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Home e-Newsletters Index Year 2024 March Day 19 - Tuesday

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TMI Tax Updates - e-Newsletter
March 19, 2024

Case Laws in this Newsletter:

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



Highlights / Catch Notes

  • GST:

    Dismissal of contempt petition - The appellant filed a contempt petition alleging non-compliance with the High Court's order. However, the contempt bench dismissed the petition, stating that there was no provision under the GST Act for deciding the representation. - The court, independent of the contempt bench's observation, found that no contempt was made out due to the resolution of the representation by the competent authority. As the appellant's remedy was to challenge the order, the contempt petition was dismissed with liberty for the appellant to pursue further legal recourse.

  • GST:

    Levy of penalty - Search and seizure operation at the petitioner's godown. - The Court held that invoking Section 129(3) in this instance was without jurisdiction. The provision, intended for regulating goods in transit, was misapplied to a stationary godown, a static location not covered under the said section's purview. This misapplication highlighted a significant procedural misstep, as the actions undertaken by the officers exceeded their jurisdictional boundaries set by the Act. - The Court criticized this deliberate mischaracterization, refraining from delving into the motives behind such conduct to avoid a lengthy process. However, it emphasized the accountability of the officers, recommending administrative review and appropriate disciplinary action.

  • GST:

    Penalty proceedings u/s 129(3) of UPGST Act - search and seizure is carried out at the godown - The High court, referring to a previous judgment, concluded that the penalty proceedings were initiated without proper jurisdiction and thus quashed the impugned orders.

  • GST:

    Doctrine of promissory estoppel - Benefit under incentive Scheme - Scenarios of new Acts replacing the VAT Act, ensuring entitlement despite the GST regime. - The High court found that the petitioner fulfilled conditions of the scheme and was entitled to benefits. Past disbursements under the scheme, including GST components, supported this entitlement. The respondent's refusal to disburse the rest of the amount was unjustified. - Clause 19.2 of the scheme was interpreted to cover scenarios where the VAT Act is replaced by any other Act, ensuring continued entitlement despite changes in taxation regimes. The court rejected the respondent's argument that the GST Act replaced multiple statutes, holding that only the VAT Act was specifically mentioned in Clause 19.2.

  • GST:

    Levy of interest u/s 50(3) - Wrong availment of Input of Tax Credit and reversal thereof - The court noted that the issue of levying interest under Section 50(3) of the Act for the wrongful availment and reversal of Input Tax Credit had been settled, as evidenced by the circular and various judgments cited. Additionally, the court considered the retrospective amendment in Section 50(3) of the Finance Act, 2022. - Matter remanded back to the adjudicating authority for fresh consideration in accordance with the law.

  • GST:

    Recovery notice - Validity of assessment orders - The High court observed that while personal hearings were offered to the petitioner, it was evident that the petitioner was not heard during the assessment process. Additionally, the assessing officer relied on internet-based information without affording the petitioner an opportunity to challenge or provide contrary evidence. Consequently, the court found the lack of proper opportunity for the petitioner to be heard as a procedural irregularity, warranting interference. - Matter restored back for fresh adjudication.

  • GST:

    Revocation of registration cancellation - The High court acknowledged the seriousness of cancellation consequences for the petitioner's business and considered a liberal approach necessary. Despite the expiration of the period prescribed under section 30 of the GST Act, the court granted permission to the petitioner to file an application for revocation, subject to payment of dues and penalties.

  • GST:

    The petitioner contested a demand raised against them u/s 74 of the GST Act for a substantial amount, claiming that the order was passed without affording them an opportunity of personal hearing, thus violating their rights under the principles of natural justice. - The High Court referred to previous judgments, including one stating that under Section 75(4) of the GST Act, it is mandatory to grant a personal hearing where any adverse decision is contemplated against the person chargeable with tax or penalty, even without a specific request for such hearing. The Court held that the authority must afford an opportunity of personal hearing before passing any adverse order, as clarified in previous judgments.

