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Home e-Newsletters Index Year 2024 April Day 1 - Monday

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TMI Tax Updates - e-Newsletter
April 1, 2024

Case Laws in this Newsletter:

GST Income Tax Customs Insolvency & Bankruptcy Service Tax Central Excise Indian Laws



Highlights / Catch Notes

    GST

  • Liability of Collect Tax at Source (TCS) - Exempt supplies - Section 52 of the Central Goods and Services Tax Act, 2017 (CGST Act) - Petitioner operating an e-auction service for agricultural and non-agricultural commodities. It is contended that payment for the contract can either be settled through the Petitioner’s platform, or it can be settled directly between the buyer and seller. The Petitioner does not guarantee settlement of transactions by way of delivery of goods or payment. The Petitioner merely charges transaction fees for providing the platform to its members for the purpose of e-auction. - The High Court, after considering the submissions of both parties, directs the adjudicating officer to address the petitioner's preliminary objections regarding the applicability of Section 52 of the CGST Act.

  • Levy of GST - activity of holding equity capital by the parent Company in the Petitioner - ultravires Section 5 of the IGST Act, 2017 read with Section 7 of the CGST Act, 2017 or not - The High Court concluded that mere holding of shares by a holding company in its subsidiary cannot be classified as a supply of service, as clarified by circulars issued by both the Central and State Governments. The court held that such activity does not fall within the purview of GST. - Given the similarity of the present case to the referenced judgment, the High Court held that the impugned Show Cause Notices were without jurisdiction or authority of law. Consequently, the court quashed the notices issued by the respondent.

  • Demand of GST - Validity of the order in FORM GST DRC-07 - The High Court declined to entertain the petition directly, emphasizing the need to exhaust statutory remedies before seeking relief under Article 226. The Court cited precedents to support its stance that writ jurisdiction should not be invoked against show-cause notices unless they are wholly without jurisdiction or illegal. It directed the petitioner to approach the appellate authority for redressal, underscoring the importance of adherence to the statutory regime.

  • Taxability of Personal Guarantee and Corporate Guarantee in GST - Corporate Guarantees provided by a holding company to its subsidiary under the Central Goods & Service Tax Act, 2017. The petitioner sought a declaration that such activity does not constitute a taxable supply of services. Arguments were presented regarding the validity of a Circular issued by the Central Board of Indirect Taxes & Customs, interpretation of previous legal precedents, the impact of recent amendments, and the nature of Corporate Guarantees as contingent contracts. The High Court allowed time for further submissions from both parties and directed no coercive action against the petitioner until further proceedings. - Matter listed for next date.

  • Additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post-GST regime without updating the Schedule of Rates (SOR) - The Court disposed of the writ petition, granting the petitioner the liberty to file an appropriate representation before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from the date of the order. The Additional Chief Secretary was directed to make a final decision within four months of receiving the representation, after consulting all relevant departments.

  • Seeking grant of regular bail - irregular availment of Input Tax Credit - The High Court, after considering the arguments of both parties, granted bail to the petitioner in a complaint case under the CGST Act, 2017. It emphasized the presumption of innocence until proven guilty and the importance of balancing the right to liberty with societal interests. Despite allegations against the petitioner, the court deemed it necessary to release them on bail, considering factors such as the pending trial, the severity of potential punishment, and the lack of evidence suggesting witness tampering. The court imposed specific conditions for bail to ensure the petitioner's compliance with legal proceedings and prevent any potential interference with the case.

  • Cancellation of GST registration of petitioner - The petitioner contended that they were not served the notices and thus were unable to reply, resulting in ex-parte demands being raised against them. The High Court found merit in the petitioner's argument regarding the lack of access to the notices and set aside the impugned orders, remitting the matter for re-adjudication. The court emphasized the importance of providing opportunities for parties to be heard and directed the petitioner to file a reply within two weeks, with the matter to be re-adjudicated by the Proper Officer in accordance with the law.

