benefits - There cannot be any negative discrimination which may perpetuate illegality: SC

Cus - Whether import is of 'dry dates' as claimed or are the goods 'black pepper' and 'areca nuts' - CBIC to consider representation of petitioner for appointment of a single agency for examination to avoid delay as goods are perishable: HC

COFEPOSA - Detention order cannot be quashed on the ground urged on behalf of the detenu that there was inordinate and unexplained delay: HC

GST - Circular came to be issued on 25.09.2021 giving a clarification as to the date for claiming refund u/s 77 - since the impugned order was passed without having the benefit of the Circular, matter remanded: HC

GST - Refund on account of inverted tax structure where input and output supplies are same - Clarificatory Circular dated 06.07.2022 would have effect from the date when Circular dated 31.03.2020 came into effect: HC

GST - Wrong mention of GSTIN number against invoices raised - No loss of revenue or tax impact - GSTN to allow correction, either online or through manual mode: HC

2022-TIOL-1395-HC-AP-GST

Axis Bank Ltd Vs UoI

GST - Petitioner submits that during system configuration at the time of implementation of GST, few business premises located in Telangana State were erroneously tagged to Andhra Pradesh -Thus, the services provided by such office premises in Telangana were alleged to be erroneously mapped as provided in Andhra Pradesh, instead of in Telangana State -  Accordingly, IGST was paid with POS as Telangana from the Andhra Pradesh registration of the petitioner on services rendered from such business premises [which were actually located in Telangana] instead of liability of CGST and SGST [POS Telangana] from TL registration - This incorrect mapping was said to have been identified by the petitioner bank in the year 2019 and in order to correct the tax payment in respective states, the petitioner suo motu deposited appropriate CGST + SGST in Telangana for all the tax periods i.e. from July, 2017 to August, 2019, where IGST was wrongly paid from Andhra Pradesh registration -  It is further averred that the petitioner bank has duly paid CGST and SGST suo motu in Telangana in cash and have reported the same by filing GST Form DRC 03 in Telangana State - As a result of the same, the petitioner bank has paid tax twice i.e. IGST in Andhra Pradesh from its Andhra Pradesh registration and CGST and SGST in Telangana from its TL registration, for the same services - Petitioner bank filed refund applications for the IGST paid [ Rs.16,90,41,709/- ] for the years July, 2017 to August, 2019 on 14.02.2020 in Andhra Pradesh - A Show Cause Notice dated 08.04.2020 was issued calling upon the petitioner, as to why the refund claim should not be rejected on the ground that the refund claim is time barred as per Section 54 -  Point that arises for consideration is w hether the application made by the petitioner is barred by limitation and whether all the documents as required are filed along with the said refund applications.

Held:   It is no doubt true that Section 54 of the  CGST Act, 2017 deals with 'Refund of Tax' - It is also not in dispute that the said application must be made within a period of two years from the relevant date in such form and manner prescribed - But, at the same time, it is to be noted that the Government of India, Ministry of Finance issued a Circular dated 25.09.2021 relating to "Refund of Tax" specified in Section 77(1) of CGST and Section 19(1) of IGST Act - It is also to be noted here that the impugned order was passed on 23.11.2020 and this Circular came to be issued on 25.09.2021 giving a clarification as to the date for claiming refund under s.77 of the Act, 2017 and Section 19 of the  IGST Act, 2017  -  But the entire counter of the respondents was only in relation to Section 54 of the CGST Act, even the authority who passed the impugned order could not have considered the Circular issued by the Ministry of Finance in September, 2021, as the same was not issued by the date of the impugned order -  Since the issue involved relates to period of limitation in filing the refund application, coupled with the documents to be filed, it would be just and proper, in the view of the Bench, to remand the matter back to the authority i.e. third respondent/Assistant Commissioner Central Tax, to deal with the refund application in the light of the Circular No. 162/18/2021-GST dated 25.09.2021 and then pass orders in accordance with law: High Court [para 7, 10, 11]

- Matter remanded: ANDHRA PRADESH HIGH COURT

Micro Systems And Services Sole Vs UoI

GST - Refund of accumulated tax -  Contention of the petitioner was that it had sold goods under concessional/inverted tax rate to DRDO which had issued the requisite certificates - That the Petitioner is eligible for refund of the aforesaid amount of credit paid by it towards procuring raw materials at full rate of tax -  Board had in its Circular  dated 31.03.2020  para 3.2 thereof clarified that refund of accumulated ITC under clause (ii) of sub-section (3) of section 54 of the CGST Act would not be applicable in cases where the input and the output supplies are the same - Based on the said Circular,  by a speaking order dated 04.01.2021, the refund claim  dated 02.12.2020  filed by the petitioner was rejected - However, subsequently, Board has  issued a clarificatory Circular dated 06.07.2022 clarifying paragraph 3.2 of the Circular dated 31.03.2020 and wherein by substituting the earlier paragraph 3.2  it is mentioned  that as the rate of tax of output supply is less than the rate of tax on inputs at the same point of time due to supply of goods by the supplier under such concessional notification, the credit accumulated on account of the same is admissible for refund under the provisions of clause (ii) of the first proviso to sub-section (3) of section 54 of the CGST Act  - Refund claim filed by the petitioner was rejected by the lower authority this order was upheld by the appellate authority, therefore, the present petition.

