I-T - Assessment order passed under erroneous assumption that relevant CBDT Instruction did not apply to assessee, merits being set aside for reconsideration of the matter : HC

I-T - Charging of any amount towards consideration for advancing general public utility, which is on cost-basis, cannot be considered to be in nature of trade, commerce, or business: HC

I-T - Re-assessment - SCN passed u/s 148A in name of deceased person is invalid; such defect cannot be cured u/s 292BB: HC

I-T - Jurisdictional notice issued in name of amalgamating company is illegal, since such entity ceases to exist and cannot be regarded as person u/s 2(31) against whom assessment can be initiated: HC

I-T - If there is no irretrievable benefit that had accrued to assessee, professional income cannot be brought to tax in hands of assessee u/s 28(iv): ITAT

I-T - No addition on account of undisclosed income can be made only on basis of statement recorded u/s 132(4), and without any corroborating evidence: ITAT

I-T - Annual letting value needs to be determined in terms of applicable rent control legislation: ITAT

I-T - If evidences filed by assessee proves identity & creditworthiness of loan transactions, fact that summon issued were returned un-served is of little significance to prove genuineness of transactions: ITAT

Cus - CESTAT order dated June 2022 to be complied by Adjudicating Authority by passing detailed speaking order within a period of two months, without fail: HC

GST - Neither the SCN nor the order of demand clearly sets out the reason for imposing the tax liability as well as penalty - Matter remanded: HC

GST - Blatant case of breach of principles of natural justice and total non-application of mind - Personal hearing is mandatory before passing any adverse order: HC

GST - No confiscation without seizure - Once the goods are to be treated as seized u/s 67(2), the same would be liable to be provisionally released: HC

GST - Notice is issued without application of mind as well as in breach of principles of natural justice qua suspension of registration: HC

2023-TIOL-115-HC-DEL-GST

Ram Prakash Chauhan Vs Commissioner of Delhi GST

GST - Petitioner is impugning an order dated 23.10.2020, whereby the petitioner's goods were detained u/s 129(1) of the Act, 2017 as well as an order dated 23.10.2020 raising a demand of tax and penalty of a sum of Rs. 2,78,129/- - Appeal filed was also dismissed by the appellate authority, therefore, petitioner impugns the same too - - Counsel for the respondent states that the order dated 23.10.2020, raising a demand of tax and penalty is a consent order and, therefore, the concerned GST Officer was not required to give detailed reasons. Held: Notice [as well as order] dated 23.10.2020 merely indicates that the documents tendered are found to be defective; it does not mention any specific defect found by the GST Authorities concerned - Bench is unable to accept that the order of demand and penalty is a consent order and the petitioner was precluded from challenging the same - The goods had been detained and it is not disputed that the same would not have been released unless the tax and penalty was paid - Bench is persuaded to accept that the petitioner had paid the tax and penalty for release of the goods and the said payment was not voluntary - It is apparent that neither the show cause notice nor the order of demand clearly sets out the reason for imposing the tax liability as well as penalty - Orders impugned are set aside and matter is restored to the file of the GST Officer concerned - Petition disposed of: High Court [para 14, 20, 21, 23]

- Petition disposed of: DELHI HIGH COURT

2023-TIOL-114-HC-MP-GST

Ultratech Cement Ltd Vs UoI

GST - Petitioner has impugned the assessment order dated 23.09.2022 passed by the respondent No.3 for the period April 2021 to January 2022, allegedly, without granting any personal hearing. Held: From perusal of the impugned order dated 23/09/2022, it can be seen that it is one of those blatant cases of breach of principles of natural justice and total non-application of mind - Only reason assigned in the impugned order is that the reply filed by the petitioner is not acceptable, therefore, the reply is rejected - As per Section 75(4) of the Act, personal hearing is mandatory before passing any adverse order against the assessee - No reason for the Bench to wait for the respondents to file the reply and prolong the agony of the petitioner and also waste precious judicial time - If the Assessing Officer had only considered the file properly and dealt with the reply filed by the petitioner, then the need for the petitioner to approach this Court would not have arisen - Order dated 23/09/2022 is quashed and is set aside - Petition stands disposed of: High Court

- Petition disposed of: MADHYA PRADESH HIGH COURT

2023-TIOL-113-HC-AHM-GST

Dhanlaxmi Metals Vs State of Gujarat

GST - Petitioner inter alia pray for quashing and setting aside the order dated 11.10.2021 of the respondent authorities denying the provisional release of the goods and conveyance under section 67(6)/129(2) of the GST Act even if goods and vehicles are seized in transit - Counsel for respondent Revenue submitted that the authority is yet to adjudicate upon the show cause notice in Form MOV-10 issued u/s 130 of the GST Act and, therefore, the question of provisional release would not arise on plain reading of section 68 read with section 129 of the GST Act. Held: The provision for confiscation of goods as per section 130 of the GST Act has to be preceded by seizure of goods because there cannot be confiscation without seizure - In such circumstances, when the goods are in transit and are to be confiscated they are required to be seized for the purpose of invocation of section 130 of the GST Act - Therefore, in such circumstances, provisions of section 67(2) of the GST Act comes into play and seizure of goods under section 129 then becomes seizure under section 67 of the GST Act so as to confiscate the same under section 130 of the GST Act - Decision in case of Weston Components Ltd. ( 2002-TIOL-176-SC-CUS ) is applicable in facts of the case in which it is held by the Apex Court that once the goods are seized and then released, confiscation is also permissible but if the goods are not seized then there cannot be any confiscation - Held, therefore, that once the notice in Form MOV-10 under section 130 for confiscation of goods is issued, the goods in question stand seized under section 67(2) of the GST Act and applicability of section 129 of the GST Act comes to an end - Respondent authorities are required to exercise powers to release goods and conveyance as provided in sub-section(6) of section 67 - It is immaterial whether for the purpose of confiscation, goods are seized at the premises or in transit - Section 130 of the GST Act is the only statutory provision providing for confiscation of goods irrespective of the fact that the goods are lying in the premises of the taxable person or whether the goods are in transit - Therefore, in order to proceed further under section 130 of the GST Act, the goods have to be under seizure of the authority - Under such circumstances, provisional release is permissible under section 67(6) of the GST Act - Once the goods are to be treated as seized under section 67(2) of the GST Act, the same would be liable to be provisionally released under section 67(6) of the GST Act by the GST authority - The intention of the legislature cannot be to keep the goods and conveyance unused till the adjudication and further appeal is decided by the competent authority under the provisions of the GST Act - The respondents authorities are accordingly directed to provisionally release the goods and conveyance in question in all these petitions on execution of bond of value of goods and on payment of tax, interest and penalty and fine in lieu of confiscation of the conveyance by the petitioners within a period of three weeks - Petitions disposed of: High Court [para 30, 31, 32, 33, 34, 36, 38]

- Petitions disposed of: GUJARAT HIGH COURT

2023-TIOL-112-HC-AHM-GST

World Steel Tech India Pvt Ltd Vs State of Gujarat

GST - Petition has been filed seeking directions for quashing and setting aside of ( i ) show cause notice dated 23.2.2022, (ii) an order dated 8.3.2022 cancelling the registration of the petitioner and (iii) an appeal order dated 7.9.2022, rejecting the appeal of the petitioner on the ground of limitation. Held: It is noticed that it is not in dispute that the petitioner could not file its returns under GST Act, for the period from August, 2021 to January, 2022 because of the financial crisis faced in the business, on account of Covid-19 Pandemic - Though the notice states that the case will be decided ex- parte in case no reply is filed within the stipulated date or failure to appear for personal hearing on the appointed date, evidently, there is no appointed date mentioned for securing personal hearing for the petitioner company - This notice is issued without application of mind as well as in breach of principles of natural justice qua suspension of registration - Insofar as the order is concerned, authority has self-contradicted themselves by initially giving reference to reply dated 6.3.2022 and immediately in the next line stating that no reply to the show cause notice has been submitted; order dated 8.3.2022 is also issued without due application of mind - It would serve the ends of justice in the event the petitioner is provided a fresh opportunity to respond to the show cause notice - Resultantly, the writ petition deserves to be allowed and is accordingly partly allowed - The orders dated 8.3.2022 and 7.9.2022 are hereby quashed and set aside - Registration is restored forthwith - Matter is restored to the file of respondent No.2: High Court [para 8, 8.1, 8.2, 9]