  • Maintainability of petition - appealable order or not - non-constitution of the Appellate Tribunal - The High Court acknowledges that the impugned order is appealable under Section 112 of the CGST/OGST Act. It also recognizes that due to the non-constitution of the Appellate Tribunal, the petitioner is deprived of its statutory remedy of appeal and the corresponding benefits under the mentioned sections of the Acts.

  • Income Tax

  • TP Adjustment - Provision of Administrative and Agency Services - Determination of Arm's Length Price (ALP) - allocation of expenses relating to income streams between two segments - The appellant challenged the actions of the Assessing Officer (AO) and Transfer Pricing Officer (TPO) in determining the ALP and rejecting their TP analysis. The Appellate Tribunal found in favor of the appellant, concluding that the TPO's actions were beyond jurisdiction and based on incorrect facts. The Tribunal upheld the appellant's use of Transfer Pricing Methodology and segmentation of accounts, directing the AO to delete the adjustments made.

  • Reopening of assessment without releasing seized documents by Crime branch - Petitioner seeking the release of seized documents and items to effectively respond to reassessment notices. Despite a court order directing the release of seized items, the petitioner allegedly failed to diligently pursue their release over several years. The High Court noted the petitioner's lack of effort in complying with court orders and found the petition to be an abuse of the judicial process. Consequently, the Court dismissed the petition and imposed costs on the petitioner.

  • Priority Charge - Seeking directions to remove the order of attachment over the property of the borrower, which according to the petitioner, is mortgaged and is a secured asset - The petitioner, being a secured creditor with the security registered with the Central Registry, was entitled to the benefit of Section 26E of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The Court affirmed that the rights of secured creditors to realize secured debts shall have priority over all other debts and government dues. - The Court clarified that even if an auction is conducted by the secured creditor and the sale certificate is not registered, the Registering Authority may register it, notwithstanding the attachment by government departments.

  • Rectification u/s 154 - Exemption u/s 11(2) - Accumulation of income - The Appellate Tribunal found merit in the appellant's contention regarding the amount to be accumulated under section 11(2) of the Act. - It was established that the appellant had accumulated Rs. 110,94,73,718/- in the specified modes under section 11(5) of the Act, which was lower than the required accumulation of Rs. 120,00,31,900/-. - Therefore, the deduction under section 11(2) was allowable only on the amount accumulated, resulting in a partial allowance of the claim.

  • Validity of Order passed against a non-existent entity - The Appellate Tribunal's decision revolves around the critical legal principle that an assessment order issued in the name of a non-existent entity, due to merger or amalgamation, is void from the outset. This principle was upheld through reliance on established judicial precedents, particularly from the Supreme Court and Delhi High Court. The case underscores the necessity for the Assessing Officer to ensure that assessment orders reflect current legal realities, including the existence of the entities involved. By quashing the order as void ab initio, the Tribunal reaffirmed the importance of jurisdictional correctness over procedural regularity in tax assessment proceedings.

  • Customs

  • Suspension of operations of handling the cargo of third parties - The High Court observes that the absence of a show cause notice and an opportunity for a hearing violates fundamental principles of natural justice, particularly given the significant civil consequences of the order. Additionally, the Court takes into account the potential adverse impact on third parties associated with the petitioners. Consequently, it orders the remand of proceedings to the Commissioner for a fresh order, emphasizing the necessity of adherence to procedural fairness.

  • Levy and collection of Cost recovery charges - Validity Of Notification No.26/2009 issued by Central Board of Excise and Customs - The appellants (CBEC) argued that the regulation was valid under Sections 141 and 157 of the Customs Act, 1962, and justified as administrative charges. However, the High Court found that the regulation lacked specific statutory authorization and amounted to an unauthorized tax, violating constitutional provisions. Therefore, the Court concluded that the regulation was ultra vires the Customs Act, 1962, and dismissed the appeal.

  • Revocation of CHA License - Customs Broker resorted to unprofessional methods while clearing the goods imported vide Bill of Entry - It was revealed during the investigation that an employee of the appellant's office had manipulated the redemption fine and penalty amounts in the Order-in-Original, leading to the overcharging of the importer. - While the tribunal acknowledged the manipulation in the Order-in-Original, the crux of the decision rested on procedural irregularities rather than the merits of the fabrication allegations. - The tribunal ruled in favor of the appellant, emphasizing the importance of adherence to procedural timelines outlined in Regulation 20 of CBLR, 2013. It noted that the absence of a specific offence report and the delay in issuing the Show Cause Notice beyond the prescribed period rendered the proceedings against the appellant invalid.

