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Home e-Newsletters Index Year 2022 February Day 26 - Saturday

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TMI Tax Updates - e-Newsletter
February 26, 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:

    Principles of natural justice - petitioners have been summoned 20 times - The respondents shall issue norms as to how many times, such summons can be issued against the parties and for what purpose. Learned counsel for the respondents to inform this Court about compliance of this order on the next date - In view of the petitioners challenging the constitutional validity of Section 16(2)(c) of the Central Goods and Service Tax Act, 2017 and Maharashtra Goods and Service Tax Act, 2017, office is directed to issue notice upon the Attorney General for India and Advocate General for State of Maharashtra, returnable on 28th March 2022. - HC

  • GST:

    Summon Order - not arresting petitioners in pre-inquiry proceeding in pursuance of the summon - On the submissions of the learned counsel for the petitioner regarding denial of proper and legal representation at the time of Inquiry or recording of statement under Section 70 of the CGST Act, it is hereby directed that if the petitioner so wants, he may take a qualified person to help him in explaining the details. He shall not be detained in the office of the Commissioner, who is the summoning authority beyond the reasonable working hours.- HC

  • GST:

    Liability of GST - GST on notional rent - property of the partner used by the Partnership Firm to carry out the business by the firm at free of rent - GST is liable to be paid in respect of properties of the applicant rented out to the partnership firm to carry out the business of the firm even if it is free of rent as the activity is in furtherance of business and amounts to supply as per Section 7(1)(a) read with Schedule I of the CGST/TNGST Act, 2017. - AAR

  • GST:

    Levy of GST - pure services or not - supply of safe drinking water for public purpose by Chennai Water Desalination Plant Limited (CWDL) to Chennai Metropolitan Water Supply and Sewerage Board(CMWSSB) a Government Authority - Supply of desalinated water by the applicant to CMWSSB for distribution as safe drinking water to public falls under the entry at Sl.No.99 of Notification no.02/2017- Central Tax dated 28.06.2017 and attracts 'NIL' rate of GST. - Transaction of supply of safe drinking water by applicant to CMWSSB does not merit to be classified as 'services' and hence are not eligible for exemption under Sl.No.3 Of the Notification no.12/2017 dt. 28.06.2017. - AAR

  • GST:

    Classification of supply - supply or goods or supply of services - the activities rendered by the applicant to its members - amount collected by rotary is pooled together only for the sole purpose of charity and humanitarian activities for the most needed ones and requisite meeting and administration expenses without any profit motive - The applicant is liable to be registered under the GST Act, as they are providing taxable supplies. - AAR

  • GST:

    Exemption from GST - providing services of theme parks and intend to construct a building namely 'SUNDHA DARSHAN MUSEUM' near Sunda Mata Temple - The primary purpose of the said premises is making profit rather than to serve society or public at large. Being a partnership firm, the applicant has a motto to develop the nearby area of Sundha mata temple for earning profit by developing 'Sunha Darshan Museum'and amusement parks. Mere placing some new idols & sculptures in the said 'Sunha Darshan Museum' to exhibit story of sundha mata temple in the name of service to society, does not qualify as 'museum' due to its profit earning motto. - AAR

  • GST:

    Classification of supply - composite supply or not - naturally bundled with 'Construction Services' or not - recovery of the charges for 'the ancillary services' by builders, after completion certificate - 'the ancillary services' would not be considered as a 'composite supply' naturally bundled with 'Construction Services under Section 8 of CGST and RGST Act, 2017. The applicable rate of GST on 'the ancillary services' would be as per the SAC prescribed under Notification No. 11/2017 CT (R) dated 28.6.2017 and are liable to GST @ 18%. Further, the applicant has to pay GST on the entire consideration received as charges on account of 'the ancillary services', without any abatement. - AAR

  • GST:

    Levy of GST - providing educational related services - on gone through the section 13 of the agreement, we find that there is no establishment of term 'employment'. Hence, activity or transaction between service provider i.e. applicant and service receiver does not constitute employee-employer relation - thus the activity or transaction is not covered under entry no. 1 of the Schedule III of the act and resulted in a 'supply of service' as per Section 7 of the CGST Act, 2017 and tax will be leviable under section 9 of the CGST Act, 2017 and valuation thereof will be done as per section 15 of the CGST Act, 2017. - AAR

  • GST:

    Classification of services - Support services to exploration, mining or drilling of petroleum crude or natural gas or both - The activities of supply designing & engineering, installation, Commission of Project under EPC contract by the applicant shall attract GST @18% (9% CGST and 9% SGST) - AAR

  • Income Tax:

    Business expenditure u/s 37(1) - pharmaceutical companies’ gifting freebies to doctors, etc. - The incentives (or “freebies”) given by Apex, to the doctors, had a direct result of exposing the recipients to the odium of sanctions, leading to a ban on their practice of medicine. Those sanctions are mandated by law, as they are embodied in the code of conduct and ethics, which are normative, and have legally binding effect. The conceded participation of the assessee- i.e., the provider or donor- was plainly prohibited, as far as their receipt by the medical practitioners was concerned. That medical practitioners were forbidden from accepting such gifts, or “freebies” was no less a prohibition on the part of their giver, or donor, i.e., Apex. - Only its participation in what is plainly an action prohibited by law, precludes the assessee from claiming it as a deductible expenditure. - SC

  • Income Tax:

    Reopening of assessment u/s 147 - Fresh sanction under Section 151 - For a moment, even if accept Revenue’s contention that the present proceedings are continuation of the proceedings initiated by the Assessing Officer at New Delhi vide notice dated 22nd March 2013, the proceedings would be invalid since the notice issued by the Assessing Officer at New Delhi itself was invalid inasmuch as sanction of the appropriate authority as per Section 151 was not obtained before issuing the notice. - HC

  • Income Tax:

    Reopening of assessment u/s 147 - Rejection of objection put by Assessee - Assessing Officer instead of providing these documents simply dismissed petitioner’s request by saying it is purely an administrative matter and all correspondence have been made through system. Assessing Officer was duty bound to provide all the documents called for by petitioner and his reluctance to provide these documents only would make the court draw adverse inference against respondent. - The order impugned in this petition is quashed and set aside. The matter is remanded for denovo consideration. - HC

  • Income Tax:

    Penalty under Section 271(1)(c) - Undervaluation of closing stock - The case of furnishing of any inaccurate particulars of income is not apparent from the record itself neither the books of account has been rejected, nor any case of creating false evidence has been made by the Revenue. - we quash the impugned order of penalty - AT

  • Income Tax:

    Unexplained cash credit u/s 68 - Bogus share capital and share premium - Since, the present assessment year is 2008-09, there is no onus on the assessee to prove the source of source in this case. Hence, the AO’s act of drawing adverse inference in this regard is not at all sustainable. Furthermore, the adverse inference on account of share premium is also not sustainable as necessary amendment by way of insertion of section 56(2)(viib) of the Act was also brought into statute books from AY 2013-14 and the same is not at all applicable for the current assessment year. - AT

  • Income Tax:

    Special provision for computing profits and gains of business of plying, hiring or leasing goods carriages u/s 44AE - It is clear that sec. 44AE, a non obstante clause, represents a code in itself and, further, provides for exceptions thereto as well as a built-in mechanism to effectuate the same. The right to adopt a lower than the presumptive rate stands taken away by Finance Act, 1997 (s. 44AE(6)). - AT

  • Customs:

    Smuggling - Norephedrine - misdeclaration of goods exported - prohibited goods or not - Needless to say that the test report is the basis for holding that the goods exported are Norephedrine and prohibited goods. The entire case of the department is based upon the test report. Though the appellant has pointed out the discrepancies at the stage of replying to the Show Cause Notice itself, the department has not been able to explain the discrepancies. - AT

  • Indian Laws:

    Dishonor of Cheque - cognizance of offences - when a company is the payee of the cheque based on which a complaint is filed under Section 138 of N.I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Primafacie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient. - SC

  • Service Tax:

    Levy of service tax - market fee - mandi shulk - whether the appellant(s) being an Agricultural Produce Market Committee was/were excluded from tax liability on and after 01.07.2012? - The fact that, on and after 01.07.2012, such activity by the Market Committees is put in the Negative List, it can safely be said that under the 2006 circular, the Market Committees were not exempted from payment of service tax on such activities - it is required to be noted that it is not the case on behalf of the Market Committees that the activity of rent/lease on shop/land/platform as such cannot be said to be service. - SC

  • Service Tax:

    Demand of Interest on 50% of the service tax - when the service provider (appellant) has paid entire 50% of the amount towards service tax and the service Recipient also paid the balance 50% of the service tax in time directly to the Service Tax Department on the assumption that the reverse charge mechanism is applicable, and when the Department also re-credited the said 50% of the service tax from the service recipient's account to the service provider's (appellant's account) with effect from 28.02.2014, instead of giving effect to the same from the date, on which, original payment was made by the service recipient, it is not open to the Department to turn down and say that reverse charge mechanism is not applicable, thus, the appellant is liable to pay interest on the belated payment. - HC

  • Service Tax:

    Levy of penalty u/s 78 - entire Service Tax and interest paid before issuance of SCN - the appellant have not complied with the provision of section 73(3) and suppression of fact is clearly established against the appellant. Hence, they are not eligible to avail benefit under section 73(3). Accordingly, the Revenue has rightly issued the Show Cause Notice and the Adjudicating Authority has correctly imposed the penalty under section 78. - AT

  • Service Tax:

    Refund of duty paid - applicability of principles of unjust enrichment - Commissioner (Appeals) has committed an error by holding the refund to hit by unjust enrichment merely on presumptive basis. No relevant evidence at all been discussed by him while coming to the said conclusion. Rather, the relevant evidence as was considered by Original adjudicating authority has miserably been ignored by the Appellate Authority - the question of adjudication as framed stands decided in favour of the appellant - AT

  • Central Excise:

    Extended period of limitation - In fact in the present case the assessee has been proved to be incorrect in its belief. However to invoke larger period of limitation in terms of proviso to Section 11A of the Central Excise Act what is required is that the duty of excise is not levied or paid or has been short levied or short paid or erroneously refunded the reason of fraud, collusion or in willful misstatement or suppression of facts or contravention of any of the provisions of the act or the rules which intent to evade payment of duty. In absence of elements of fraud, collusion, willful misstatement, suppression of facts or intention to evade duty, larger period of limitation cannot be invoked. - HC

  • Central Excise:

    Valuation - Job work - inclusion of value of the scrap retained and sold by the appellants in the assessable value of the goods manufactured and cleared by the appellants on job work basis, in the assessable value - the inclusion of additional consideration should be restricted to the actual scrap generated and sold by the appellants. For the computation of the same, the issue needs to go back to the Commissioner, who shall recalculate the demand including only the value of actual scrap generated and sold by the appellants.- AT

  • Central Excise:

    Admissibility of credit on the TBA machine - The appellants claim that they had utilised the machine for manufacture of ‘Aqua Bailey’ though on trial basis and the same was not successful. - It is not the case of the department that the appellant used the capital goods exclusively in the manufacture of exempted products or in provision of exempted services. - credit cannot be denied - AT

  • VAT:

    Interpretation of statute - When the Entry in question specifically provides for exemption to the goods described as “Hank Yarn” without any ambiguity or qualification, its import cannot be restricted by describing it as being available only for the hank form of one raw material like cotton nor could it be restricted with reference to its user industry. - SC


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (2) TMI 1110
  • 2022 (2) TMI 1109
  • 2022 (2) TMI 1065
  • 2022 (2) TMI 1108
  • 2022 (2) TMI 1105
  • 2022 (2) TMI 1104
  • 2022 (2) TMI 1103
  • 2022 (2) TMI 1107
  • 2022 (2) TMI 1106
  • 2022 (2) TMI 1102
  • 2022 (2) TMI 1101
  • 2022 (2) TMI 1100
  • 2022 (2) TMI 1099
  • Income Tax

  • 2022 (2) TMI 1114
  • 2022 (2) TMI 1098
  • 2022 (2) TMI 1092
  • 2022 (2) TMI 1097
  • 2022 (2) TMI 1096
  • 2022 (2) TMI 1091
  • 2022 (2) TMI 1090
  • 2022 (2) TMI 1089
  • 2022 (2) TMI 1095
  • 2022 (2) TMI 1094
  • 2022 (2) TMI 1088
  • 2022 (2) TMI 1087
  • 2022 (2) TMI 1086
  • 2022 (2) TMI 1085
  • 2022 (2) TMI 1093
  • 2022 (2) TMI 1084
  • 2022 (2) TMI 1083
  • Customs

  • 2022 (2) TMI 1080
  • 2022 (2) TMI 1082
  • 2022 (2) TMI 1081
  • Insolvency & Bankruptcy

  • 2022 (2) TMI 1079
  • Service Tax

  • 2022 (2) TMI 1113
  • 2022 (2) TMI 1078
  • 2022 (2) TMI 1076
  • 2022 (2) TMI 1075
  • 2022 (2) TMI 1077
  • 2022 (2) TMI 1074
  • Central Excise

  • 2022 (2) TMI 1069
  • 2022 (2) TMI 1068
  • 2022 (2) TMI 1067
  • 2022 (2) TMI 1073
  • 2022 (2) TMI 1072
  • 2022 (2) TMI 1071
  • 2022 (2) TMI 1070
  • CST, VAT & Sales Tax

  • 2022 (2) TMI 1066
  • 2022 (2) TMI 1111
  • Indian Laws

  • 2022 (2) TMI 1112
 

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