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Home e-Newsletters Index Year 2024 April Day 17 - Wednesday

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TMI Tax Updates - e-Newsletter
April 17, 2024

Case Laws in this Newsletter:

GST Income Tax Customs Insolvency & Bankruptcy Service Tax Indian Laws



Highlights / Catch Notes

    GST

  • Condonation of delay in filing an appeal before the Appellate Authority - The High Court, while acknowledging the delay in appeal filing beyond the condonable period of limitation, emphasized the petitioner's substantive right to seek redress. Considering that the tax liability had already been recovered from the petitioner and a pre-deposit was made along with the appeal, the court directed the second respondent to consider and decide on the appeal without considering the limitation period. As a result, the writ petition was allowed, with no costs incurred.

  • Seeking reimbursement of GST amount paid by the petitioner - Interpretation of Contract Clause - After analyzing the documents and submissions, the High Court found that the petitioner's quoted rates were indeed exclusive of GST and that the respondent had already reimbursed GST for previous bills. The court rejected the respondent's interpretation of the contract clause, stating that there was no evidence to support that it included GST. Therefore, the court directed the respondent to reimburse the GST paid by the petitioner on all bills within a specified timeframe.

  • Validity of assessment order - SCN as also the assessment order have not been signed by the 2nd respondent either digitally or physically - The High court examined similar cases and legal provisions, concluding that unsigned orders are legally ineffective. Sections 160 and 169 of the CGST Act do not justify the absence of signatures. Previous judgments from other high courts supported the requirement of signatures for authentication. Consequently, the court set aside/quashed the challenged documents, affirming that the lack of signatures rendered them legally unsustainable.

  • Income Tax

  • Characterization of receipt - amount received by the appellant upon retirement from the partnership - taxability as capital gains under the Income Tax or not? - The High Court agrees with the appellant's argument that the amount received by her upon retirement, being the balance of her capital account in the firm, does not qualify as a transfer for the purpose of capital gains taxation. It concurs with the principle that the adjustment of rights of partners in a dissolved firm, through the distribution of assets, does not amount to a transfer. - Regarding the receipt of the share value of goodwill, the High Court holds that in the absence of a clear transfer of goodwill to the firm by the appellant, such receipt cannot be taxed as capital gains.

  • Reopening of assessment - reasons to believe - On the issue of disclosure and compliance with TDS provisions, the court found that the petitioner had indeed disclosed all material facts during the original assessment proceedings. The transactions in question were merely transfers of funds on instructions from the horse owners. - The court held that the objections raised by the petitioner against the reassessment were valid. The authorities had failed to consider the full scope of the disclosures made during the original assessments and erroneously pursued reassessment.

  • Revision petition u/s 264 by assessee - Claiming to act as a collection agent for borewell digging payments, the petitioner argued that the income was exaggerated and included expenditures paid to rig owners. Despite the petitioner's assertions, the High Court found insufficient evidence to support their claims and emphasized the need for comprehensive documentation to challenge the assessment under revisional jurisdiction. However, acknowledging the petitioner's request for another opportunity to present evidence, the court granted the writ petition, nullified the previous order, and instructed the petitioner to appear before the Commissioner of Income Tax with all necessary documents for reconsideration.

  • Speculative loss or not - Determine the nature of losses on forward foreign exchange contracts and foreign exchange derivative contracts - the tribunal found the evidence provided by the appellant to be insufficient in establishing the nature of the losses. It highlighted discrepancies in the claimed amounts and noted a lack of clarity regarding the cancellation of contracts. Consequently, the tribunal set aside the CIT(A)'s decision and remanded the issue for further examination. It emphasized the importance of establishing a direct connection between the transactions and the appellant's business activities.

  • Exemption u/s 11 - Charitable activity u/s 2(15) - Commercial activity - Citing past decisions favorable to the trust under similar assessments, the Tribunal reiterated that activities generating income do not automatically disqualify an entity from being charitable if the primary purpose is charitable and the commercial activities are incidental. It was highlighted that the trust's income was indeed applied towards its stated charitable purposes, fulfilling the criteria for exemption under Section 11.

  • Addition u/s 68 - the Tribunal noted the extensive documentary evidence provided by the assessee to establish the legitimacy of the loan transactions. However, the AO failed to conduct proper investigations and relied solely on the report from the investigation wing. As the assessee had fulfilled its initial burden of proof, the Tribunal directed the deletion of the addition.

  • Royalty receipts - income deemed to accrue or arise in India - assessee had sold software licenses to its associated enterprises and to other Indian customers - The ITAT Bangalore ruled that the income received by the software company from software sales to IBM India and others did not constitute royalties under the applicable laws and treaties. This judgment aligns with SC's interpretation and emphasizes consistency in legal interpretations across different assessment years.