  • Exemption from Basic Customs Duty - import of Lithium-Ion Batteries falling under Customs Tariff Heading 85076000 - Time limitation for submission of Country of Origin certificate - The appellant couldn't produce the COO certificate initially but later obtained it and appealed against the Commissioner (Appeals)'s decision, which rejected the appeal as time-barred and deemed the appellant ineligible for exemption. The Tribunal noted that the limitation period for filing appeals was extended due to the COVID-19 pandemic, thereby setting aside the rejection on grounds of being time-barred. The matter was remanded to the Commissioner (Appeals) for reconsideration, specifically regarding the retrospective issuance of the COO certificate and its implications on exemption eligibility.

  • Revocation of Licenced Customs Broker Licence - The Commissioner alleged violations of various provisions of the CBLR, particularly related to bribery. However, the appellant contested these allegations, arguing that the amounts in question were for legitimate expenses, not bribes, and that they cannot be held responsible for the actions of their employees without evidence of authorization. The Tribunal found that the allegations were based on preliminary findings and lacked sufficient evidence to substantiate them. Therefore, it set aside the Commissioner's order, ruling that the proceedings were premature and unsubstantiated. - Therefore, the Tribunal set aside the Commissioner's order.

  • Valuation - export duty - Liability to pay customs duty on the FOB value, on export of iron ore fines considering the same as cum-duty value or otherwise - After considering the arguments presented by both parties, the Tribunal referenced several past rulings that had addressed similar issues. These precedents consistently held that cum-duty value cannot be used to determine the value for the levy of export duty. In light of this established interpretation of the law, the Tribunal upheld the Impugned Orders and dismissed the Appeals.

  • Value addition - Duty-free import of gold - Replenishment of gold under the ‘replenishment scheme’ from DIL against export of gold jewellery - The tribunal concluded that the manufacturing process was indeed fully mechanized, dismissing the department's claim of a semi-mechanized process. This determination was crucial as it affected the applicable wastage norms and minimum value addition required under the FTP. - Regarding Value Addition Calculation, the tribunal, referencing FTP provisions and clarifications from the Director-General of Foreign Trade (DGFT), sided with the appellants. It was held that the calculation method adopted by the department was incorrect, and the appellants had indeed met the value addition criteria as per the correct interpretation of FTP guidelines.

  • Container storage charges - The High Court upheld the decision of the single judge, stating that since the goods were indeed confiscated by customs authorities while in transit, the port trust was justified in levying container storage charges. The appellant's inactivity after requesting permission to de-stuff the goods did not absolve them of liability. The court dismissed the appellant's argument that containers could not be considered "goods" under the Customs Act. It upheld the legality of the customs authorities' orders of confiscation, as they had the power to confiscate both goods and containers under Section 111(d) of the Customs Act.

  • DGFT

  • The amendments in Appendix 4B of the Handbook of Procedures 2023 represent a calibrated adjustment to India's foreign trade regulatory framework concerning the importation of precious metals. It illustrates a meticulous approach to integrating regulatory agility with strategic economic considerations, aiming to ensure a balanced, transparent, and efficient importation process.

  • State GST

  • Clarification on TCS liability under section 52 of the DGST Act, 2017 in case of multiple E-commerce Operators in one transaction - The circular clarifies the TCS liability under section 52 of the DGST Act concerning transactions involving multiple ECOs. It distinguishes between scenarios where the supplier-side ECO is and isn't the direct supplier, attributing TCS compliance to the entity responsible for remitting payment to the supplier. In cases where the supplier-side ECO acts solely as a facilitator, it bears the TCS burden, whereas, when the supplier-side ECO is also the supplier, the buyer-side ECO assumes TCS collection responsibilities.

