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Home e-Newsletters Index Year 2023 April Day 3 - Monday

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TMI Tax Updates - e-Newsletter
April 3, 2023

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws PMLA Service Tax Central Excise CST, VAT & Sales Tax Indian Laws



Highlights / Catch Notes

    GST

  • Provisional attachment - It is not open for the respondent to attach the bank accounts of other persons on a mere assumption that the funds therein are owned by any taxable person - The attachment of bank accounts is a draconian step and such action can only be taken in case conditions specified in Section 83 of the Act, are fully satisfied - HC

  • Refund of unutilized input tax credit - zero rated supply of goods - Constitutional Validity of provision of Rule 89(4) (C) of the CGST Rules - the impugned Rule 89(4)(C) is arbitrary and unreasonable, in as much as the possibility of taking undue benefit by inflating the value of the zero-rated supply of goods, cannot be a ground to amend the Rule, which deserves to be declared invalid on this ground also. - HC

  • Levy of GST - sale of commercial super built up area on behalf of MoHUA, Government of India - the appellant is selling the commercial built-up space to the private entities and this activity cannot be treated as a function of Municipality, as envisaged under article 243W of the Constitution of India which provides powers, authority and responsibilities of the Municipalities. Moreover, the commercial built-up spaces are for the purpose of sale to individual buyers who will use them for their commercial gain and this by no stretch of imagination this can be termed as a facility meant for use of common public. - AAAR

  • Income Tax

  • Unexplained cash credit in the bank account u/s 68 - Addition on excess sales - there cannot be such abnormal jump in the sale all of sudden. - To avoid the possibility of revenue leakage instead of entire difference in sales the profit element should be taxed. Hence, we direct the assessing officer to treat 25% of profit on the excess sales identified by AO. - AT

  • MAT - inclusion of "transition amount" u/s. 115JB (2C) while computing the book profit - Zero Coupon OFCDs - There will not be any transition amount which requires any adjustment in the book profit as per section 115JB (2C) of the Act. It is important to note that as discussed herein above, the capital liability and financial liability are two different concepts and Ld Pr. CIT has confused with the above two concepts and treated the capital liability as disclosed by the assessee as part of Composite Income in the schedule to the Other Equity. - no adjustment is required in the book profit u/s 115 JB (2C) - AT

  • Fees for Technical Services - Reimbursement of salary and other related costs - the salaries of such seconded employees were deposited in their overseas bank accounts, which were reimbursed by the Indian entity on a cost-to-cost basis and the seconded employees were working solely under the control and supervision of the Indian entity, thus hold that the amounts paid by GIPL to the assessee with reference to seconded employees does not come within the 'FTS' or 'FIS' under the Act or under DTAA. - AT

  • Exemption u/s 11 - Assessee has violated section 11(2)(b) r.w.s. 11(5) - Only the relevant income falling within the mischief of section 13(1)(d) of the Act will lose the benefit of exemption under section 11 and 12 of the Act and the balance of the total income of the trust will remain eligible for the benefit of exemption under section 11 of the Act. - AT

  • Validity of the re-opening of the assessment - non-issuance of notice u/s. 143(2) - In the absence of such notice, it is presumed that AO did not issue any notice u/s. 143(2) of the Act, hence the assessment was framed without meeting the requirement of law. - assessment order quashed being bad in law - AT

  • Disallowance u/s. 40(a)(i) towards the salary cost reimbursed by assessee to AE on cost to cost basis - in the event, TDS has been deducted u/s. 192 of the Act, no disallowance can be made u/s. 40(a)(i). Section 40(a)(i) can be invoked only when there has been non-deduction of tax at source - AT

  • Revision u/s 263 by CIT - properties received as gift from brother - applicability of provisions of Section 56(2)(vii)(b) and 50C - the AO did not carry out the necessary enquiries/verification during the course of original assessment proceedings, we find no infirmity in the observations of the Principal CIT that the assessment order is erroneous and prejudicial to the interests of the Revenue. - AT

  • Transfer pricing (TP) adjustments - The method adopted by the TPO suffered from the defect of the comparing uncomparable chemicals, using an average variation between the ALP and the actual price in two different chemicals, using the same as the variation in the ALP of the ten different chemicals. - We are of the view that the CUP method suffered from multiple infirmities and was not a most appropriate method for the transactions pertaining to the year under consideration. - AT

  • Customs

  • Valuation of imported goods - Motorcycle and Alloy Wheels 18 inches & 19 inches - enhancement of value - As the re-determined amount was accepted by the customs house representative of the appellant, there was no necessity for the Assessing Officer to pass a speaking order. - AT

  • Classification of imported goods - imports of all parts of air-conditioner in CKD/SKD (except capacitors) - It is concluded that imported air-conditioner kits in CKD/SKD condition, as described above have acquired the essential characteristics of an air-conditioner and therefore, when presented together at the stage of assessment under common invoice and bill of entry would merit classification under Heading 8415 - AAR

