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Home e-Newsletters Index Year 2024 April Day 23 - Tuesday

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TMI Tax Updates - e-Newsletter
April 23, 2024

Case Laws in this Newsletter:

GST Income Tax Customs Insolvency & Bankruptcy Service Tax Central Excise CST, VAT & Sales Tax



Highlights / Catch Notes

    GST

  • Release of seized goods - The appellants argued that the seized goods should be returned as no notice was issued within six months of seizure, as stipulated by Section 67(7) of the Act. - The High Court observed that the time for issuance of notice can be extended for a further period not exceeding six months on sufficient cause being shown by the proper officer. - The court acknowledged previous representations made for the release of seized stock, indicating that the matter had been raised prior to the expiry of the statutory period. - It stated that considering the conduct of the appellants and the circumstances, they were not entitled to any relief, implying that failure to approach for release was not the determining factor in the decision.

  • Doctrine of Merger of High Court Decision with the Order of Supreme Court - The Jharkhand High Court, in its analysis, delved into the doctrine of merger, a pivotal concept in legal proceedings concerning appellate review. The doctrine posits that once an appellate court has reviewed a lower court's decision, the lower court's judgement is absorbed into the appellate decision. This concept was intricately discussed in relation to a case where the Supreme Court of India dismissed a Special Leave Petition (SLP) without granting leave, thereby leaving the original High Court decision intact and unmerged. This implies that despite the Supreme Court's dismissal, the original decision by the High Court stands on its own and is not overshadowed or replaced by the dismissal itself.

  • Scope and Interpretation of Contract - Seeking reimbursement of the GST paid by them for the procurement of raw materials, intermediary components etc. and the bought-out items dispatched directly from the sub-vendors to the work site - The court held in favor of the petitioner firms, stating that the respondents are obligated to reimburse the GST paid on both direct and indirect transactions. This decision was anchored on the premise that the introduction of GST, which occurred during the execution of the contracts, mandates such reimbursement under the updated contractual obligations.

  • Seeking cancellation of pre-arrest bail granted to the respondent - evasion of GST revenue - The High Court, after considering the arguments presented by both parties and referencing a decision by the Supreme Court, concluded that the anticipatory bail application was not maintainable. The Sessions Court had granted bail without properly considering the provisions of the law and the necessity for custodial interrogation. Therefore, the bail granted to the respondent deemed contrary to the law and cancelled by the High Court.

  • Validity of impugned order u/s 73 of the CGST Act - The case before the Calcutta High Court involved a challenge to an order issued under the CGST Act, wherein the petitioner alleged fraudulent manipulation of their taxpayer login credentials. Despite the serious criminal nature of the allegations, the Court held that such matters fell outside the ambit of constitutional writ jurisdiction under Article 226. It emphasized the availability of statutory appeal against the impugned order and dismissed the petitioner's plea, citing the lack of grounds to justify intervention by the writ court.

  • Constitutional Validity of Sections 2, 9, 12 and 18 of the Constitution (101st Amendment) Act, 2016 violating the basic structure of the Constitution of India - grounds raised are based on the constitution of a Goods and Services Tax Council (GST Council) - In its judgment, the High Court scrutinizes the petitioner's locus standi, emphasizing the necessity of demonstrating aggrievement in PILs. Despite the petitioner's assertion of public interest, the court finds that they lack standing, as they have not suffered any legal injury or prejudice resulting from the impugned provisions. Additionally, the court highlights the petitioner's absence of registration under GST enactments or involvement in commercial activities, further undermining their standing. - Ultimately, the High Court dismisses the writ petition, concluding that there is no basis to entertain it.

  • Validity of demand of GST raised by State authorities - For the same cause of action, the Central Authority has already initiated action - The petitioner contested the order on the grounds of prior proceedings initiated by the Central Authority and alleged lack of timely information provided to the State authorities. The Court found merit in the petitioner's argument regarding the invalidity of the Demand Order due to prior proceedings and dismissed the State authorities' claims of lack of information. Additionally, the Court rejected reliance on a circular mandate as sufficient justification for the State authorities' actions. Consequently, the High Court set aside/quashed the impugned Demand Order.

  • Classification of services - Licensing Services for The Right to Broadcast and Show Original Films, Sound Recordings, Radio and Television Programmes Etc - The AAAR upheld the original classification under SAC 999614. It reasoned that the appellant's focus was more on the exhibition (leasing out rights for a specific period) rather than outright licensing for reproduction and distribution (as defined under SAC 997332). The authority emphasized that a proper understanding of the appellant’s contractual agreements was crucial, which appeared to be lacking or inconsistent with their claims.

  • SEZ unit - requirement to pay tax under reverse charge mechanism (RCM) on specified services - the AAR concluded that the applicant, being an SEZ unit, is not required to pay GST under RCM for specified services availed from DTA suppliers. They ruled that the applicant can avail of the exemption from IGST under certain conditions, such as furnishing a Letter of Undertaking as specified in the relevant notification.

  • SEZ unit - Legal services - liability pay tax under reverse charge mechanism on services received from advocate - The applicant contended that various provisions and exemptions under the SEZ Act, 2005, and SEZ Rules, 2006, exempt them from certain taxes and allow for zero-rated supply of services. The Authority examined relevant provisions of the IGST Act, 2017, and considered clarifications provided by the Tax Research Unit, CBIC. They referred to Notification No. 37/2017-Central Tax, which allows for furnishing of LUT for procuring services without payment of integrated tax. Emphasizing that the recipient in SEZ is deemed the supplier for fulfilling conditions of the notification, the Authority for Advance Ruling (AAR) ruled in favor of the applicant, stating that they are not required to pay GST under RCM for specified services, provided they furnish a LUT or bond as specified.

  • Classification of services - activity of insulating of bare M.S. Pipes provided by the customers on job work basis by using PU Foam and PE Film/HDPE jackets owned by the applicant - The AAR confirmed that the process undertaken by the applicant qualifies as manufacturing under Section 2(72) of the CGST Act, 2017 - The AAR observed that since the inputs were owned by the applicant and not the customer, the AAR ruled that the services are correctly classified under Sr. No. 27 of heading 9989 of the notification, attracting a GST of 18%. - The AAR further discussed the definition of job work in the context of GST, affirming that while the applicant's activities met the broader definition of job work, the specific conditions of Sr. No. 26 (pertaining to goods owned by another registered person) were not met due to the ownership status of the inputs.

  • Exemption from GST - pure services being provided to a local authority (BBMP) - The Authority rules that the service of supplying teachers/lecturers to schools/colleges run by BBMP, on an outsourced basis, is exempted from GST. This exemption is granted under the category of pure services provided to a local authority by way of an activity related to promoting educational aspects, as per Notification 12/2017-Central Tax (Rate) dated 28.06.2017, as amended.

  • Exemption from GST - supply of services (subscription of Clinical Key) to the All India Institute of Medical Sciences (AIIMS) - Governmental Authority or not - The Advance Ruling Authority (AAR) determined that the subscription services provided to AIIMS do not qualify as 'supply of online educational journals or periodicals' as specified under the GST exemption provisions. Instead, they are more broadly classified as OIDAR services, which include a composite supply of various online medical resources. For the period up to September 30, 2023, and after October 1, 2023, AIIMS does not qualify as a non-taxable online recipient. Therefore, it is responsible for the GST liability as the importer of the services. The Applicant, being a foreign entity, is not liable to pay GST as the services are considered imported by AIIMS.

  • Income Tax

  • Validity of Faceless assessment u/s 144 r.w.s.144B - The High Court observed that the impugned order indeed failed to comply with the prescribed procedure under Section 144B of the Act. The absence of a proceeding shifting the assessment from the Central Assessment Circle to the regular assessment circle, as well as the failure to issue notices u/s 143(2) and 144B(1)(iii) of the Act, rendered the order invalid. The High Court observed that the combination of show cause notice and draft assessment order into a single document was procedurally incorrect. The court referenced a previous ruling that such a combination was impermissible, undermining the statutory framework designed to ensure transparency and accountability in assessments.

  • Validity of reopening of assessment u/s 147 - shorter period to reply to notice - The High Court acknowledged the petitioner's argument regarding the limited time provided for response. Considering the petitioner's status as a Public Trust running a school, the Court deemed it appropriate to grant an opportunity for a reply to the notice. - The Court, without expressing an opinion on the merits, quashed the impugned order and remanded the matter for fresh consideration.

  • Penalty u/s 271(1)(c) - The Appellate Tribunal observed that the appellant, during reassessment proceedings, had filed their return of income but failed to provide sufficient documentation to substantiate claimed expenses. Notably, the assessing officer disallowed 50% of the claimed expenses, but did not specifically charge the appellant with concealing income or furnishing inaccurate particulars in the assessment order. In the subsequent penalty order, the assessing officer invoked twin charges without clear evidence to support them. Considering the lack of specific charges and evidence, the Tribunal directed the assessing officer to delete the penalty.

  • Reopening of assessment v/s assessment u/s 153C - The Appellate Tribunal acknowledged the argument presented by the appellant and emphasized the importance of applying Section 153C when incriminating material pertaining to a person other than the searched party is found. Citing relevant judicial precedents, including decisions from the Supreme Court and High Courts, the Tribunal concluded that the AO should have initiated proceedings under Section 153C instead of Section 147. As the AO failed to present any additional information beyond the seized documents, the Tribunal deemed the assessment order void-ab-initio and upheld the appellant's contention regarding the invalidity of the notice issued under Section 148.

  • Enhancement made by the Ld. CIT(A) u/s 251(1) r.w.s. 56(2) (viib) - AO substituted fair market value determined by the assessee through his own valuation - Assessees have submitted the Valuation Report duly signed by the auditor by following NAV/DCF Method as required under Rule 11UA(2) of the Rules - The Tribunal disagreed with this decision, highlighting that the assessee had provided a valuation report as per the prescribed method (Discounted Cash Flow Method under Rule 11UA(2)(b)). The Tribunal found that the lower authorities had inappropriately rejected this valuation report without providing a basis for doing so.

  • Addition towards difference between the rental income received by the assessee from M/s.CFD, a partnership firm and rental income received by the partnership firm, M/s.CFD from three tenants - The tribunal sided with the trust, ruling that the Assessing Officer erred in attributing additional rental income to the trust, as the sub-leases were based on substantial enhancements made by the lessee, justifying higher rents from sub-tenants.

  • Disallowance of set off of Loss - sale of equity shares (STT) - short-term capital gains (STCG) on sale of derivatives and short-term capital loss (STCL) - The Tribunal examined various judicial pronouncements and held that under section 70(2) of the Act, STCL arising from any asset can be set off against STCG arising from any other asset under a similar computation, regardless of the differential tax rates. It emphasized that the computation in both cases is made under the same provisions, allowing for such set-off. Consequently, the Tribunal allowed the appeal of the assessee, affirming their right to set off STCL against STCG.

  • Customs

  • Adjudication of SCN that was kept in call book for 14 years - The applicant claimed that the show-cause notice had been kept in the call book for 14 years and later revived, leading to an adverse order without considering their submissions. However, the court found no evidence to support this claim and upheld its previous decision, dismissing the application.

  • Violation of importing restricted goods - Import of Litebee wing-Nano Drone Components kits - Re-export of goods - The Tribunal examined the regulations governing the import of drones, particularly highlighting restrictions and requirements imposed by DGFT notifications. It concluded that while import of drones for educational purposes was not outrightly prohibited, certain conditions and approvals were necessary, which the appellant did not meet. As a result, the Tribunal upheld the confiscation of the drone but allowed redemption for re-export to Qatar due to the delay in proceedings.

  • Classification of imported goods - children building/constructable robot toys in CKD condition with individual box packing and are electronic toys - drones - Teaching Aid's in schools - The Appellate Tribunal analyzed the nature and intended use of the imported items. It determined that the goods in question were indeed imported for educational purposes, as evidenced by agreements with educational institutions. Consequently, the Tribunal concluded that the goods should be classified under CTH 9023, as declared by the importer, rather than under the category of toys (CTH 9503) as held by the adjudication authority.

  • Levy of penalty - Abetment in Fraudulent export - The judgment by the Appellate Tribunal of CESTAT Bangalore addressed a case of fraudulent export and misdeclaration of goods. Investigations revealed a pattern of misdeclaration by the exporter, involving inferior quality rags instead of declared ladies nightwear. The appellants, involved in arranging containers and customs clearance, were found complicit in facilitating these fraudulent exports. Despite their claims of innocence, their actions violated customs regulations and aided in the fraudulent scheme. The tribunal upheld penalties under Section 114 of the Customs Act, albeit reducing them considering the cancellation of DEPB licenses and penalties on the exporter.

  • Classification of imported goods - Imports aluminium shelving for Mushroom - The Appellate Tribunal ruled in favor of the appellant. They determined that the imported goods, particularly the aluminium shelving, were integral to mushroom cultivation mechanization and qualified as mechanical devices for agriculture. As a result, the Tribunal set aside the department's classification and allowed the appellant's claim of duty exemption.

  • Revocation of the Customs Broker Licence - The appellant argued that the license had already been revoked once and reinstated by the Tribunal, making the subsequent revocation unjustified. The Department alleged violations under various provisions of the Customs Act and Customs Brokers Licensing Regulations. However, the Tribunal found no merit in the Department's allegations, highlighting discrepancies in the application of relevant provisions and logistical challenges at the Land Customs Station. Ultimately, the Tribunal ruled in favor of the appellant, setting aside the impugned order and restoring the appellant's license.

  • IBC

  • Release of assets (machines) seized by the Customs Authorities before initiation of CIRP - The tribunal found that the goods were lawfully confiscated under the Customs Act before the initiation of the CIRP. Therefore, the goods were no longer the property of the Corporate Debtor by the time the RP sought their release. It was noted that the order for confiscation was made after a proper show-cause notice and was not contested by the Corporate Debtor at that time. - The tribunal clarified that the ownership of the confiscated goods vested with the government immediately upon confiscation, irrespective of whether the redemption fine was paid. The option to redeem the goods by paying the fine was a separate matter that did not affect the fundamental status of ownership transfer upon confiscation.

  • Bench Reconstitution and Order Pronouncement - Whether an order reserved by a bench could be pronounced by a reconstituted bench without considering a subsequent application that called for a re-hearing based on new developments. - According to Tribunal directives, a judgment reserved should ideally be pronounced by the same bench unless re-hearing is warranted by substantial subsequent developments. Ultimately, the Appellate Tribunal set aside the order pronounced by the reconstituted bench and remanded the case back to the regular bench for a fresh hearing. It emphasized that the judicial process must consider all relevant developments to ensure fair adjudication.

  • Admission of Section 7 Application of the Financial Creditor - Corporate Debtor / Guarantor failed to fulfil obligations - The tribunal noted the specifics of the guarantee, where the corporate guarantor's liability was capped to the value of the collateral lands. However, it pointed out that the guarantee remains in effect and binds the guarantor to fulfill the obligations if the principal borrower defaults. Ultimately, the tribunal found no legal infirmity in the decision of the lower tribunal (NCLT) to admit the CIRP application against the corporate guarantor.

  • Rejection of application by the impugned order - Secured creditors or not - NOIDA Authority - The tribunal, after considering submissions and legal precedents, concluded that the Appellant should be recognized as secured operational creditors.

  • Service Tax

  • Levy of service tax - Amounts received by the appellant from Priyadarshini Gas Seva [PGS] - The Tribunal notes that PGS is a unit of the appellant, and it's not uncommon for units to transfer profits to their parent company. The mere transfer of funds does not inherently indicate consideration for a service provided. The Tribunal highlights that the Commissioner's finding, suggesting that the negotiation with Indian Oil Company (IOC) for PGS distributorship constituted a service, is flawed. The negotiation, which occurred in 1984-1986 when there was no service tax levy, cannot retroactively be considered a taxable service. - Ultimately, the Tribunal sets aside the demand under this head, affirming that the negotiation conducted by the parent company on behalf of its unit does not constitute a taxable service.

  • Demand of differential service tax - Valuation - non-inclusion on reimbursable expenses - pure agent services - The Appellate Tribunal analyzed the agreements and legal provisions, including previous tribunal decisions and the Service Tax (Determination of Value) Rules, 2006. It concluded that the appellant indeed acted as a pure agent and that reimbursable expenses should not be considered part of taxable services. Consequently, the Tribunal set aside the impugned order, allowing the appeal with consequential relief.

  • Non-payment of Service Tax - works contract services - amounts obtained from Form 26 AS (Income Tax Department) for the Financial Year 2015-16 - The Tribunal, after considering the submissions of both parties and examining relevant notifications and circulars, concluded that the demand for service tax on a specific amount received by the appellant from a government authority for works contract services was unjustified. The Tribunal cited exemptions applicable to services provided to government entities, ultimately setting aside the order under challenge and allowing the appeal.

  • VAT

  • Seeking grant of anticipatory bail - bailable offence or not - failure to make payment of tax - wilful attempt to evade any tax or payment of any tax - The applicant argued that the primary issue was tax evasion under MVAT, citing ongoing insolvency proceedings against a debtor as the reason for non-payment of taxes. - The High Court acknowledged the serious allegations of tax evasion and misappropriation, noting the substantial amount involved and the importance of custodial interrogation for a thorough investigation. - After analyzing relevant legal provisions and precedent cases, the Court concluded that the defendant could be prosecuted under both MVAT and IPC for the same set of facts. It cited Section 26 of the General Clauses Act to support this interpretation.

  • Recovery of alleged outstanding dues of unpaid tax amounts - Section 29 of APVAT Act, 2005 - Appeal was dismissed for default due to the petitioner's repeated non-appearance despite being granted several adjournments. - In the interest of justice, the High Court directed the appellate authority to consider and decide the petitioner’s application for restoration within a specified period of six weeks from the date of the court order. Additionally, if the appeal is restored, the authority is instructed to decide the appeal expeditiously.

  • Entitlement for issuance of C-Forms post the introduction of G.S.T. regime for natural gas - The High court extensively reviewed the applicability of C-Forms in the post-GST regime and reaffirmed that despite the GST implementation, certain transactions still fell under the purview of the CST Act due to the continued definition of some goods like natural gas. It was determined that the petitioner was entitled to the concessional rate of 2% if it provided the necessary C-Forms. The court also noted the confusion and transitional issues between the VAT and GST systems, which affected the submission of these forms. The court ultimately ruled in favor of the petitioner, directing the tax authorities to process the refund based on the C-Forms submitted.

  • Benefit of Exemption from CST - stock transfer or inter-state sale - The petitioner argued for the exemption of tax under Section 6A of the CST Act, contending that the movement constituted stock transfer. However, the respondent argued that the goods were tailor-made for specific customers, invoiced directly to them, and thus constituted inter-state sales taxable under Section 3(a) of the CST Act. The High Court upheld the respondent's argument, emphasizing the tailor-made nature of the goods and the direct invoicing to customers. Additionally, the court dismissed the petitioner's argument regarding the prospective applicability of Section 6A(3), affirming the jurisdiction and authority for revision under Section 9(2) of the CST Act.


Articles


News


Case Laws:

  • GST

  • 2024 (4) TMI 856
  • 2024 (4) TMI 855
  • 2024 (4) TMI 854
  • 2024 (4) TMI 853
  • 2024 (4) TMI 852
  • 2024 (4) TMI 851
  • 2024 (4) TMI 850
  • 2024 (4) TMI 849
  • 2024 (4) TMI 848
  • 2024 (4) TMI 847
  • 2024 (4) TMI 846
  • 2024 (4) TMI 845
  • 2024 (4) TMI 844
  • 2024 (4) TMI 843
  • 2024 (4) TMI 842
  • 2024 (4) TMI 841
  • Income Tax

  • 2024 (4) TMI 840
  • 2024 (4) TMI 839
  • 2024 (4) TMI 838
  • 2024 (4) TMI 837
  • 2024 (4) TMI 836
  • 2024 (4) TMI 835
  • 2024 (4) TMI 834
  • Customs

  • 2024 (4) TMI 833
  • 2024 (4) TMI 832
  • 2024 (4) TMI 831
  • 2024 (4) TMI 830
  • 2024 (4) TMI 829
  • Insolvency & Bankruptcy

  • 2024 (4) TMI 828
  • 2024 (4) TMI 827
  • 2024 (4) TMI 826
  • 2024 (4) TMI 825
  • Service Tax

  • 2024 (4) TMI 824
  • 2024 (4) TMI 823
  • 2024 (4) TMI 822
  • 2024 (4) TMI 821
  • 2024 (4) TMI 820
  • Central Excise

  • 2024 (4) TMI 819
  • 2024 (4) TMI 818
  • 2024 (4) TMI 817
  • 2024 (4) TMI 816
  • CST, VAT & Sales Tax

  • 2024 (4) TMI 815
  • 2024 (4) TMI 814
  • 2024 (4) TMI 813
  • 2024 (4) TMI 812
 

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