  • Taxability issues surrounding personal and corporate guarantees in the realm of Goods and Services Tax (GST). - The circular extends its clarification to corporate guarantees provided by one company for another related company or by a holding company for its subsidiary. These guarantees, too, are considered supplies of service between related persons under the HGST / GST Act, thereby attracting GST. It further specifies that the valuation of such supplies will follow Rule 28 of the HGST Rules, with a recent amendment introduced through Notification, to ensure uniformity in valuation practices.

  • The Assam State GST Circular No. 3/2023, addresses the structured approach and guidelines for the scrutiny of returns under the GST framework. This directive builds on earlier instructions and aims to fortify the procedural integrity and compliance within the tax administration system. The circular elucidates the processes, from the selection of returns for scrutiny to the eventual conclusion of scrutiny proceedings, ensuring a thorough and time-bound examination of returns filed by the registered persons. The intention is to maintain a robust compliance mechanism that aligns with the legal and procedural framework established under the Assam GST Act, 2017, and its accompanying rules.

  • Indian Laws

  • Cancellation of allotment of land on the basis of an alleged false affidavit - Hindu Undivided Family (HUF) property - the petitioner argued that the Defence Colony property, previously owned by him, was absorbed into the HUF before the acquisition of his land in Yakootpur, rendering him eligible for an alternate plot - The court rejected the petitioner's contention that the property being in the HUF's name exempted him from disclosure, underscoring that an HUF and its members hold collective ownership of its properties. Consequently, the court held that the petitioner's failure to disclose his interest in the Defence Colony property, irrespective of its HUF status, disqualified him from the allotment under the scheme.

  • IBC

  • Admission of section 9 application - Operational Creditors - debt payable or not - NCLAT noted that the existence of the operational debt was established, and the Appellant failed to refute the observations regarding the Reply Notice. - Regarding the back-to-back payment arrangement, the Tribunal determined that the contract terms did not support the Appellant's claim. Payments were to be made based on running accounts, not solely dependent on funds received from a third party. - The Tribunal concluded that there was no evidence of a prior dispute raised by the Appellant before the demand notice. Additionally, the invocation of the arbitration clause was not pursued by the Appellant, raising questions about bonafide intentions.

  • Seeking grant of Interim Stay of the Sale Notice - sale of assets of the Corporate Debtor and the property of one Mr. S. Srinivasan (Guarantor) - The adjudicating authority dismissed the appellant's application for relief, citing reasons such as the corporate debtor's properties being mortgaged to a secured financial creditor and previous decisions allowing joint sales of assets. - The tribunal emphasized that the appellant's failure to challenge the subsequent e-auction notice amounted to waiver and estoppel by conduct.

  • Approval of the Resolution Plan - Requirement of liability of PF and ESI dues to be paid in Full - Claim u/s 7A, 7Q, and 14B of the Employees' Provident Funds & Miscellaneous Provisions Act 1952 - The Tribunal noted that while the amount under Section 7A had been fully paid, no payment had been made towards the amounts claimed under Sections 7Q and 14B. It referred to legal precedents and held that all amounts claimed under Sections 7A, 7Q, and 14B were part of provident fund dues, emphasizing the importance of paying them in full. The Tribunal cited judgments and directed the Successful Resolution Applicant to make the necessary payments under Section 7Q within two months and apply for waiver of damages under Section 14B within 30 days.

  • Rejection of Section 7 application - The appellate tribunal overturned the adjudicating authority's decision to dismiss the Section 7 application due to non-compliance with previous orders. It emphasized the appellant's efforts to comply and highlighted the respondent's failure to fulfill their obligations despite appearing through counsel. As a result, the tribunal revived the Section 7 application for further proceedings.

  • Ownership of leasehold rights over the subject plot - demand for enhanced land cost was raised much before initiation of CIRP - The tribunal held that the demand for enhanced compensation by the respondent was valid and pre-dated the initiation of CIRP. It was emphasized that the respondent's rights could not be overridden by the provisions of the IBC, 2016, without compliance with the original terms of the lease deed. - The tribunal clarified that the clean slate principle does not extend to demands made by public authorities before the initiation of CIRP, especially when such demands pertain to clearing defects in the title of the land itself. - The judgement highlights the balance between the objectives of the IBC, 2016, and the rights of public sector authorities over leased assets.