  • Unexplained investment u/s 69 - The tribunal closely examined the additions made under Section 69 related to unexplained investments in stock. The assessees argued that rough jottings or documents seized during raids were not conclusive evidence of unaccounted investments. Furthermore, they contended that previous voluntary disclosures or surrendered amounts during surveys should offset these additions.

  • Addition u/s 56(2)(vii)(b) - transfer under gift deed - family settlement- The Assessee contended that the transfer of land through a gift deed was part of a family settlement/arrangement between the parties involved. They argued that various documents, including a family settlement arrangement and MOUs, supported their position. The Revenue, however, maintained that the transfer was without consideration and fell within the ambit of deemed income under the Act. - The ITAT concluded that the transaction should be understood in the context of the broader arrangement and not in isolation. Therefore, the addition made by the AO was deemed unjustified, and the appeal of the Assessee was allowed.

  • Royalty receipt - transfer of right to use a computer software - The Judgement by the Appellate Tribunal addressed the dispute regarding the classification of income and the applicable tax rate for the appellant. The Tribunal found in favor of the appellant, ruling that the income received should be considered royalty income under Sec. 9(1)(vi) of the Act and taxed at 10%.

  • TDS u/s 194C - payments of purchase to various vendors - Non deduction of TDS - Upon analysis, the Appellate Tribunal agreed with the assessee, ruling that the transactions were indeed purchases of finished goods. It noted that the manufacturers independently sourced raw materials and produced goods according to the specifications provided. Furthermore, the Tribunal found that the assessee's control over production was limited, as evidenced by the return of rejected goods to the vendors. Tribunal dismissed the revenue's appeal.

  • Exemption u/s 11 - rejection of assessee’s application for registration u/s 12A - The Appellate Tribunal found that the rejection of the application was unjustified as it was based on suspicion without credible material. It emphasized that at the registration stage, the focus should be on determining whether the objectives of the institution are charitable, rather than questioning the expenditure incurred. It was observed that while the Commissioner did not doubt the charitable nature of the institution's objectives, the rejection was primarily based on concerns about promoting pharmaceutical businesses. However, the Tribunal asserted that educating and raising awareness about diseases like endocrine disorders is inherently charitable.

  • LTCG OR STCG - Capital gain on sale of equity shares - period of holding of shares - There exists a clause for condition precedent to the sale which has to be fulfilled by both the vendor and the purchaser - The Appellate Tribunal's decision focused on the interpretation of the "date of transfer" of shares. The Tribunal cited several precedents, including the decision of the Delhi High Court in Bharti Gupta Ramola vs. CIT and similar Tribunal decisions, which supported the assessee's contention that the transfer date should be recognized as the date when all substantive conditions of the share transfer agreement were fulfilled. The Tribunal concluded that the shares were held for more than 12 months and therefore qualified for LTCG treatment.

  • Revision u/s 263 - Disallowance of STCG - FMV determination of shares - The Appellate Tribunal (AT) scrutinized the fair market value and share valuation process, concluding that the appellant failed to substantiate their claims adequately. They found discrepancies in the valuation and affirmed the PCIT's decision to reject the appellant's arguments. The AT affirmed the PCIT's characterization of the transactions as structured and not at arm's length. They concluded that the assessment order was prejudicial to the interest of the Revenue and upheld the PCIT's decision to set it aside.

  • TDS u/s 194C - Non deduction of TDS on payment to the persons who were not the owner of the vehicle - The Tribunal interpreted the term "owns" in section 194C(6) to encompass possession rather than strict registered ownership. Referring to section 44AE, which defines "owner" for the purpose of presumptive taxation, the Tribunal concluded that ownership includes possession of the goods carriage, not just registered ownership. Citing judicial precedents and the intention of the legislature to provide benefits to taxpayers, the Tribunal determined that the appellant complied with section 194C(6) by obtaining declarations from those in possession of the goods carriages and making payments accordingly.

  • Customs

  • Jurisdiction - power to adjudicate SCN - The High Court rejected the contention that the previous involvement of a Commissioner of Customs in the case's proceedings biased the adjudication process. It held that the competence and authority of the officer who issued the Show Cause Notice were not affected by the Commissioner's involvement. The Court noted the legal provisions empowering certain officers to authorize arrests and issue Show Cause Notices. It also acknowledged a notification specifying procedures for representation before the High Court but concluded that the involvement of a Commissioner of Customs did not affect the authority of the adjudicating officer.

  • Classification of imported goods - Technical Grade Urea - Chemical Examiner’s report is correct or not - The High Court acknowledges the contention regarding the Foreign Trade Policy but refrains from intervening in the classification decision based on the laboratory findings. The High Court upholds the validity of the laboratory tests conducted by the authorities and underscores their importance in determining the classification of the imported goods. It dismisses the petitioner's challenge to the tests and affirms their role in decision-making.

  • Seeking amendment of shipping bills - inadvertent error in the Shipping bills - seeking to credit ROSCTL benefit amounts to the petitioner’s Customs E-Scrip Ledger - The High Court noted that the petitioner's intention to claim benefits under the RoSCTL Scheme was evident from the Shipping bills and other related documents, despite the inadvertent error in declaration. Drawing from judgments of the Madras High Court, the High Court concluded that such errors, if inadvertent, should not deprive exporters of entitled benefits.

  • Refund of Excess Customs Duty paid - principles of unjust enrichment - Following proceedings before the Settlement Commission, it was determined that the appellant had indeed overpaid, resulting in an excess amount of refund. The Tribunal upheld the appellant's right to claim the refund, considering the terms of the agreement with their overseas supplier, the treatment of the amount in their accounting records, and legal precedents supporting their case. - The Tribunal concluded that the appellant was entitled to the refund of the excess amount, as they had not passed on the duty burden and had treated it as receivable in their accounts.

  • Levy of Anti-dumping duty - The Tribunal observes that reflective glass was not explicitly mentioned in Notification No. 4/2009-Cus, which exempted certain types of glass from anti-dumping duty. As a result, the Tribunal concludes that since reflective glass was not listed for exemption, it remains subject to anti-dumping duty during the specified period.

  • Indian Laws

  • Maintainability of curative petition - restoration of arbitral award which had been set aside by the Division Bench of the High court on the ground that it suffered from patently illegality. - The Supreme Court found that invoking curative jurisdiction was justified to prevent a miscarriage of justice. It highlighted the circumstances under which curative petitions could be entertained, emphasizing cases where there is a gross miscarriage of justice or abuse of process. The Court reiterated that interference with arbitral awards should be minimal and only on grounds of patent illegality or perversity. It emphasized that an arbitral tribunal's decision should not be disturbed unless it is evident that a reasonable person could not have arrived at such a decision based on the evidence presented.

  • Dishonour of Cheque - issuance of statutory notice to proper person or not - acquittal of accused - The High Court noted a misunderstanding by the trial court regarding the management of the company by its directors and the legal implications thereof. The statutory notice was not properly issued to the company along with its director, leading to procedural discrepancies. Despite acknowledging errors in the trial court's judgment, the High Court upheld the acquittal based on procedural faults in issuing the statutory notice.

  • IBC

  • CIRP - Partnership Form - The court examined the definitions under the IBC and noted that it does not include partnership firms or their directors as corporate debtors. Rather, such cases fall under Part III of the IBC, which designates the Debts Recovery Tribunal as the adjudicating authority. The court highlighted amendments to the IBC regarding personal guarantors, specifying that they come under the Code's ambit. However, this addition did not extend to partnership firms or directors.

  • Interest on deposit - sale consideration amount deposited by the appellant - The Tribunal acknowledged the regulations stipulating that payments made after thirty days attract a 12% interest rate. However, it noted that the Liquidator’s hands were tied due to the NCLT’s restraining order, preventing the issuance of the Sale Certificate until specific approvals were obtained. Citing Supreme Court precedents, the Tribunal discussed the entitlement to interest and the principles of equity and restitution but ultimately noted that these did not apply under the circumstances where the Sale Certificate’s issuance was delayed by judicial intervention rather than administrative oversight.

  • CIRP - Corporate Guarantee and Liability - The Appellate Tribunal acknowledged that the company had issued corporate guarantees to financial institutions. Despite the guarantee not being invoked, the Tribunal emphasized that the liability of the corporate guarantor remains intact. It cited clauses from the Guarantee Deed emphasizing that the rights of lenders against the guarantor remain in force regardless of any arrangements between lenders and other guarantors.

  • Approval of the Repayment Plan submitted by the Personal Guarantor - Despite the RP's efforts to submit a repayment plan, it was ultimately rejected by the majority of creditors. Consequently, the Tribunal noted that creditors had the option to file for bankruptcy under Chapter IV, and the RP was relieved of their duties. However, the Tribunal ensured that the RP's approved fees and expenses were to be paid.

  • Withdrawal/modification of approved Resolution Plan - Section 31(1) of IBC - The Supreme Court addressed cross-appeals concerning the approval of a resolution plan under the Insolvency and Bankruptcy Code, 2016. It reiterated the legal position established in a previous judgment regarding the withdrawal or modification of a resolution plan post-approval by the Committee of Creditors. Additionally, the Court dismissed allegations of fraud and misinformation, emphasizing the adequacy of information provided to the resolution applicants. As a result, the Court set aside the impugned judgment and approved the resolution plan submitted by the successful resolution applicants.

  • Admissibility of section 9 application - The Appellant argued that the application under the IBC should not have been admitted due to the pendency of a civil suit. However, the Supreme Court held that the existence of a pending civil suit does not preclude the admission of an application under the IBC if there is a genuine dispute regarding the debt. They cited the principle established in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT], emphasizing that the adjudicating authority is only required to determine whether there is a plausible contention for further investigation. Ultimately, the Supreme Court dismissed the appeal, affirming the decision of the lower tribunals to admit the application under the IBC and initiate CIRP against the Corporate Debtor.

  • Amendment of section 7 application - time limitation - date of default - The Supreme Court addressed a case involving the correction of a date mentioned in a previous order and an amendment to a petition under the Insolvency and Bankruptcy Code (IBC) 2016. The respondent sought an amendment to the petition, asserting that despite an initial default, subsequent events prevented the petition from being barred by limitation. The National Company Law Appellate Tribunal (NCLAT) affirmed the order allowing the amendment but left the question of limitation open. The Supreme Court decided not to entertain the appeal, deferring all aspects regarding limitation to the NCLT.

  • Service Tax

  • SVLDRS - Benefit of the Amnesty Scheme opted - failure to make payment on account of technical glitch or not - Despite the appellant's assertion of technical glitches, an affidavit from the Assistant Director of GST and Central Excise indicated that there were no attempts by the appellant to make payments on the specified dates. - The High Court rejected the appellant's claim of technical glitches, emphasizing the appellant's awareness of the deadline and his failure to attempt payment within the extended period. It deemed the appellant ineligible for relief under the Amnesty Scheme.


Articles


Notifications


Circulars / Instructions / Orders


Case Laws:

  • GST

  • 2024 (4) TMI 620
  • 2024 (4) TMI 619
  • 2024 (4) TMI 618
  • 2024 (4) TMI 617
  • 2024 (4) TMI 616
  • 2024 (4) TMI 615
  • 2024 (4) TMI 614
  • 2024 (4) TMI 613
  • 2024 (4) TMI 612
  • 2024 (4) TMI 611
  • 2024 (4) TMI 610
  • 2024 (4) TMI 609
  • Income Tax

  • 2024 (4) TMI 608
  • 2024 (4) TMI 607
  • 2024 (4) TMI 606
  • 2024 (4) TMI 605
  • 2024 (4) TMI 604
  • 2024 (4) TMI 603
  • 2024 (4) TMI 602
  • 2024 (4) TMI 601
  • 2024 (4) TMI 599
  • 2024 (4) TMI 598
  • 2024 (4) TMI 597
  • 2024 (4) TMI 596
  • 2024 (4) TMI 595
  • 2024 (4) TMI 594
  • 2024 (4) TMI 593
  • 2024 (4) TMI 592
  • 2024 (4) TMI 591
  • 2024 (4) TMI 590
  • 2024 (4) TMI 589
  • 2024 (4) TMI 588
  • 2024 (4) TMI 587
  • 2024 (4) TMI 586
  • 2024 (4) TMI 585
  • 2024 (4) TMI 584
  • 2024 (4) TMI 583
  • 2024 (4) TMI 582
  • 2024 (4) TMI 581
  • 2024 (4) TMI 580
  • 2024 (4) TMI 579
  • Customs

  • 2024 (4) TMI 578
  • 2024 (4) TMI 577
  • 2024 (4) TMI 576
  • 2024 (4) TMI 575
  • 2024 (4) TMI 574
  • Insolvency & Bankruptcy

  • 2024 (4) TMI 573
  • 2024 (4) TMI 572
  • 2024 (4) TMI 571
  • 2024 (4) TMI 570
  • 2024 (4) TMI 569
  • 2024 (4) TMI 568
  • 2024 (4) TMI 567
  • 2024 (4) TMI 566
  • 2024 (4) TMI 565
  • 2024 (4) TMI 564
  • 2024 (4) TMI 563
  • 2024 (4) TMI 562
  • Service Tax

  • 2024 (4) TMI 561
  • 2024 (4) TMI 560
  • 2024 (4) TMI 559
  • 2024 (4) TMI 558
  • Indian Laws

  • 2024 (4) TMI 600
  • 2024 (4) TMI 557
  • 2024 (4) TMI 556
 

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