  • GST:

    Demand of GST - Validity of assessment orders - The petitioner contended that they provided all relevant documents, including those related to land transactions, during the assessment process. They argued that project details were submitted during rectification proceedings. - After examining the evidence and submissions, the court noted that the assessing officer had considered the petitioner's documents and entered findings based on such evidence. The court concluded that a reasonable opportunity was provided to the petitioner, and the assessment orders were not a result of non-application of mind. Therefore, the court found no grounds for interference in its discretionary jurisdiction.

  • GST:

    Rectification of errors in filing GST Returns - The case involved errors made by the petitioner in their GST returns for the period July 2017, initially by incorrectly reflecting the SGST tax component and subsequently by reversing ITC under IGST instead of SGST. The petitioner promptly notified the authorities about these errors and submitted a detailed reply to the show cause notice. The court, considering similar precedents and the challenges faced by taxpayers during the early stages of GST implementation, directed the authorities to permit the petitioner to rectify their GST returns, emphasizing the need for a flexible approach to address inadvertent errors.

  • GST:

    Condonation of delay in filing the appeal and non-payment of fee towards filing of appeal - delay of 920 days - The case revolved around an appeal filed against a ruling by the Authority for Advance Ruling regarding the exemption of a specific service under GST laws. However, the appeal was dismissed by the Appellate Authority primarily due to a significant delay in filing the appeal, which exceeded the statutory limit for condonation.

  • Income Tax:

    Exemption u/s 11 - whether the objects of the trust were charitable? - The High court found that the issue of interpretation of Section 11 was covered by previous rulings and did not raise substantial questions of law. - As for the restriction of denial of benefit under Section 11, the court agreed with the respondent's argument, stating that only income used for the benefit of prohibited persons should be denied exemption. - Regarding the applicability of the Bharat Diamond Bourse case, the court clarified that it did not specify whether the denial of benefit under Section 11 should apply to the entire income or only to diverted funds. - The court admitted the question regarding the eligibility of expenditure incurred on new objects for exemption under Section 11 for further consideration.

  • Income Tax:

    High court power / jurisdiction to condone the delay - delay in filing an application seeking special leave to appeal against an acquittal. - After thorough consideration, the High court concluded that there is indeed power to condone the delay in such cases. - The court emphasized the precedential authority of a Supreme Court judgment, stating that it is binding on all courts unless distinguished, overruled, or set aside. The argument that the Supreme Court decision was inadequately considered was rejected. - The court analyzed the provisions of the Criminal Procedure Code and the Limitation Act, particularly regarding their applicability in appeals against acquittal. It concluded that Section 5 of the Limitation Act can be availed in such appeals.

  • Income Tax:

    Requirement of 20% Deposit of Disputed Demand for Considering Stay Application - The High court clarified that the OMs do not mandate a 20% deposit as a precondition for granting stay against demand recovery. It was held that such an interpretation is misconceived and that the discretion to require a deposit, either more or less than 20%, depends on the facts of each case. The court directed the respondents to consider the petitioner's application for stay under Section 220(6) without the presumption of a mandatory 20% deposit.

  • Income Tax:

    Validity of Adjusting Disputed Tax Demand Against Refunds Without Considering Stay Application - The High court found this action arbitrary and unfair, emphasizing that the respondents erred by adjusting the demand without attending to the stay application. It was highlighted that such adjustments cannot proceed without proper consideration of the application for stay, and doing so is deemed arbitrary and in violation of the principles of fairness and legal procedure.

  • Income Tax:

    Capital gain - Valuation of the property sold by the assessee - reference to DVO - ITAT noted that the reference made by the AO to the VO was not in accordance with the relevant provisions of the Act. - The Tribunal analyzed the provisions of section 55A of the Act, both before and after the amendment effective from 01-07-2012. It determined that the amendment was not applicable to the relevant assessment year and, therefore, the reference made by the AO to the VO was not valid.

  • Income Tax:

    Disallowance of claim of interest expenses u/s. 57(iii) - The Assessing Officer (AO) had disallowed a portion of the interest expenses based on the difference between the interest charged by the appellant on loans given and the interest paid on loans taken. However, the ITAT found that since the appellant used interest-bearing funds to earn interest income, the disallowance of expenses exceeding the interest charged on loans given was not justified. - The Tribunal also criticized the AO's interpretation of the term "income," stating that as long as the expenses were incurred for the purpose of earning income, regardless of whether a profit was earned, they should be allowed as deductions under Section 57(iii) of the Act.

