I-T - Cost related to project of construction / development of building becomes eligible for deduction against revenue recognized from said project in proportion of project completed: ITAT

I-T- PCIT has merely remitted issue back to AO to redo assessment without clearly bringing on record how transactions is non-genuine, which is wrong : ITAT

I-T - Power of revision cannot be exercised in respect of an aspect which is carefully examined by the AO & also been allowed by jurisdictional High Court: ITAT

GST - By invoking writ jurisdiction, it would not be permissible for petitioner to get away from bar of limitation by the back door - However, developments which took place subsequently have come to rescue: HC

GST - Bone of contention - Case of petitioner is that tobacco, supari and lime are different products supplied differently and respective rates are applicable - Dept. says it is Chewing tobacco - Arguable issues: HC

GST - Contract for shifting of 132KV towers and replacing with underground cables - Whether ‘pure service' and exempt or whether Works Contract Service and taxable - Difference of opinion between Members: AAAR

ST - When CENVAT Credit is available on Books of Accounts and the fact cannot be denied that said services were utilized for services exported, then refund cannot be rejected: CESTAT

2023-TIOL-449-HC-AHM-GST

GST- Non-filing of GST returns - The registration came to be cancelled retrospectively with effect from 30.4.2021 - Appellate authority did not entertain the appeal of the petitioner against the cancellation of the registration on the ground that the appeal was filed beyond the time limit provided under section 107(4), therefore, the present petition. Held: Granting relief to the petitioner by entertaining the present petition would amount to circumventing the period of limitation - When the appeal of the petitioner against the cancellation of the GST registration was barred by limitation, by invoking the writ jurisdiction it would not be permissible for the petitioner to get away from the bar of limitation from the back door - However, the developments which took place subsequently have come to the rescue of the petitioner - Notification 03/2023-CT dated 31.3.2023 has opened a window for the defaulting dealers who could now file return and pay the tax - In this view, it will be possible for the petitioner to seek prayer for revocation of the registration by taking advantage of the provisions of the notification - No further adjudication is necessary in the present petition - It is open for the petitioner to take necessary recourse under the aforesaid notification dated 31.3.2023: High Court [para 3, 3.1, 5, 6, 7]

- Petition disposed of: GUJARAT HIGH COURT

GST - Bone of contention - It is the case of the petitioner that the notices mentioned gave different grounds - The case of the department was that the petitioner supplied products in composite way as chewing tobacco and the rate of GST was accordingly liable to be applied - On the other hand, it appears from the case of the petitioner that the items tobacco, supari and lime are different products supplied differently and respective rates on such different goods of GST are applicable - Appeal of the petitioner preferred under Section 107 of the Act, 2017 , which was directed against order dated 11.04.2022 came to be dis-allowed on the ground that it was compulsory for the appellant petitioner to pay10% of the disputed amount of tax as pre-deposit - It is the case of the petitioner that for supply of the composite product, the demand is Rs. 26 crores and Rs.20 crores for the subsequent year - It was submitted that the petitioner has already paid about Rs. 28 crores and, therefore, the question of pre-deposit does not arise - Case of the department is that the product chewing supari, lime and tobacco are composite products and that the petitioner cannot adjust the tax. Held: Petitioner has arguable issues - Notice and notice as to interim relief returnable on 28.04.2023: High Court [para 5]

- Notice issued: GUJARAT HIGH COURT

GST - Special Civil Application No. 17881 of 2022 is disposed of without going into the aspect of validity of the impugned order of provisional attachment, by directing the competent GST authorities to proceed to adjudicate the show cause notice after giving reasonable opportunity to the petitioner including to file reply to defend its case, within a time-bound period - Court has not expressed any opinion on the merits of the case - Arrangement in order dated 4.5.2022 [in which the directions were given regarding maintaining and operating the current account and cash credit account of the petitioner to ensure that the financial interests of the Bank are not jeopardised in any way] shall continue to operate till the competent GST authority completes the adjudication proceedings and passes necessary orders – Special Civil Application No. 2776 of 2022. is disposed of as withdrawn - Petitions disposed of: High Court [para 6.4, 6.5, 7.1]

- Petitions disposed of: GUJARAT HIGH COURT

GST - Registration of the petitioner was proposed to be cancelled on more than one ground that the returns furnished by the petitioner were with incomplete details and that there was failure to furnish returns for a continuous period of six months - Order of cancellation of registration dated 10.09.2022 was passed - Cancellation is ordered on the ground that the taxpayer has not filed GST returns for more than six months and that the tax payer has not responded by filing such returns – Petition filed for setting aside the said order. Held: Clause (c) of the Notification 03/2023-CT would apply to the facts of this case for which there is no dispute - As the Notification 03/2023-CT dated 31.03.2023 would indisputably apply to the facts of this case, the petitioner may approach the competent authority to avail the benefit of the Notification and seek revocation of the cancellation of registration - If the petitioner approaches the competent authority in light of the Notification dated 31.03.2023, the authority will take appropriate decision without brooking any delay – Petition disposed of: High Court [para 5.2, 6, 6.1, 7]

- Petition disposed of: GUJARAT HIGH COURT

GST - Petitioner has sought relief for quashing the confiscation order dated 18.8.2022 passed in the Form GST MOV-11 - It is further submitted that action under Section 129 of CGST Act could be initiated if the goods are in transit - Petitioner is the owner of the truck and had sub-let the said truck for transportation of goods and was intercepted and a detention order was passed - It is further submitted that the goods which were confiscated have been auctioned by the authority and the amount has been recovered by the respondent; that in such circumstances, conveyance may be released and the petitioner is ready and willing to give sufficient amount of bond for the remaining amount of fine in lieu of conveyance - Counsel for Respondent submits that goods which have been auctioned has not fetched the full amount of tax, fine and penalty and has also submitted that the major chunk of tax, fine and penalty is yet to be recovered. Held: It would be in the interest of justice if the conveyance in question i.e. truck is ordered to be released provided the following conditions are complied with viz. Petitioner shall deposit Rs.1,00,000/- with the respondent authority & also furnish a bond of Rs.25,86,456/- towards demand of conveyance with the respondent authority - Once the bond is furnished and the amount of Rs.1,00,000/- is deposited with the respondent authority, the respondent concerned may release the conveyance immediately - Stand over to 19.4.2023: High Court [para 12 to 14]

- Matter listed: GUJARAT HIGH COURT

GST - Applicant had sought a ruling on the following questions viz. Eligibility to exemption from tax on the supply of works contract services by the applicant to Greater Hyderabad Municipal Corporation (GHMC)/I & CAD Department/South Central Railway; Tax liability with respect to works contract services procured by the applicant from a 3rd party for supplying same services to GHMC/I & CAD Department/South Central Railway - Authority for Advance Ruling passed its order by classifying the services provided by appellant as ‘Works Contract Service' leviable to tax @ 18%. Further denied the appellant's claim for classifying the service as ‘Pure Service' and allow exemption under Notification No.12/2017 CT (Rate) - The appellant has agreed on two aspects of the rulings issued by the Authority relating to services provided by the appellant to I&CAD, and services procured by the appellant from 3rd party towards services provided to South Central Railway - On the other aspects of the ruling, the present appeal is filed

. Held:

I. Exemption of tax on the services provided by TS Transco to GHMC

Views of Appellate Authority (State Member): A reading of the communication made between M/s GHMC and M/s TRANSCO reveals that the contract is for shifting of the 132 KV towers (which are owned by the appellant) which are an obstruction for construction work taken up by M/s GHMC - The applicant, as per the request of GHMC, has agreed to replace or shift its own electric equipment and cables etc. to other place and for the purpose of replacing or shifting such electric equipment the expenditure that is expected to be incurred by the applicant is collected from GHMC - So, the agreement entered between the applicant and GHMC can be classified as ‘agreeing to do an act' under SAC ‘999792' - Activity of agreeing to shift the property for the purpose of laying roads can be termed as an activity in relation to function entrusted to the Municipality under Article 243W of the Constitution, therefore, the service is a ‘pure service' provided to the local authority making the supply exempt from levy as it falls under Entry no.3 of 12/2017-CTR - However, Appellate Authority (Central Member) is of the view that contract for shifting of cables and replacing with underground cables can be classified as contract for building, construction, fabrication, completion, erection, fitting out, improvement, modification, etc., of immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract and, therefore, the applicant is supplying Works Contract Service, not in the nature of ‘Original Works' and not entitled for exemption in terms of notification 12/2017-CTR - Consequently, in view of difference of opinion between the Members of the Appellate Authority, it shall be deemed that no advance ruling can be issued in respect of the question under the appeal, as provided under sub section (3) of Section 101 of the Act: AAAR

II. Tax liability for supply of works contract service by the applicant to South Central Railway.

In the context of the language used in the notification, supply of services without involving any supply of goods would be treated as supply of 'pure services' - Applicant was issued with contracts of installation and erection of electric equipment and transmission lines - The resultant civil structure is thus being used by the applicant for transmission of electricity and for supply of power to various customers for a consideration, meant pre-dominantly for the purpose of business - Hence, works contract service provided by M/s TRANSCO by way of construction of the said civil structure meant predominantly for the purpose of business is not covered under Entry 3(vi) of Notification No. 11/2017-CT(R) - Applying the principle of interpretation that General provisions should yield to specific provisions, entry 3 (vi) excludes the electrical works, therefore, the claim of lower rate of tax claimed under this entry is not valid: AAAR

3. Rate of Tax applicable to services procured by the appellant from 3rd party contractor in providing services to GHMC and I& CAD.

Work contract executed by various contractors to the applicant is meant for the purpose of business and it can be seen that there is involvement of transfer of property also, the supply can, therefore, be squarely classified as "Works Contact" -Facts of the case are analogous to the circular issued by CBIC vide No.152/08/2021-GST - Services provided by 3rd party are works contract services covered under residual entry 3(xii) of the notification and not covered under Entry 3(vi) of Notification No. 11/2017-CT(R)and attract tax at the rate of 9% + 9% (CGST+ TGST) - As such, the appellants claim that the services procured by them from private contractors are eligible for concessional rate of tax is not sustainable - Hence, the decision of the Lower Authority is upheld on the issue: AAAR

- Appeal disposed of: AAAR

2023-TIOL-299-CESTAT-AHM

CX - Case of department is that during audit, it was observed that appellant is engaged in manufacturing of excisable goods i.e. "Parts of Transformer" and "CRGO Core Lamination" and also engaged in trading of goods which is a declared service in terms of Section 66E(a) of Finance Act, 1994 - Further, trading of goods is one of services listed in Negative list of service under Section 66(D)(e) of Finance Act, 1994 and therefore, service tax is not eligible on trading of goods in terms of Section 66 B of the Act - Department has demanded the amount under Rule 6(3)(i) on the ground that appellant have traded goods which is deemed exempted service - It is crystal clear that on clearance value on which demand was raised, appellant have admittedly paid duty except for period 19.04.2016 to 23.01.2017 wherein appellant have not availed Cenvat credit - Thus, appellant have paid excise duty/ Cenvat on clearances on which demand was raised - With these details, there was no difficulty to Adjudicating Authority as well as appellate authority to arrive at the conclusion that there is no case of demand under Rule 6(3)(i) of Cenvat Credit Rules, 2004 - However, both lower authorities on flimsy ground that details were not given by appellant, confirmed the demand - Therefore, Tribunal do not agree with both the authorities - Revenue is at liberty to verify calculation of payment and or reversal of Cenvat in respect of inputs cleared as such and clearances on which no Cenvat credit was availed - Impugned order is set-aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

Cus - Issue to be decided is whether refund can be granted as per benefit of Notfn 102/2007-Cus., if condition 2(b) of notification has not been complied by a trader who cleared the goods on strength of commercial invoices - Said issue has been decided by Larger Bench in case of Chowgule & Company 2014-TIOL-1191-CESTAT-MUM-LB wherein it was held that a trader-importer, who paid SAD on imported goods and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of duty paid, would be entitled to benefit of exemption under Notfn 102/2007-Cus., notwithstanding the fact that he made no endorsement that "credit of duty is not admissible" on commercial invoices, subject to satisfaction of other conditions stipulated therein - Tribunal in a similar matter in case of Infinity Industries Pvt. Ltd. 2019-TIOL-3658-CESTAT-MAD considered the issue - Similar view was taken in case of SIBCO Overseas Pvt. Ltd. 2019-TIOL-288-CESTAT-MAD - Following said judgements, Tribunal opines that rejection of refund is without legal basis - Impugned order rejecting the refund is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

ST - The appellants are exporters of services and are entitled under law to claim refund of service tax paid on input services - Said entitlement has been provided through notification issued under Rule 5 of CENVAT Credit Rules, 2004 - For the period April 2016 to September 2016 and October 2016 to March 2017, appellants submitted their claim for refund of service tax paid on input services which were consumed in services exported - Same were rejected - When CENVAT Credit is availed by appellant so long as same has not been recovered by proceedings initiated by invocation of Rule 14 of CENVAT Credit Rules 2004, such credit remains on the books of accounts of appellant and he can utilize the same in the manner provided by law - Appellants had exported the services and, therefore, were eligible for refund of unutilized CENVAT Credit - Therefore, appellants were entitled for refund of Rs.23,73,694 claimed by them for the period from April 2016 to March 2017 - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT