I-T - If addition made by AO on account of valuation report obtained from DVO was not disputed by assessee with proper objection within time limit, no interference is called for in such addition: ITAT

I-T - If there is non-application of mind on part of AO and absolute lack of inquiry which renders assessment order as erroneous & prejudicial to interest of revenue, such case warrants revision u/s 263 : ITAT

I-T - Just because assessee committed mistake of declaring business income as agricultural income, AO cannot ignore statutory provision for characterizing income from one lorry of assessee as business income: ITAT

I-T - Since income was declared and tax dues are rightfully paid but in hands of wrong person, and such mistake was corrected by revising returns, same transaction cannot be charged to tax twice: ITAT

I-T - Circle rate or stamp duty valuation on date of agreement to sell, needs to be considered in order to compute consequential capital gain: ITAT

I-T - Penalty imposed u/s 271(1)(c) is sustainable where assessee remains non-cooperative during assessment as well as during penalty proceedings : ITAT

I-T - Disallowance on account of administrative expenditure u/s 14A should be restricted only to extent of exempt income earned by assessee: ITAT

I-T - Since very basis of levy of penalty by AO is beyond jurisdiction, such penalty deserves to be deleted: ITAT

I-T - Failure of assessee to explain source of cash deposits calls for addition on account of unexplained cash deposit: ITAT

I-T - Failure of assessee to prove identity & creditworthiness of share applicants and genuineness of transaction, calls for addition u/s 68 : ITAT

I-T - Interest income earned on fixed deposits with bank partake nature of business income, which is eligible for deduction u/s 80P(2)(a)(i) : ITAT

I-T - Considering effect of Explanation 3 to Section 271(1)(c), which clarifies that failure to file ITR is tantamount to concealment of particular of income, thus attracting levy of penalty, penalty imposed on non-cooperative Assessee merits being sustained: ITAT

GST - Expired E-way bill - Goods got released by owner upon payment of tax and penalty - Since this amount has been deducted from their account, transporter, who is the aggrieved person can file appeal: HC

GST - Signifying 'No' in the column meant to mark the assessee's choice to avail personal hearing would bear no legal consequence - Granting opportunity of hearing mandatory: HC

Cus - The decision to deny option of redemption had been premised on prohibition on import of 'rough diamonds' without accompanying Kimberly Process Certificate and based on finding that certificate submitted was not in conformity with other supporting documents, impugneed order cannot sustain: CESTAT

2023-TIOL-1289-HC-MUM-GST

Stanship Logistics Pvt Ltd Vs Deputy Commissioner Of State Tax

GST - Petitioner's customer Blue Star Ltd. imported a consignment of split air conditioners - On 9th October, e-way bill was generated for transportation of the said goods but on 10 October the said e-way bill was updated with a new vehicle number as one of the trucks broke down - On 11 October, respondent no.2 intercepted the truck at Bhiwandi and passed an order of detention u/s 129(1) with remark 'validity of e-way bill expired' - SCN was issued and an order came to be passed confirming the tax demand of Rs.10.09 lakhs and equivalent penalty - M/s Blue Star deposited the said amount  to secure release of goods since they were affected by detention and the said amount was subsequently deducted from the account of the Petitioner - Petitioner approached Respondent No. 1 to file an appeal challenging the order - However, Respondent No. 1 refused to take an appeal on record by making a note on the covering letter that payment of Rs. 20,18,308/- is made under Section 129(1) of the CGST Act by M/s. Blue Star Ltd., owner of the goods and the Petitioner being a transporter cannot file an appeal - Hence the present petition.

Held:  Respondent No. 1 is not justified in refusing to take the appeal, proposed to be filed by the Petitioner - The Order-in-Original against which the appeal is proposed to be filed is passed against the Petitioner - The fact that the goods which were being transported were released to M/s. Blue Star Ltd. by making payment of Rs. 20,18,308/- on behalf of the Petitioner would not mean that appeal has to be filed by M/s. Blue Star Ltd. - The said payment was made by M/s. Blue Star Ltd. for release of the goods in its capacity as an owner of the goods and the same was also deducted from the account of the Petitioner with M/s. Blue Star Ltd., therefore, payment was made by M/s. Blue Star Ltd. for and on behalf of the Petitioner, thus, Respondent No. 1 was not justified in refusing to take the appeal on record - Respondents could not bring to the notice of the Bench any provision in the Act which would not entitle a person against whom the Order-in-Original is passed, but the tax and penalty has been paid on his behalf by somebody else cannot file an appeal challenging the Order-in-Original - The appeal has to be filed by person aggrieved and in the present case the Order-in-Original is passed against the Petitioner and, therefore, the Petitioner is an aggrieved person and is entitled to file an appeal against the said order - Noting made by Respondent No. 1 on covering letter dated 27th January, 2020 is required to be quashed/deleted - Petitioner to lodge the appeal, manually, challenging the Order-in-Original dated 27th January, 2020 within a period of four weeks - Respondent No. 1 to take the said appeal on record and adjudicate the same on merit without any objection as to limitation since the Petitioner was pursuing bonafide before this Court - Respondent to adjudicate appeal expeditiously: High Court  [para 12, 13] 

- Petition disposed of: BOMBAY HIGH COURT

2023-TIOL-1288-HC-ALL-GST

Brijesh Kumar Singh Vs State of Uttar Pradesh

GST - Petitioner challenges the order dated 06.12.2022 passed by Dy. Commr. - Petitioner submits that in the notice dated 28.09.2022, reply was sought within 30 days - However, against item no.3 of the table appended to the notice, the Assessing authority had, at that stage itself, chosen to not give any opportunity of hearing to the petitioner by mentioning "NA" against column description " Date of personal hearing "; that similar endorsements were made against columns for " Time of personal hearing " and " Venue where personal hearing will be held "; that, therefore,  the petitioner was completely denied opportunity of oral hearing before the Assessing Authority.