  • Income Tax:

    Deduction u/s 80P - interest income - The tribunal noted that section 80P(2)(a)(i) allows deduction for cooperative societies engaged in banking or providing credit facilities to members. - The tribunal distinguished the facts of the present case from the decision of the Supreme Court in Totgars Co-operative Sale Society Ltd. The tribunal observed that the income in question was derived from activities eligible for deduction under section 80P. - Citing judgments of the Andhra Pradesh High Court and a coordinate Bench of the Tribunal, the tribunal held that interest income derived from activities listed in section 80P(2)(a) qualifies for deduction under section 80P.

  • Income Tax:

    Accrual of income India - Service PE/ virtual service PE in India - computation of threshold date for constitution of service PE - The tribunal concluded that for AY 2020-21, the appellant did not constitute a Service PE in India, as the presence of employees in India did not exceed the 90-day threshold required for constituting a Service PE under the India-Singapore DTAA. For AY 2021-22, since no employees visited India, the appellant could not have constituted a Service PE. Furthermore, the tribunal found no basis for the constitution of a Virtual Service PE as claimed by the AO, given the absence of relevant provisions in the India-Singapore DTAA or substantial evidence to support such a claim.

  • Income Tax:

    Assessment u/s 153A - completed assessments to be interfered with by the A.O. while making the assessment u/s 153A - The Tribunal upheld the decision of the Ld. CIT(A) in deleting the addition. - The ITAT reiterated the principle that completed assessments can only be interfered with by the AO under Section 153A based on incriminating material found during the search. Since the revenue failed to demonstrate that the additions were made on such basis, the court found no reason to interfere with the order of the Ld. CIT(A).

  • Income Tax:

    Nature of land - capital gain on sale of land - exemption u/s 10(37) - assessee's agricultural land was compulsorily acquired by following entire procedure prescribed under Land Acquisition Act - character of acquisition - Revenue contested the CIT(A)'s acceptance of 1947 as the year of transfer instead of 19.05.2014 (date of final award). - The Tribunal held that the peculiar circumstances warranted consideration of the land's acquisition date as 1947 for the purpose of exemption under Section 10(37), emphasizing the continuous possession by the state and non-alteration in land's status due to delayed compensation. - The ITAT observed that the land's character and use as agricultural at the time of its original acquisition in 1947 were crucial, dismissing the relevance of its status immediately before the compensation award in 2014 for the purposes of Section 10(37).

  • Income Tax:

    Assessment u/s 153A - addition u/s 68 - The assessee contended that the additions were not based on any incriminating material found during the search. The Tribunal held that no addition could be made under Section 153A in the absence of incriminating material for the years where no assessment was pending. The court accepted this contention and deleted the additions. - The ITAT examined several additions and disallowances made by the assessing officer, including those related to cash deposits, unsecured loans, and depreciation on vehicles. In each instance, the court meticulously evaluated the submissions, documentary evidence, and legal positions before rendering its decisions, often in favor of the assessee by deleting unjustified additions.

  • Customs:

    ADD on Aluminium Road Wheels imported from China PR. - Notification No. 07/2024-Customs (ADD), issued by the Ministry of Finance, Department of Revenue on 15th March 2024, addresses the imposition of anti-dumping duties on imports of cast aluminium alloy wheels or alloy road wheels used in motor vehicles, originating from or exported by China PR. This measure, derived from a thorough review conducted by the designated authority, underscores the continued dumping of these goods into India at below-normal prices, causing injury to the domestic industry.

  • Customs:

    Exemption from the Social Welfare Surcharge (SWS) - The amendment made by Notification No. 20/2024-Customs adds a new item to the list under Serial No. 57 in the table of the original notification. This addition is item "(v) column (3) sub-item (c) of item (2) of S. No. 526A," - This change implies that EVs imported under of the Ministry of Heavy Industries' Scheme to promote manufacturing of electric passenger cars in India now enjoys exemption from the Social Welfare Surcharge (SWS)

  • Customs:

    Customs Duty concession to EVs imported under of the Ministry of Heavy Industries' Scheme - The introduction of a specific customs duty rate of 15% for EVs imported under the new scheme encourages the import and manufacturing of electric passenger cars in India. This aligns with India's goals for environmental sustainability and the promotion of cleaner, greener transportation alternatives. - The conditional exemption, bound by compliance with the 'Scheme to promote manufacturing of electric passenger cars in India', introduces a structured approach to support the domestic manufacturing of electric vehicles. By setting a deadline of 31st March 2031, it also indicates a transition period towards more sustainable transportation solutions.

  • Customs:

    Agreement or Arrangement on Cooperation and Mutual Administrative Assistance (CMAA) in Customs Matter of India and with other Countries - The Ministry of Finance, through Notification No. 23/2024 - Customs (N.T.), has expanded the scope of cooperation in customs matters by incorporating the Agreement with the Republic of Armenia into the existing framework. This step underscores India's commitment to enhancing collaboration with international partners for effective customs administration and enforcement.

  • Customs:

    Valuation of Goods - Contemporaneous Imports of camera stabilizer devices - identical/similar items with the same model numbers at higher and different unit prices - The Supreme Court observed that a comparative table of the imported goods showed them to be identical or similar to earlier imports, except for being labeled as an "unpopular brand." The Court noted the appellant's admission of minor differences in hardware and software but affirmed the finding that the goods were essentially the same. As such, the Court upheld the decision to discard the declared transaction value and impose penalties.

  • Customs:

    Confiscation of seized truck u/s 115(2) of the Customs Act, 1962 - levy of penalty - The case involved the seizure and subsequent confiscation of a vehicle allegedly involved in smuggling activities. The appellant, the owner of the vehicle, claimed innocence, stating that the driver loaded the goods without his knowledge. Despite contesting the allegations and highlighting financial hardship, the Adjudicating Authority imposed a redemption fine and penalty. The appellant appealed, arguing lack of evidence and financial strain. The CESTAT, while acknowledging the appellant's limited involvement and financial condition, upheld partial accountability and reduced the penalties imposed.

  • DGFT:

    Amendment in Import Policy Condition for Duck Meat - The newly revised policy introduces a more defined condition for the importation of premium duck meat. It now specifies that only 3-star and above operational hotels, as recognized by a notification issued by the Ministry of Tourism, Government of India, are eligible to import premium duck meat under the restricted category. The amendment aims to regulate the quality and control of premium duck meat entering the Indian market, presumably to ensure it meets specific standards and is utilized by establishments that can uphold these standards.

  • DGFT:

    Imposition of Minimum Import Price (MIP) - Temporary Measure - A Minimum Import Price of 3.5 US Dollars per Kilogram is set for the specified synthetic knitted fabric ITC(HS) Codes. This aims to regulate the import prices of these fabrics, potentially to protect the domestic industry from underpriced imports. - The changes are effective only until 15th September 2024, after which the policy reverts to its status prior to this notification, unless further amended.

  • Corporate Law:

    Seeking waiving off the payment of Court fees - economic hardship or other significant reasons - Refiling the Compensation Application against the order of the Competition Commission of India - The NCLAT found no such hardship or reason was presented that justified waiving the fee, despite the appellant's claim of being misled by their previous representative. - The NCLAT distinguished these cases from the present situation, noting that in those cases, the legal representatives' absence or default led to the proceedings' outcomes. In contrast, in the current case, the representative was present and actively participated, even though he was not authorized to practice law. Thus, the rationale of not penalizing the party for the representative's fault did not apply here as the representative's actions were not mere defaults or absences but involved active, albeit unauthorized, participation.

  • Indian Laws:

    Ex-parte ad-interim injunction against the appellants - Defamatory Article authored by Defendant Nos. 3-5 and published by Defendant Nos. 1 and 2 as stated in the present Suit are defamatory to the Plaintiff - The Court dismissed the appeal, finding the ex-parte ad-interim injunction justified based on prima facie evidence and the balance of convenience favoring the respondent. The Court noted the importance of procedural adherence in granting such injunctions, emphasizing that the initial order was not arbitrary and was within legal bounds. - The Court emphasized the distinction between freedom of speech and defamation, underscoring the necessity of responsible journalism. It concluded that the appellants had not provided sufficient justification to refute the claims of defamation and upheld the injunction.