  • Classification of import goods - Indra Smart Pro” EVSE (Electrical Voltage Supply Equipment) - It emerges that Heading 8537 squarely covers the device involved in this application for advance ruling. Under such circumstances, the device under consideration does not merit classification under Heading 8543. as suggested by the applicant, which is a residual entry and cannot take precedence over a specific heading - AAR

  • Corporate Law

  • Seeking restoration of name of the company in the Register of Companies (ROC) - A perusal of Section 10A as also Section 252(3) of the said Act would show that the delay ultimately is condonable upon the payment of monetary penalty in terms of Section 10A. Even the standards that have been stipulated for restoration of the company by the NCLT is if the NCLT feels it is just that the name ought to be restored or if the company was carrying on business and was in operation. - HC

  • Indian Laws

  • Dishonour of Cheque - guarantor's liability - The petitioner, being stood as a guarantee for the aforesaid two companies, was not liable to pay any amount to the respondent and nothing warranted for the petitioner to issue cheque for any enforceable debt in favour of the respondent herein. Therefore, the alleged cheque was not issued for any legally enforceable debt and the petitioner cannot be held to be liable for the offence punishable under Section 138 of the Negotiable Instruments Act. - HC

  • Dishonour of Cheque - cheque issued as security - Since factum with regard to advancement of loan to the tune of Rs. 1.00 lac stands established on record and same was never repaid, cheque issued as security, if any, could be well presented by the complainant before the bank concerned for encashment. - By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. - HC

  • Foreign Trade Policy 2023 announced - FTP 2023 is a dynamic and open ended Policy

  • Service Tax

  • Refund of Service Tax - principles of unjust enrichment - As per the work orders, service tax was to be borne by the appellant and the Commissioner (Appeals) has also found, as a fact, that the contract awarded by the Housing Board to the appellant mentions that service tax shall be borne by the contractor - Commissioner (Appeals) was, therefore, not justified in rejecting the refund claim of the appellant on the ground of unjust enrichment. - AT

  • Central Excise

  • Cash refund of cess credit - The "taking" of the input credit in respect of Education Cess and Secondary and Higher Education Cess in the Electronic Ledger after 2015, after the levy of Cess itself ceased and stopped, does not even permit it to be called an input CENVAT Credit and therefore, mere such accounting entry will not give any vested right to the Assessee to claim such transition and set off against such Output GST Liability after 01.07.2017 - Refund not allowed - AT

  • Interest on delayed refund - relevant date - order under challenge has wrongly restricted the entitlement of appellant for the interest on the refunded amount to the date w.e.f. the date of filing of appeal. The appellant in view of settled principles is held entitled for the interest on the refunded amount of Rs.50.00 Lakhs from the date of the respective deposit - AT


Articles


Notifications


Circulars / Instructions / Orders


Case Laws:

  • GST

  • 2023 (4) TMI 48
  • 2023 (4) TMI 47
  • 2023 (4) TMI 46
  • 2023 (4) TMI 45
  • 2023 (4) TMI 44
  • Income Tax

  • 2023 (4) TMI 43
  • 2023 (4) TMI 42
  • 2023 (4) TMI 41
  • 2023 (4) TMI 40
  • 2023 (4) TMI 39
  • 2023 (4) TMI 38
  • 2023 (4) TMI 37
  • 2023 (4) TMI 36
  • 2023 (4) TMI 35
  • 2023 (4) TMI 34
  • 2023 (4) TMI 33
  • 2023 (4) TMI 32
  • 2023 (4) TMI 31
  • 2023 (4) TMI 30
  • 2023 (4) TMI 29
  • 2023 (4) TMI 28
  • 2023 (4) TMI 27
  • 2023 (4) TMI 26
  • 2023 (4) TMI 25
  • 2023 (4) TMI 24
  • 2023 (4) TMI 23
  • 2023 (4) TMI 22
  • 2023 (4) TMI 21
  • 2023 (4) TMI 20
  • 2023 (4) TMI 19
  • 2023 (4) TMI 18
  • Customs

  • 2023 (4) TMI 17
  • 2023 (4) TMI 16
  • 2023 (4) TMI 15
  • Corporate Laws

  • 2023 (4) TMI 14
  • PMLA

  • 2023 (4) TMI 13
  • 2023 (4) TMI 12
  • 2023 (4) TMI 11
  • Service Tax

  • 2023 (4) TMI 10
  • 2023 (4) TMI 9
  • 2023 (4) TMI 8
  • 2023 (4) TMI 7
  • Central Excise

  • 2023 (4) TMI 6
  • 2023 (4) TMI 5
  • CST, VAT & Sales Tax

  • 2023 (4) TMI 4
  • 2023 (4) TMI 3
  • Indian Laws

  • 2023 (4) TMI 2
  • 2023 (4) TMI 1
 

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