I-T - Since loss returned by assessee was accepted by Revenue and audit report filed belatedly was available with AO during assessment, no adverse inference can be drawn for filing belated audit report: ITAT

I-T - If there is relevant material on basis of which reasonable person can form requisite belief that income chargeable to tax has escaped assessment, then proceedings u/s 147 can be validly initiated: ITAT

I-T - When income on which tax was deducted at source, is patently assessable in year under consideration, then benefit of TDS should also be allowed in same year : ITAT

I-T - Since there was no incriminating seized material found during search proceeding, addition u/s 153A on basis of bogus purchases merits to be deleted: ITAT

I-T - Mere suspicion that assessee has invested in alleged penny stock scrip cannot be made basis of addition u/s 69B : ITAT

I-T - Additions u/s 69A on account of unexplained cash deposits shall be limited to extent of unexplained source: ITAT

I-T - Interest paid on delayed payment of TDS to Central Government account is not eligible for allowance as business expenditure : ITAT

I-T - Since filing of appeal by Revenue is not in consonance of CBDT Circular No. 3 of 2018 , such appeal is deemed to be dismissed: ITAT

ST - Though assessee is liable to pay service tax on entire amount collected from customer(PCO user), same would be applicable only w.e.f. 01.03.2011 as Explanation was added to Rules only on such date: CESTAT

ST - When appellant has provided services only to units under SEZ, said services were covered by provisions of sub-section (1) of Section 26 of SEZ Act, 2005, Revenue does not have authority of law to collect service tax on services provided by SEZ developer to units in SEZ: CESTAT

2023-TIOL-917-CESTAT-MUM

Diebold India Pvt Ltd Vs CC

Cus - The dispute triggered by import of 'DB 49-213270-000F 15" DC LCD display' and 'Diebold AUO Q150*Go3 V2 5621, USA' valued at Rs.41,30,488 against bill of entry declaring these to be 'parts of ATM machines' for charging to duty at rate corresponding to tariff item 8473 50 00, is detriment of duty being applicable on former by re-determination of classification as 'other monitors' corresponding to tariff item 8528 5900 - Objection was raised on recourse to a description that offered import without duty as the goods were declared to be and, as reported by examining officers, to be utilized in assembly of 'ATM machines' thereby excluding coverage within description corresponding to tariff item 8473 50 00 and as 'monitors' in tariff enumerate did not offer latitude of classification elsewhere - The dispute is all about placement of imported goods at the tariff item level with both sides claiming their respective classifications to be more appropriate; both the importer and customs authorities, however, appear to have overlooked the significance of structural hierarchy and General Rules for Interpretation of Import Tariff which sets out the flow from heading level to tariff item level as well as validity of comparison levels - Appellant claims that goods find use in more than one equipment and owing to such adaptability, fits within generality of claimed classification - Revenue relies upon specificity of 'monitors' in heading 8528 of First Schedule to Customs Tariff Act, 1975 to justify overwhelming precedence over claimed heading - In the light of claim of appellant on classification approved by Supreme Court in re Secure Meters Ltd 2015-TIOL-100-SC-CUS , qualification of substituted classification to be at par with claimed classification and amenable to choice by recourse to rule 3(3) of General Rules for Interpretation of Tariff is questionable - There are too many gaps, despite the abundance of material in order of lower authorities, that has grown beyond the brief proposal in SCN to enable determination at second appellate level that the impugned goods would be covered by description corresponding to a particular heading, sub-heading and tariff item - The importer proposed one in accordance with their lights and to their benefit - Adjudicating authority who is expected to independently justify the proposed heading has not adhered to that responsibility - That requires rectification - Impugned order is set aside and SCN restored before original authority to render a fresh decision that would be in conformity with decisions of Supreme Court on adversarial engagement in classification disputes and on distinction, if any, between 'LCD' and 'monitor' to justify appropriateness of proposed classification: CESTAT