  • Service Tax:

    Refund of service tax paid as sub-contractor - Rejection on the ground that Section 102 exempts services rendered to a Government, a local Authority or a Government Authority and does not exempt services rendered to a private company which in this case is M/s NBCC - The Tribunal interpreted Section 102 of the Finance Act, 1994, and held that the exemption applied to services provided to government entities, including educational institutions, regardless of whether the services were rendered directly or through subcontractors. The court emphasized that the nature of the service and the ultimate beneficiary, i.e., the government entity, determined the applicability of the exemption. - The CESTAT ruled in favor of the subcontractor, holding that they were entitled to the refund.

  • Service Tax:

    Reversal of CENVAT Credit - Exemption to SEZ Units - The Tribunal analyzed relevant legal provisions and found no restriction prohibiting the SEZ Unit from utilizing Cenvat credit of a non-SEZ Unit. It held that there was no statutory basis for denying such utilization. - The Tribunal noted that the sole basis for denying the Appellant the ability to utilize Cenvat credit was the view that the centralized registration appeared to be invalid due to differing invoicing series. However, it ruled that there was no statutory requirement for identical invoicing series under centralized registration. Thus, it found the basis for denial to be erroneous and without legal merit.

  • Service Tax:

    Levy of service tax - Export of services or not - amount has been received in Indian Currency - The tribunal concluded that the service provided by the appellant qualified as an export of service. It emphasized that the appellant acted as an agent for the foreign exporter and that the contract between the parties clearly specified commission rates in US dollars. Despite receiving payment in Indian Rupees, the tribunal deemed the service to be an export as it fulfilled the conditions under Rule 3(2)(b) of the Export of Service Rules, 2005.

  • Service Tax:

    Refund of service tax paid - entitlement for Cenvat credit of the service tax paid on the ocean freight on the reverse charge mechanism - rejection of refund on the ground that since the amount of service tax was paid on insistence of the audit party, there is suppression of fact - The Tribunal ruled that the allegation of suppression of fact was based on assumptions and presumptions, as there was no adjudication in a demand case. Therefore, it could not be conclusively established that there was suppression of fact in the payment of service tax on ocean freight.


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2024 (3) TMI 788
  • 2024 (3) TMI 787
  • 2024 (3) TMI 786
  • 2024 (3) TMI 785
  • 2024 (3) TMI 784
  • 2024 (3) TMI 783
  • 2024 (3) TMI 782
  • 2024 (3) TMI 781
  • 2024 (3) TMI 780
  • 2024 (3) TMI 779
  • 2024 (3) TMI 778
  • 2024 (3) TMI 777
  • 2024 (3) TMI 776
  • Income Tax

  • 2024 (3) TMI 772
  • 2024 (3) TMI 771
  • 2024 (3) TMI 770
  • 2024 (3) TMI 769
  • 2024 (3) TMI 768
  • 2024 (3) TMI 775
  • 2024 (3) TMI 767
  • 2024 (3) TMI 774
  • 2024 (3) TMI 773
  • 2024 (3) TMI 766
  • 2024 (3) TMI 765
  • Customs

  • 2024 (3) TMI 764
  • 2024 (3) TMI 763
  • 2024 (3) TMI 762
  • Corporate Laws

  • 2024 (3) TMI 761
  • Insolvency & Bankruptcy

  • 2024 (3) TMI 760
  • PMLA

  • 2024 (3) TMI 759
  • Service Tax

  • 2024 (3) TMI 758
  • 2024 (3) TMI 757
  • 2024 (3) TMI 756
  • 2024 (3) TMI 755
  • 2024 (3) TMI 754
  • Central Excise

  • 2024 (3) TMI 752
  • 2024 (3) TMI 751
  • 2024 (3) TMI 753
  • Indian Laws

  • 2024 (3) TMI 750
  • 2024 (3) TMI 749
 

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