I-T - Less than 2 days' time given to file reply to SCN is cursory and an illusion & in violation of Rules of Natural Justice; re-consideration warranted: HC

I-T - Issue of deduction u/s 80P(2)(b) to any cooperative society need not be decided, without examining if such society is 'Apex society or Central society': HC

I-T - Allahabad HC punishes I-T Officer with imprisionment and fine for contempt of its earlier order and deliberate disobedience of its judgment: HC

I-T - To invoke re-assessment proceedings, there must be escapment of income in hands of assessee in relevant AY & AO must be satisfied w.r.t. such escapement: HC

I-T - Charging capital gain tax on very same land based on final execution of sale deed amounts to taxing the same twice over, is impermissible : HC

I-T - AO miserably failed to carry out enquiry into transactions of STCL from sale of equity shares of penny stock companies : ITAT

I-T - Assessee as employer is duty bound to deposit employees' contribution to provident fund within due date as mentioned in respective Statutes to avoid disallowance : ITAT

I-T - Assessee as employer is duty bound to deposit employees' contribution to provident fund within due date as mentioned in respective Statutes to avoid disallowance : ITAT

GST - Amount of Rs.1.80 crores deposited in four tranches at 01:28 AM, 02:15 AM, 05:04 AM, 07:03 AM did not have an element of voluntariness attached to it - to be returned along with interest @6% within 10 days: HC

GST - If a procedure is prescribed under a statute or by law, it has to be followed to the tee: HC

GST - Although payments were made in GST DRC-03, no document viz. GST DRC-04 placed on record by Revenue demonstrating acknowledgement of having accepted payment: HC

GST - CBIC should align Instruction No. 01/2022-2023 with the directions issued by the Gujarat High Court in Bhumi Associate: HC

ST - Since Commissioner (A) has not discussed the merits of case and simply rejected the appeal on ground of noncompliance with requirement of pre-deposit, matter remanded for deciding appeal afresh: CESTAT

CX - Cenvat Credit Scheme is a special scheme where an assessee can avail credit of duty paid on inputs /capital goods/ input services as CENVAT credit under certain conditions, issue requires re-adjudication: CESTAT

2022-TIOL-1591-HC-DEL-GST

Vallabh Textiles Vs Senior Intelligence Officer

GST - Question which arises for consideration is: whether the cumulative sum of Rs.1,80,10,000/- deposited on behalf of the petitioner-concern, during search proceedings carried out between 16.02.2022 and 17.02.2022, was a voluntary act or not - Petitioner claims that the aforementioned amount was deposited in four (4) tranches, between 01:28 A.M. and 07:03 A.M. on 17.02.2022; that the search commenced at about 03:30 PM on 16.02.2022 and ended at 09:30 AM on 17.02.2022 - Case of Revenue is that the Ready-Made Garments (RMGs) sold, in cash, allegedly on behalf of the entities viz. Empire Apparels Pvt. Ltd. ("EAPL") and M/s Navrang Enterprises ("NE")by the petitioner-concern were worth Rs.149.90 crores against which it received by way of a commission [at the rate of 5%] Rs.7.50 crores; that the commission was also received in cash and requisite tax on the commission earned had not been paid by the petitioner.

Held: Facts which have emerged, disclose that although payments were made in the prescribed form i.e., GST DRC-03, no document [GST DRC-04, as prescribed under sub-section (2) of Rule 142 of the 2017 Rules] has been placed on record by the official respondents/revenue, demonstrating acknowledgement of having accepted the payment - Therefore, the stand taken by the official respondents/revenue that this was a voluntary payment, based on self-ascertainment of tax, interest and penalty, is not established, as the regime incorporated under the provisions of Section 73/74 of the 2017 Act and the 2017 Rules, adverted to hereinabove, has not been adhered to - Besides this, circumstances reveal, that the amounts deposited [the cumulative sum being Rs.1,80,10,000/- deposited in four tranches at 01:28 AM, 02:15 AM, 05:04 AM, 07:03 AM] did not have an element of voluntariness attached to it - It is also not in dispute, that the search proceedings commenced on 16.02.2022 at about 03:30 PM and were concluded on the following day i.e., 17.02.2022 at 09:30 A.M - The fact, that deposits were made [during the early hours of 17.02.2022] when the search had not concluded, would show that the payments were not voluntary - The deposits made were not aligned with provisions of sub-section (5) of Section 73 or sub-section (5) of Section 74 - If the payments/deposits were voluntary, then an acknowledgement of having received the payment should emanate from the proper officer, as mandated in the prescribed form i.e., GST DRC-04, as prescribed under sub-section (2) of Rule 142 of the 2017 Rules -Respondents/revenue have not been able to discharge this burden - Furthermore, the Instruction [Instruction No. 01/2022-2023 dated 25.05.2022] falls short, inasmuch as it sidesteps direction number two (2) contained in Bhumi Associate, which states that even if the assessee comes forward to make voluntary payment in the prescribed form i.e., GST DRC-03, he/she should be advised to file the same the day after the search has ended and the officers concerned have left the premises of the assessee - The violation of the safeguards put in place by the Act, Rules and by the Court, to ensure that unnecessary harassment is not caused to the assessee, required adherence by the official respondents/revenue, as otherwise, the collection of such amounts towards tax, interest and penalty would give it a colour of coercion, which is not backed by the authority of law - If a procedure is prescribed under a statute or by law, that is, via dicta contained in a judgment [Bhumi Associate - 2021-TIOL-421-HC-AHM-GST ], it has to be followed to the tee - Failure to follow the prescribed procedure will lead the Bench to conclude that the deposit of tax, interest and penalty was not voluntary - The reason that the officers of the official respondents/revenue have been asked, perhaps, to have the amounts deposited the day after the search is concluded, is, to also give space to the concerned person to seek legal advice, and only thereafter deposit tax, interest and penalty, wherever applicable, upon a proper self-ascertainment - Undoubtedly, in this case, no such elbowroom was made available - Bench is persuaded to hold that the aforementioned amounts which were deposited on behalf of the petitioner-concern, lacked an element of voluntariness - Given this position, Bench is inclined to direct the official respondents/revenue to return Rs.1,80,10,000/- to the petitioner-concern, along with interest at the rate of 6% (simple) per annum within ten days - Since Bench is in respectful agreement with the directions contained in Bhumi Associate [ 2021-TIOL-421-HC-AHM-GST ], Bench directs the CBIC to align Instruction No. 01/2022-2023 dated 25.05.2022 with the directions issued by the Gujarat High Court in Bhumi Associate - Petition disposed of: High Court [para 32, 32.1, 33, 33.1, 34, 35, 36, 36.1, 39, 39.2, 40, 40.1, 41, 41.1, 42, 43, 46]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-1174-CESTAT-DEL