- Petition disposed of: GUJARAT HIGH COURT

2023-TIOL-117-HC-AHM-CUS

Teneron Ltd Vs UoI

Cus - Petitioner seeks issuance of a writ of mandamus directing the respondent nos. 2 & 3 to immediately comply with the CESTAT order dated 06.06.2022; that the respondents be directed to pay cost of this litigation. Held: Assessing Officer/ Adjudicating Authority to decide all these aspects (issues raised by petitioner) and pass a detailed speaking order within a period of two months, without fail: High Court [para 5]

- Petition disposed of: GUJARAT HIGH COURT

2023-TIOL-77-CESTAT-AHM

Shree Jain Vish Oshwal Club Vs CST

ST - Appellant, a registered trust is carrying out various social and charitable services and has been giving its property for temporary rent to generate income to boost its charitable activities - They given the property on temporary basis to M/s Gandhi Associates for providing other related service to such parties taking hall on hire basis - As per understanding, total receipt was divided on sharing basis between appellant and contractor - Case of department is that the share received by appellant from contractor is liable to Service Tax under Business Auxiliary Service - The Service Tax was demanded on sharing of receipt from total receipt of contractor - Contractor provided the service of Mandap keeper to his client in premises of appellant - Therefore, out of Mandap keeper service as per their understanding sharing of appellant was given - As regard the issue that whether Service Tax is payable on mere sharing of consideration towards service will not prima facie amount to provision of any service on the part of appellant - Therefore, appellant had a bona fide belief in non payment of Service Tax - Appellant also submitted that this case is falling under principle of revenue neutrality in as much as tax payment if any made by appellant is available as Cenvat credit to contractor who has used the premises of appellant - Suppression of fact and mala fide cannot be attributed against appellant - Accordingly, demand is hit by limitation as extended period could not have been invoked - Therefore, demand on the ground of limitation is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2023-TIOL-76-CESTAT-AHM

Max Ceramics Pvt Ltd Vs CCE & ST

CX - Case of department is that M/s. Max Ceramics Pvt Ltd have cleared Ceramic Glazed, Digital Wall Tiles and Floor tiles illicitly without payment of Central Excise Duty - As per investigation and an adjudication, demand of duty on alleged clandestine removal made by M/s. Max Ceramics Pvt Ltd was confirmed and penalties under Rule 26 was imposed on other appellants - From the record shown by appellant and comparison of product manufactured by Oasis Vitrified Pvt Ltd and appellant, it is prima facie appeared that demand was raised in respect of alleged clandestine removal of those goods which are not manufactured by appellant whereas, same is manufactured by Oasis Vitrified Pvt Ltd. - If this is found to be correct then demand against appellant will not sustain - However, adjudicating authority has not considered this vital aspects in proper manner - As regard the submission of appellant that since they have paid Rs. 5 Lakhs against probable duty, interest and penalty - Matter can be concluded on that basis and remaining amount shall be refundable in accordance with law - Adjudicating Authority needs to reconsider the case and pass an order afresh - Accordingly, impugned order is set aside: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2023-TIOL-75-CESTAT-MAD

Ars Steels And Alloy International Pvt Ltd Vs CC

Cus - The only issue that arises is, whether the PSI certificate submitted by appellant-importer was sufficient compliance with Appendix-28 ibid. and that the authorities are justified in ordering confiscation and offering redemption fine in lieu of the same - Authorities have found that violation, if any, has not resulted in any specified categories of items being imported or that there was any reason to hold that there has been an improper importation of goods in question, resulting in confiscation of same - To put it in simple terms, goods have not been imported contrary to any prohibition imposed by or under the Act or contrary to any prohibition imposed by any other law for time being in force - This is because the import is subject to fulfilment of stipulated condition, failing which the only consequence prescribed is 100% inspection of entire consignment - This, ipso facto, therefore, would not tantamount to improper import of goods within the meaning of Section 111(d) of the Act - Consequently, authorities below are not justified in demanding redemption fine and penalty under Section 112(a) of the Act - Impugned order cannot sustain and therefore, same is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT