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Home e-Newsletters Index Year 2022 April Day 28 - Thursday

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TMI Tax Updates - e-Newsletter
April 28, 2022

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Impleadment in personal capacity - GST officer issuing vague show cause notice and/or order - cancellation of GST registration of petitioner - Non-compliance of earlier order - the respondent no.2 proceeded to pass an order cancelling the registration. The order cancelling the registration on the face of it is as vague as anything. - Warning issued - henceforth if this court comes across any such vague order or show-cause notice duly signed by him, then that will be his last day in the office. - HC

  • Recovery of interest payable on delayed payment of tax - Since tax was paid by the petitioner belatedly, petitioner is liable to interest during the period default. There was no excuse for not paying the tax in time from its electronic cash register. Nothing precluded the petitioner from discharging the tax liability from its electronic credit - If there is a belated payment of tax declared in the returns filed, interest has to follow. - HC

  • Seeking grant of Bail - availment of fraudulent inward ITC - Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, this is found to be a fit case of bail. - HC

  • Benefit of exemption - It is evident that the appellant seeks ruling on a different set of facts which were not put forth before the LA. The appellant has not contested the basis of the ruling extended by LA and accepts that after receipt of the ruling by the LA, they have been now guided and rightly so that they are not to be required on the application of Entry 9C, which is a new ground not examined by the LA and therefore this forum cannot adduce any ruling on the same. The appellant has not contested the applicability of the entries 69 & 70 of the Notification, on the support of which, they had claimed exemption for registration before the LA. - AAAR

  • Income Tax

  • Disallowance under the head 'business loss / bad debts' - there was no material available to prove that the loss incurred by the appellant / assessee was for the purpose of acquiring the property at Coimbatore for expansion of its business and hence, the same was not treated as business loss / bad debts. - Such a finding rendered by the authorities below, based on the material evidence, does not require any interfere by this court. - HC

  • Additions u/s 2(22)(e) on account of deemed dividend - Accumulated profit - As per the provision of Explanation 2, all the profits of the company up to the date of distribution or payment under section 2(22)(e) of the Act shall be considered as accumulated profits. Thus, the provision of Explanation 2 to section 2(22) of the Act does not distinguish between the profit accumulated in the immediately preceding year and the current year profit, and takes within its ambit all the profits up to the date of payment. - AT

  • Transfer of the case u/s 127 - the order of the transfer of case u/s 127 was within the knowledge of the assessee during the course of assessment proceedings and still the assessee had chosen not to participate in the matter of jurisdiction of the AO to whom the case has been transferred. The assessee cannot be allowed latter to challenge the jurisdiction of the AO - AT

  • Short Term Capital Loss (on which STT was paid) set off against the Short Term Capital Gain (on which STT is not paid) - Section 70(2) of the Act does not make any further classification between the transactions where STT was paid and the transactions where STT was not paid. The emphasis of the Assessing Officer on the term “similar computation” also only refers to the computation as provided under section 48 to 55 of the Act. - AT

  • Penalty under Section 271D and under Section 271E - accepting/repayment of cash - The impromptu response of the purportedly uneducated assessee at the time of survey, in our view, requires to be seen in its natural perspective and requires to be given credence. The assessee has declared that the money was received from family members to meet the business exigencies. Having regard to the nature of business of the assessee and ground realities, such explanation appears plausible. - No penalty - AT

  • Customs

  • ECGS Scheme - Rule of verba chartarum fortius accipiuntur contra proferentem - Relevant date of despatch/shipment - The date of ‘onboard’ Bill of Lading is not applicable to the present facts as no letter of credit was executed, much less providing for application of such date. Therefore, ECGC could not have denied the appellant’s claim, even on a consideration the DGFT Guidelines. - To deny the appellant’s claim over an incorrect interpretation of an ambiguous term, that too with delay amounting to only one day, goes against such duties, especially given the fact that the appellant had transacted with the respondent on several previous occasions. - SC