- Matter remanded: MUMBAI CESTAT

2023-TIOL-916-CESTAT-MAD

BSNL Vs CGST & CE

ST - The issue is with regard to demand of service tax under telecom services for period 01.06.2008 to 31.03.2011 - M/s. BSNL provides telecom service to subscribers/customers who have obtained telephone connection from them and also to pubic customers/callers by an arrangement of Public Call Office (PCO) - These PCOs are maintained by a person called PCO operators appointed by BSNL for this purpose - Prior to 01.06.2008, call from PCOs were charged uniformly at the rate of Re.1/- per Metered Call Unit (MCU) i.e. per minute with a 60 seconds pulse - The tariff of Re.1/- per MCU consisted of three components viz. revenue share for BSNL, commission for PCO operators and service tax to Government - Out of Re.1/- charged for a call, Re.0.11 was for service tax payable and remaining Re.0.89 was for both the revenue share of BSNL and commission payable to PCO operators - Service tax payable was worked out by BSNL by taking call charge of Re.1 as cum-tax value and there was no service tax separately charged and collected from customers - W.e.f. 01.06.2008, it appeared that BSNL had revised their policy and restructured tariff of PCO business - As per revised policy issued vide Circular 3-5/007 R&C of BSNL, New Delhi, it appeared that Maximum Retail Price of call charges of Re.1/- per MCU remained as such, but the nature of consideration to PCO operators was changed from "commission basis" to "discount basis" which varied from Re.0.30 to Re.0.40 per MCU - SCNs were issued for different periods between 01.06.2008 to 31.03.2011 demanding service tax along with interest and for imposing penalties - Appellant submitted that though they are liable to pay service tax on entire amount collected from customer, same would be applicable only w.e.f. 01.03.2011 as said Explanation was added to Rules only on such date - It can be seen that Explanation has been added only w.e.f. 01.03.2011 which indicates that the service tax has to be paid on gross amount collected from the person (PCO user) and to whom the telecom services are provided - In appellant's own case 2018-TIOL-1266-CESTAT-MAD , the very same issue was considered and Tribunal held that Explanation would take effect only from 01.03.2011 and demand for the period prior to 01.03.2011 cannot sustain - By applying the ratio of decision in appellant's own case, the demand cannot sustain and requires to be set aside - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2023-TIOL-914-CESTAT-MUM

Hiranandani Builders Vs CST

ST - On perusal of SCN through which a demand of service tax was raised on appellant, it is observed that said SCN discusses about three Notifications, viz. 04/2004-ST, 09/2009-ST and 17/2011 - Contention of Revenue is that the conditions of said notifications were violated by appellant and therefore, appellant was not entitled for benefits provided under sub- section (1) of Section 26 of SEZ Act, 2005 - Clause (e) of sub-section (1) of Section 26 of SEZ Act, 2005 provides that every developer and entrepreneur shall be entitled to exemption from service tax under Chapter V of Finance Act, 1994 on taxable services provided to a developer or units to carry on authorized operations in a special economic zone - The said provision is subject to provisions of sub-section (2) of same section - Sub-section (2) provides that Central Government may prescribe the manner in which the terms and conditions subject to which exemptions, concessions and drawback or other benefits shall be granted to developer entrepreneur under said sub-section (1) - During entire proceedings including hearing, Revenue could not place on record as to which are the conditions that are prescribed by Central Government under sub-section (2) of Section 26 of SEZ Act, 2005 - Said Notfns such as 04/2004, 09/2009 and 17/2011 are providing exemptions to units under SEZ - Here the question is which provision requires the appellant who is a developer of SEZ to pay service tax - The conditions under said notifications either decide entitlement of units for exemption, but provisions under said Section 26 provide that the units are exempted from levy of service tax when they receive services - So, clear interpretation provides that when appellant has provided services only to the units under SEZ, the said services were covered by provisions of sub-section (1) of Section 26 of SEZ Act, 2005 - Further, said three notifications are not issued under sub-section (2) of said Section 26 - Revenue could not place on record any conditions prescribed under sub-section (2) of Section 26 ibid - Therefore, issue is covered by provisions of sub-section (1) of Section 26 ibid - Therefore, Revenue does not have authority of law to collect service tax on services provided by SEZ developer to units in SEZ - Impugned order is not in accordance with provisions of law: CESTAT

- Appeal allowed: MUMBAI CESTAT