Held:  The main thrust of the Board's Circular dated 31.03.2020 was that the input and the output supplies should be invariably different and on the above basis, the refund claim of the petitioner was rejected -  Board has clarified vide  Circular No. 173/05/2022-GST dated 06.07.2022  that it was not the intent of paragraph 3.2 of Circular dated 31.03.2020 to cover the cases where the supplier is making supply of goods under a concessional notification and the rate of tax on output supply is less than the rate of tax on input supply (of the same goods) at the same point of time due to supply of goods by the supplier under a concessional notification - Therefore, it has been clarified that in such cases, refund of accumulated input tax credit on account of inverted tax structure would be allowed in cases where accumulation of input tax credit is on account of rate of tax on output supply being less than the rate of tax on inputs (same goods) at the same point of time as per some concessional notification issued by the Government providing for lower rate of tax for some specified supplies subject to fulfilment of other conditions -  Being clarificatory, Circular dated 06.07.2022 inserting the above clarification would have the effect from the date when Circular dated 31.03.2020 came into effect - C laim of the petitioner is liable to be re-considered on the basis of the Circular dated 31.03.2020 as clarified by the Circular dated 06.07.2022 - Impugned orders are set aside and the matter is remanded to the respondent no.6 for re-consideration in terms of the Circular dated 06.07.2022 - Exercise is to be carried out within a period of eight weeks - Petition is accordingly allowed: High Court   [para 10, 13, 14, 15, 16]

- Matter remanded: TELANGANA HIGH COURT

Mahalaxmi Infra Contract Ltd Vs Goods And Services Tax Council

GST -  Writ petitioner approached Court to allow it to carry out amendment in its GSTR-1 for the month of January 2019 in order to rectify its mistake of mentioning wrong GSTIN number against the invoices raised on Respondent No. 5 - The GSTIN number of petitioner's own joint venture, Respondent No. 6 was inadvertently mentioned therein - Petitioner also sought a direction upon the respondent GSTN to allow respondent No. 5 purchaser of the petitioner to avail ITC pertaining to the said transaction.

Held: The instant case does not present any additional tax impact, or loss of revenue for the State Exchequer and, in fact, such correction of relevant returns in case of the petitioner i.e.,GSTR-1, GSTR-2A in case of the respondent No. 5 and 6 would allow the respondent No. 5 to rightly avail the ITC against the tax paid under Tax Invoice number 1/ 2018-19 dated 17th January 2019 issued by the petitioner - Bench is of the considered view that interest of justice would be served if the petitioner is allowed to make the necessary correction in GSTR-1 form for January 2019 - Such correction, if does not entail technical difficulties by the GSTN, may be allowed to be made online by GSTN by opening the portal for a limited period upon due communication to the petitioner and respondent No. 5 and 6 as it would reflect corresponding correction in their GSTR-2A form for the relevant period - If such a course is not possible to be done online for technical reasons, the GSTN could allow the petitioner to make such corrections through manual mode - Such correction be allowed to be made within a period of 8 weeks -  Writ petition is allowed in the manner and to the extent indicated -It is left open for the Respondent No. 5 to claim interest from the petitioner over the ITC which it had to reverse owing to error in filing of GSTR-1 in March 2019: High Court [para 13, 14]

- Writ petition is disposed of: JHARKHAND HIGH COURT

2022-TIOL-95-SC-CUS

Chowgule And Company Ltd Vs Assistant Director General of Foreign Trade

Cus - Feeling aggrieved and dissatisfied with the impugned judgment passed by the Bombay High Court by which the Division Bench of the High Court has dismissed the writ petition by holding that the appellant shall not be entitled to the benefit of additional licence on the export of processed iron ore during the period April, 1990 to March, 1991, the exporter has preferred the present appeal -  It is the case of the appellant that relying upon the original Exim Policy, 1988-91 and acting upon the said policy, the appellant entered into a contract with one NKK Corporation, Japan on 7.2.1990, for export of processed iron ore; actually exported the processed iron ore and realised NFE earnings for the year 1990-91 and later applied for grant of additional licence for the year 1990-91 - However, this request  came to be rejected on the ground that there was no provision for grant of additional licence in the then current policy of 1992-97 - Upon remand, the Assistant Chief Controller of Imports and Exports again rejected the said application by observing that the item "iron ore processed" exported by the appellant during April, 1990 to March 1991 is included in the Appendix 12 of the Exim Policy, 1990-93 and, therefore, the same is not eligible for additional licence during the corresponding licensing period, i.e., 1991-92 -  After remand, the second appellate authority again dismissed the appeal on the ground that the application filed by the appellant for grant of additional licence was barred by limitation -  On remand by the Supreme Court vide order dated 04.07.2007, the High Court, by the impugned judgment and order, has dismissed the writ petition preferred by the appellant by observing that under the amended/new Exim Policy 1992-1993, the exported item - "processed iron ore" was an item specified in Appendix 12 and as per Appendix 12, the exported item "processed iron ore" was ineligible for the purpose of grant of benefit of additional licence - Thus the present appeal.