Music Palace Vs CC

Cus - Appellant deals in both type of products, the goods which are manufactured in India and goods of foreign origin - It is a case of town seizure - Appellant have led sufficient evidence that he has purchased goods from open market in India and is not the importer - They have led evidence by producing some documents available with them and also gave name of parties, who were either traders or importers or manufacturers in India, who had supplied the goods - All such suppliers/importers have corroborated the statement of appellant as to have supplied the goods - The documents available with appellant in support of goods lying with them in shops/godown were resumed by Revenue officers of DRI about a month before search - Court below have erred in not referring to resumed records lying with them - The goods being not notified goods under Section 123 of the Act, it was onus on Revenue to establish smuggled nature of goods, which the Revenue have miserably failed - Not a single evidence was produced by Revenue in support of allegation of smuggling save and except bald allegation - Appellant is entitled to consequential benefits including refund of amount seized /confiscated: CESTAT

- Assessee's appeal allowed/Revenue's appeal dismissed: DELHI CESTAT

2022-TIOL-1173-CESTAT-MUM

Pan India Paryatan Pvt Ltd Vs CGST & CE

ST - The Commissioner (A) has dismissed the appeal on the ground that requirement of pre-deposit has not been complied with before filing of appeal - In impugned order, they had acknowledged the fact that pre-deposit of 7.5% was made by appellant under CGST Act in form DRC-03 - However, such payment was not considered by first appellate authority - Appellant submitted that subsequent to rejection of appeal by Commissioner (A), they had already complied with requirement of pre-deposit - Revenue has also considered the fact that the amount has already been deposited by appellant - Therefore, appeal filed by appellant deserves to be heard on merits - However, Commissioner (A) has not discussed the merits of case and simply rejected the appeal on the ground of noncompliance with requirement of pre-deposit - Since merits of the case have to be decided by Commissioner (A), matter is remanded to him for deciding the appeal afresh on the basis of available records: CESTAT

- Matter remanded: MUMBAI CESTAT

2022-TIOL-1172-CESTAT-AHM

Nayara Energy Ltd Vs CCE & ST

CX - The issue involved is regarding eligibility to avail Cenvat credit of amount of CVD paid as debit in Served From India Scheme (SFIS) - Appellant has paid CVD by a debit in SFIS - They had imported capital goods under Notification No. 54/2003-Cus. and Notification No. 94/2004-Cus - These imports took place in 2005, 2006 and 2007 - During relevant disputed period, in Foreign Trade Policy, there was neither an express provision to allow Cenvat credit of CVD paid through debit in SFIS scrip nor to disallow the Cenvat Credit of CVD paid through SFIS - Admissibility of Cenvat Credit should be decided as per provisions of Cenvat Credit Rules, 2004, applicable during the relevant period - Cenvat Credit Scheme is a special scheme where an assessee can avail credit of duty paid on inputs /capital goods/ input services as CENVAT credit under certain conditions - Therefore, issue requires re-adjudication - Accordingly, case is remitted to Adjudicating authority with the direction to decide admissibility of cenvat credit on disputed imported Capital Goods afresh in accordance with provisions of Cenvat Credit Rules, 2004 and pass a speaking order: CESTAT

- Matter remanded: AHMEDABAD CESTAT