  • Import of restricted item or not - Tyres - This needs to be properly explained by the petitioner. If the petitioner indeed operates a factory in Rajasthan, it is open for the petitioner to file a copy of the GST Registration of the factory and details of documents to substantiate that the petitioner had indeed manufactured the Rubber Crumbs and Granules and sold to various Contractors/statutory authorities engaged in laying of roads. These are the documents which the petitioner is required to produce before the authorities to substantiate that the imported goods do not fall within the purview of restrictions in the Foreign Trade Policy 2015-2020. This exercise has not been carried out. - HC

  • Import of prohibited item - second hand medical equipments - In the case on hand, it is observed that there is an expert opinion, who has reported that the goods imported were not E-waste or hazardous, which is not disputed. Further, since no other reason is given by the Adjudicating Authority to hold that the items at Table 6 of the Order-in-Original are prohibited, the said finding is not sustainable. In view of the above, therefore, the order of confiscation under Section 111(d) ibid is not sustainable. - AT

  • Jurisdiction - power of Directorate of Revenue Intelligence (DRI) to issue SCN - Learned counsel for the respondent submits that he is giving up on the question of competence of DRI to issue the SCN and will not rely on the decision of Apex court in the case of M/S CANON INDIA PRIVATE LIMITED - AT

  • Valuation of imported goods - the EXCEL sheets in the pen drive as well as the invoices recovered during the searches - Section 65B of the Evidence Act - There is nothing on record to show that the procedure prescribed under section 65B of the Evidence Act, section 3 of the Information Technology Act, 2000 or section 138C of the Customs Act were followed. Learned Departmental representative could not also produce anything on record to show that these were followed. Therefore, the pen-drive is inadmissible as evidence despite the vital information which it contained and which was relied upon by the Revenue. - AT

  • Refund of Customs Duty paid - principles of unjust enrichment - expenditure written off while creating the entry as Receivable in the Balance Sheet - As soon as a particular amount is charged to expenditure, it is deemed to have been recovered in the shape of the price of the goods. In the instant case, by creating an entry for receivables and thereafter, creating an entry for provision in the ledgers, the appellant has nullified these entries. Consequently, the entire amount of duty paid is passed on as an expenditure to the profit and loss account. Thus the appellant has failed to discharge the burden of unjust enrichment. - AT

  • DGFT

  • New online module for filing of application for recognition as Pre-Shipment Inspection Agency (PSIA), electronic issuance of Pre-shipment Inspection Certificates (PSICs) and electronic verification of authenticity of the PSICs with effect from 01.05.2022.

  • Indian Laws

  • Dishonor of Cheque - It is apparent from the record that the allegation made by respondent is with regard to theft of his cheque which is the subject-matter of complaint registered u/s 138 of NI Act by petitioner. Aforesaid modus operandi on the part of respondent reflects clear mala fide to escape from the liability of issuance of cheque by him and it is a clear abuse of process of Court and same could not be sustained in the eyes of law. - HC

  • IBC

  • Interpretation of Statute - Appointment of Arbitral Tribunal - whether mere filing of a proceeding under Section 7 of the Insolvency and Bankruptcy Code, 2016, would amount to any embargo on the Court considering an application under Section 11 of the Arbitration and Conciliation Act,1996, to appoint an arbitral tribunal? - proceedings in rem - HELD No - HC

  • SEBI

  • Listing Obligations and Disclosure Requirements - TRANSFER AND TRANSMISSION OF SECURITIES [See Regulation 40(7) and 61(4)] -Amended SCHEDULE - 07 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

  • Listing Obligations and Disclosure Requirements - Terms of non convertible debt securities and non convertible redeemable preference shares. - Amended Regulation 61 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

  • Listing Obligations and Disclosure Requirements- Transfer or transmission or transposition of securities - Amended Regulation 40 of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015

  • Custodian - Prohibition of assignment - Amended Regulation 15 of the Securities and Exchange Board of India (Custodian) Regulations, 1996

  • Custodian - Procedure and grant of certificate. - Amended Regulation 8 of the Securities and Exchange Board of India (Custodian) Regulations, 1996

  • Custodian - Consideration of application for grant of certificate - Amended Regulation 6 of the Securities and Exchange Board of India (Custodian) Regulations, 1996

  • Scope of "custodial services" expended to include "silver or silver related instruments" - Regulation 2 of the Securities and Exchange Board of India (Custodian) Regulations, 1996

  • Service Tax

  • Condonation of delay in filing appeal before the Commissioner (appeals) - since the statutory period specified for filing of appeal (2 months + 1 month) had expired long back in May, 2018 itself and the appeal came to be filed by the petitioner only on 10.01.2022, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the petitioner-assessee at all. The case law in cited by the petitioner is misplaced. - HC

  • Refund of amount deposited under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - refund sought on the premise that the withdrawal of the appeal filed by the Tax Department under Government Policy made Petitioners legally entitled for the refund of the amount since there are no dues - In short, the department cannot take disadvantage of their own wrong of in action of withdrawing appeal. In that case there was no reason for the Petitioners to apply under the scheme and consequential deposit of amount as per the declaration. - the Taxing Department cannot enrich itself by unauthorized collection of the amount which needs to be refunded - HC

  • VAT

  • Effect of omission of section 19(2)(v), the proviso and 19 (5) (c) - Scope of the Budget Speech - statement of objects and reasons - As already seen, the original provision along with the proviso was omitted and a new provision was substituted. The word “retrospective” would mean “to look back” or “to go back in time”. A curative provision is held to be effective from a date prior to which it was enacted and so, will have a retrospective effect. - the amendment to Section 19 (2) brought about in the year 2015 is held to be curative in nature. - HC

  • Input Tax Credit (ITC) - The position insofar as the right of the manufacturers to avail ITC is, it becomes an absolute right, once the inputs are used in the manufacture or processing of the goods within the State, the subsequent event of the manufactured goods being sold by way of inter-state/ intra-state sale would have no bearing nor does it result in imposing any limitation/restriction or whittle down the right to ITC earned in terms of Section 19(2)(ii) or 19(2)(v) of the TNVAT Act in the interregnum period. - HC

  • Input Tax Credit (ITC) - As rightly contended by the learned Additional Advocate General by placing reliance upon the settled proposition of law that ITC is only a concession, it is open to the State to impose restrictions or conditions for availing the ITC. In the present case, prior to the introduction of the proviso, every dealer who effected interstate sale availed ITC under section 19 (2) (v) and the State imposed a restriction on such availment by the proviso, which naturally is binding on the assessees. - HC


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (4) TMI 1243
  • 2022 (4) TMI 1242
  • 2022 (4) TMI 1241
  • 2022 (4) TMI 1240
  • 2022 (4) TMI 1239
  • 2022 (4) TMI 1238
  • 2022 (4) TMI 1237
  • 2022 (4) TMI 1236
  • Income Tax

  • 2022 (4) TMI 1235
  • 2022 (4) TMI 1234
  • 2022 (4) TMI 1233
  • 2022 (4) TMI 1232
  • 2022 (4) TMI 1231
  • 2022 (4) TMI 1230
  • 2022 (4) TMI 1229
  • 2022 (4) TMI 1228
  • 2022 (4) TMI 1227
  • 2022 (4) TMI 1226
  • 2022 (4) TMI 1225
  • 2022 (4) TMI 1224
  • 2022 (4) TMI 1223
  • 2022 (4) TMI 1222
  • 2022 (4) TMI 1221
  • 2022 (4) TMI 1220
  • 2022 (4) TMI 1200
  • 2022 (4) TMI 1199
  • Customs

  • 2022 (4) TMI 1219
  • 2022 (4) TMI 1218
  • 2022 (4) TMI 1217
  • 2022 (4) TMI 1216
  • 2022 (4) TMI 1215
  • 2022 (4) TMI 1214
  • 2022 (4) TMI 1213
  • Insolvency & Bankruptcy

  • 2022 (4) TMI 1212
  • Service Tax

  • 2022 (4) TMI 1211
  • 2022 (4) TMI 1210
  • 2022 (4) TMI 1209
  • 2022 (4) TMI 1208
  • 2022 (4) TMI 1207
  • Central Excise

  • 2022 (4) TMI 1206
  • 2022 (4) TMI 1205
  • CST, VAT & Sales Tax

  • 2022 (4) TMI 1204
  • 2022 (4) TMI 1203
  • 2022 (4) TMI 1202
  • Indian Laws

  • 2022 (4) TMI 1201
 

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