Held : It is an admitted position that the "processed iron ore" had been exported during April, 1990 to March, 1991 - It is to be noted that under the Exim Policy 1990-93, "Minerals and Iron Ore" are included in the list of ineligible items - I t is required to be noted that under the Exim Policy, the benefit of additional licence which as such was in the form of an incentive is available on actual export in the preceding year and the benefit of such export for the purpose of additional licence to the FOB value shall be available in the next year - Under the Exim Policy, the benefit of additional licence shall be available only on actual export in the previous year and that too to “eligible” items only - Under the circumstances, when the appellant exported the "processed iron ore", i.e., during the period between April, 1990 to March, 1991, the "Minerals and Iron Ore" as per Appendix 12 were in the list of ineligible items, the appellant is rightly denied the benefit of additional licence - It is required to be noted that the appellant had never challenged the new Exim Policy 1990-93, therefore, in the absence of any challenge to the new Exim Policy 1990-93, the new Exim Policy 1990-93 shall be applicable -  When the new Exim Policy 1990-93 is held to be applicable under which on export of 'Minerals and Iron Ore", there shall not be any benefit of additional licence, the appellant cannot be permitted to claim the benefit of additional licence under the old Exim Policy, which was not in existence -  To grant the benefit of an incentive is a policy decision which may be varied and/or even withdrawn - No exporter can claim the incentive as a matter of right - Under the circumstances, the doctrine of promissory estoppel shall not be applicable to such a policy decision with respect to incentive, more particularly when it is well within the right of DGFT/appropriate authority/Union to come out with a new Exim Policy -  Merely because some others are granted the benefit wrongly, the appellant cannot be permitted to pray for the similar benefits - There cannot be any negative discrimination which may perpetuate the illegality - The appellant cannot be allowed the benefit of additional licence on the ground that some others might have been granted such benefits de hors the scheme, which otherwise the appellant is not entitled to under the scheme -  High Court has rightly confirmed the order passed by the authority denying the benefit of additional licence to the appellant - Appeal is accordingly dismissed: Supreme Court [para 5 to 8]

- Appeal dismissed: SUPREME COURT OF INDIA

2022-TIOL-1397-HC-DEL-CUS

Prenda Creations Pvt Ltd Vs CBIC

Cus - Petitioner claims to have imported "dry dates" - Grievance that the petitioner has articulated is that the subject consignments are being examined for alleged mis-declaration by more than one agency, causing delay and detriment to its interests; that the goods are perishable - Petitioner further submits  that the subject consignments are being examined by both respondent nos.5 and 6, therefore, what the petitioner seeks is a direction from the CBEC which would result in the appointment of one agency for examination of the subject goods so that a decision is taken one way or the other, obviating the possibility of delay on account of multiple agencies performing the same job.

Held: Bench  notes that it is the stand of the official respondents that although the subject goods have been described by the petitioner as "dry dates", they are, in fact, "black pepper" and "areca nuts" - Without making any observations with regard to the merits of  the matter,  writ petition is disposed of with a direction to the CBIC to consider the aforementioned representation as expeditiously as possible, though, not later than 10 days by passing a speaking order - That , in case an application is moved for de-stuffing the containers, the same shall be decided as expeditiously as possible, since the petitioner claims that the delay is rendering the subject consignments economically unviable: High Court [para 5, 9, 9.1]

- Petition disposed of: DELHI HIGH COURT

Pramod Singla Vs UoI

COFEPOSA - Petitioner prays for quashing and setting aside the detention order dated 01.02.2022 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Held:  Conclusion made in Para 30 of Ankit Ashok Jalan ( 2020-TIOL-70-SC-COFEPOSA-LB ) is not in the nature of 'obiter dictum' - In the present case, the representation made to the detaining authority, i.e., respondent no. 2 on 02.03.2022, who was the specially empowered officer passing the order of detention, was decided on 15.03.2022, without waiting for the opinion of the Advisory Board or confirmation of the detention order by the Central Government - The second representation dated 10.03.2022 made by the detenu to the Central Government, i.e, respondent no. 3 was received by the latter after the reference being made to the Central Advisory Board and decided on 09.05.2022, i.e., after receipt of the said opinion and confirmation of the detention order by the Central Government -  Applying the law laid down by the Supreme Court in the case of Ankit Ashok Jalan ( 2020-TIOL-70-SC-COFEPOSA-LB ) to the facts of the present case, Bench is of the considered opinion that the detention order cannot be quashed on the ground urged on behalf of the detenu that there was inordinate and unexplained delay on the part of the Central Government, i.e., respondent no. 3 in deciding the representation dated 10.03.2022 - Writ petition is dismissed: High Court [para 18, 19]

- Petition dismissed: DELHI HIGH COURT