Held:  Once it has been laid down by way of a principle of law that a person/assessee is not required to request for " opportunity of personal hearing " and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence - Even otherwise, in the context of an assessment order creating heavy civil liability, observing such minimal opportunity of hearing is a must - Principles of natural justice would commend to this Court to bind the authorities to always ensure to provide such opportunity of hearing - It has to be ensured that such opportunity is granted in real terms - The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted - Only thereafter, the explanation furnished may be rejected and demand created -  Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage - Writ petition is allowed by remitting the matter  to the respondent no.2/Deputy Commissioner: High Court [para 6, 7, 8, 9] 

- Matter remanded: ALLAHABAD HIGH COURT

2023-TIOL-919-CESTAT-MUM

Dinesh Dhola Vs CC

Cus - Appellant had imported 'rough diamonds' against bill of entry from Belgium with declared value of US$ 345,769.04 and furnished invoice as well as Kimberly Process Certificate (KPC) - Valuation, entrusted to 'trade panel', as per prevailing mechanism, elicited the allegation that actual value was substantially lower leading to proceedings before original authority that was found to be not legal and proper by jurisdictional Commissioner of Customs - The consignment comprised two lots of 6505.25 carats and 6772.98 carats declared to be worth US$ 193986.56 and US$ 151782.48 which were ascertained as limited to US$ 97578.75 and US$ 74502.78 respectively - It is on record that, at the request of importer, adjudication proceedings were undertaken without issue of SCN - Thus, effectively, the plea entered on behalf of jurisdictional Commissioner of Customs was for invoking of section 111(d) of Customs Act, 1962 to be followed by discard of option of redemption as goods were prohibited - The first appellate authority found the goods to be prohibited and declined to exercise discretionary option - The decision to deny option of redemption had been premised on prohibition on import of 'rough diamonds' without accompanying Kimberly Process Certificate (KPC) and based on the finding that certificate submitted was not in conformity with other supporting documents - Both the invoice and airway bill, have declared weight and value of 'rough diamonds' and cavil on the lack of segregation in accordance with 'lots' comprising the consignment appears to be more procedural than substantive; indeed, there is no finding of variation in total quantity to cast doubts on the certificate - Thus, the only discrepancy that the lower authorities could fall back on was the value of goods and that too, by ascertainment in accordance with a procedure peculiar to diamond industry - If certification was suspected to be faulty or not pertinent to the impugned goods, necessary verification should have been initiated with issuing authorities and taken to its logical conclusion - No such exercise was undertaken and thus denial is to be tested solely on conformity of re-determination with law - On the issue of valuation adopted for 'diamond' industry, Tribunal did have cause to consider it in depth on cross-appeals of Revenue against order of Commissioner (A), in similar circumstances - It is not just the legality of re-valuation that is relevant in dispute but even the legality of considering the certification, based on declaration of supplier in country of export to appropriate authorities there, as liable to be discarded on the basis of a finding, such as it is, of re-valuation undertaken by customs authorities, empowered restrictedly and in a context, for purpose so limited as not to extend to verification of one detail in a certificate prescribed by law for furnishing at the time of import - Impugned order is not in accordance with law, same is set aside: CESTAT

- Appeals allowed: MUMBAI CESTAT

2023-TIOL-918-CESTAT-AHM

CC, CE & ST Vs Fireoz Ahmed Waghbakriwala

CX - Appellants along with main noticee with Siddhivinayak Silk Mills (100% EOU) and other Co- notice were issued SCN - The said SCN was adjudicated in respect of all noticees including present appellant wherein present appellants were imposed penalties of Rs. 50Lacs each under rule 26 of Central Excise Rules, 2002 - Against said Order, out of all the noticees only three noticees filed appeal before CESTAT - However, the present two appellants have not filed any appeal against said Order - The Tribunal in respect of aforesaid three noticees set aside the O-I-O and remanded the matter - After remand, Adjudicating Authority in de novo adjudication proceeding confirmed the demand and imposed penalties on three appellants which were before the Tribunal - Against first O-I-O, present appellants had not filed any appeal before CESTAT therefore, order passed in respect of present appellants attained finality - Since the appeals were filed by other three noticees the order of CESTAT was strictly in respect of those three appellants only - Even though the operating portion of order sets aside the impugned order but it is only in respect of appellants which were before the CESTAT - It is obvious that the parties, the appellants in present case which were not before CESTAT, the order of CESTAT cannot be said to have been given in respect of present appellant which were not the parties as appellants before the CESTAT - No infirmity found in impugned order, same is upheld: CESTAT

- Revenue's appeals dismissed: AHMEDABAD CESTAT