  • Service Tax

  • Export of service or not - Palace or provision of services - The case revolved around the Appellant's provision of sales promotion and marketing services to companies located outside India. The department contended that these services were taxable as they were provided and used in India. However, the Appellant argued that the services constituted exports, exempt from service tax, as they were provided to recipients outside India. The Tribunal, after considering the submissions and relevant legal provisions, ruled in favor of the Appellant. It concluded that the services fell under the category of export of service and were therefore not liable to service tax. Additionally, the Tribunal upheld the Appellant's entitlement to exemption under Notification No. 18/2009-ST and set aside the penalty imposed by the department.

  • Refund of CENVAT Credit - services related to Information Technology (ITSS) - The appellate tribunal analyzed submissions regarding the eligibility for refund on ITSS, the denial of CENVAT credit, denial of credit for service tax paid on generators, and discrepancies between CENVAT records and ST-3 returns. The Tribunal found that while the appellant demonstrated independence from M/s Agilent Technologies (Singapore), they failed to provide evidence of valid orders for ITSS services, leading to the denial of the refund claim. However, they ruled in favor of the appellant regarding the denial of CENVAT credit, credit for service tax paid on generators, and discrepancies between records, remanding these matters for further verification and consideration by the Original Authority.

  • CENVAT Credit - input services - erection and commissioning of machines carried out in China and Italy based on invoices / debit notes raised by M/s.Voltas Ltd., Coimbatore - The department contested the eligibility, arguing that these services were not directly related to the manufacture of the appellant's finished products. However, the Appellate Tribunal ruled in favor of the appellant, citing the broad definition of "input services" during the relevant period, which encompassed activities relating to business. Additionally, they acknowledged the necessity of the outsourced services for the operation of the exported machines, thereby allowing the appellant's claim for credit.

  • Levy of service tax - Life Insurance Service - Renting of Immovable Property Service or not - On the taxability of life insurance service, the Tribunal determined that the premium collected by the appellant is exempt from service tax as it pertains to sovereign functions. Regarding renting of immovable property service, the Tribunal upheld the levy of service tax based on recent legal precedent. However, penalties for non-payment of service tax on renting of immovable property were dropped due to conflicting opinions on the applicability of service tax during the relevant period.


Articles


Case Laws:

  • GST

  • 2024 (3) TMI 1316
  • 2024 (3) TMI 1315
  • 2024 (3) TMI 1314
  • 2024 (3) TMI 1313
  • 2024 (3) TMI 1312
  • 2024 (3) TMI 1311
  • 2024 (3) TMI 1310
  • 2024 (3) TMI 1309
  • Income Tax

  • 2024 (3) TMI 1308
  • 2024 (3) TMI 1307
  • 2024 (3) TMI 1306
  • 2024 (3) TMI 1305
  • 2024 (3) TMI 1304
  • Customs

  • 2024 (3) TMI 1303
  • 2024 (3) TMI 1302
  • 2024 (3) TMI 1301
  • 2024 (3) TMI 1300
  • 2024 (3) TMI 1299
  • 2024 (3) TMI 1298
  • 2024 (3) TMI 1297
  • 2024 (3) TMI 1296
  • 2024 (3) TMI 1295
  • Insolvency & Bankruptcy

  • 2024 (3) TMI 1294
  • 2024 (3) TMI 1293
  • 2024 (3) TMI 1292
  • 2024 (3) TMI 1291
  • 2024 (3) TMI 1290
  • Service Tax

  • 2024 (3) TMI 1289
  • 2024 (3) TMI 1288
  • 2024 (3) TMI 1287
  • 2024 (3) TMI 1286
  • 2024 (3) TMI 1285
  • 2024 (3) TMI 1284
  • 2024 (3) TMI 1283
  • 2024 (3) TMI 1282
  • 2024 (3) TMI 1281
  • 2024 (3) TMI 1280
  • Central Excise

  • 2024 (3) TMI 1279
  • Indian Laws

  • 2024 (3) TMI 1278
 

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