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Home e-Newsletters Index Year 2021 March Day 19 - Friday

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TMI Tax Updates - e-Newsletter
March 19, 2021

Case Laws in this Newsletter:

GST Income Tax Benami Property Customs Corporate Laws Insolvency & Bankruptcy Service Tax Central Excise



Highlights / Catch Notes

    GST

  • Classification of services - services provided by main contractors - pure services or not - Project Development Service and Project Management Consultancy services (PMCS) provided by the main contractors to SUDA’ - Project Management Consultancy Services for PMAY - Such services would qualify as Pure Service (excluding works contract service or other composite supplies involving supply of any goods)” and accordingly exempt from the payment of GST - AAR

  • Classification of supply - supply of services or not - subsidized shared transport facility provided to employees in terms of employment contract through third party vendors - The activity cannot be considered as supply of service in the course of furtherance of business. Providing transport facility to employees is no where connected with the business of the applicant - AAR

  • Benefit of exemption from GST - Services provided under vocational training courses recognized by National Council for Vocational Training (NCVT) or Jaan Shikshan Sansthan (JSS) - Educational institution or not - only the course affiliated by the National Council for Vocational Training are exempt from payment of GST - AAR

  • Profiteering - restaurant service - reduction in the GST rate not passed - The profiteered amount is determined as ₹ 78,41,754/- as has been computed in Annexure-17 of the DGAP Report - Since the recipients of the benefit, as determined above are not identifiable, Respondent No. I is directed to deposit an amount of ₹ 78,41,754/- in two equal parts of ₹ 39,20,877/- each in the Central Consumer Welfare Fund and the Maharashtra State Consumer Welfare Fund - NAPA

  • Income Tax

  • Validity of the order of ITAT - Matter remitted back to the file of the Assessing Officer for reconsideration by Tribunal - Bogus LTCG - There was no material, which necessitated the remand of the case to the Assessing Officer and it is a clear case where the Tribunal had failed to exercise its jurisdiction in the manner known to law.Tribunal, being a last fact finding Authority, is under the legal obligation to record a correct finding of fact. - HC

  • TDS u/s 195 - amounts paid by the assessee to the non-resident computer software manufacturers / suppliers as consideration for the resale / use of computer software, is not payment of royalty for use of copyright in the computer software. Hence, the consideration paid to non-resident software manufactures / suppliers does not give rise to income taxable in India and was not liable for deduction of tax at source u/s 195 - AT

  • TP Adjustment - selection of MAM - CUP cannot be applied on basis of comparable uncontrolled transactions- internal or external- that are undertaken in different geographical markets as compared to the market in which the controlled transactions is undertaken.t is crystal clear that the assessee's transactions are with overseas FIIs and hence comparison with other overseas FIIs would alone be appropriate. The fact remains that domestic third party transactions are not comparable with the overseas FIIs on account of geographic differences. - AT

  • Disallowance of depreciation on Car - Although, the assessee could have made efforts to obtain a copy of the purchase invoice from the hypothecating bank and produced it before the Lower Authorities, all the same, it is our considered opinion that the assessee should not be penalized for his failure to produce the purchase invoice, specially, when the Department has in principle accepted the assessee’s claim of interest on car loan as well as claim of Car running expenditure. - AT

  • Method of accounting - taxation of an amount as income - It is not the case of the revenue that the income under these projects have not been offered to tax in subsequent years. No case of revenue leakage has been established before us. Therefore, the action of revenue in disturbing the consistent method of accounting being followed by the assessee could not be held to be justified. Hence, we delete the impugned additions and allow these grounds of appeal - AT

  • Unexplained Investment u/s 68 instead of u/s 69 - there is total lack of application of mind, the Assessing Officer had not formed the opinion objectively with reference to any material on record and is merely based on the surmises and conjectures. We fail to understand as to why the Assessing Officer, having rightly taken note of the correct legal position governing the credits in the bank account i.e. he had chosen to bring the same to tax u/s 68 of the Act instead of section 69 of the Act. This itself goes to show the mala-fides on the part of the Assessing Officer, perhaps he intends to assess to tax in the hands of the appellant under more vigorous the provisions of section 68 of the Act than provisions of section 69 - AT

  • Deemed dividend addition u/s 2(22)(e) - Provisions of Section 2(22)(e) relating to loan or advance can be deemed as dividend only to the extent of accumulated profit or so far as the loan is not reflected in the accounts, but in instance case the addition was made on the basis of the prior year amounts which was not at all discussed by the Assessing Officer as well as CIT(A) as to how the said amount was taken in respect of the current year account for making addition. - AT

  • Excess claim of depreciation on boilers - The finding of the ld.CIT(A) is not based on correct appreciation of the material facts, rather the ld.CIT(A) has misconstrued partial and incomplete documents available on the record. We do not have any hesitation in setting aside this finding. - assessee failed to prove the installation of high efficiency boiler on which depreciation at the rate of 80% could be claimed. - AT

  • Change in method of revenue recognition - Non recognizing income by changing the method - There is no valid explanation for claiming expenses related to the CAS services rendered by the Assessee when recognition of income therefrom is postponed. The change in the method of accounting was therefore not bonafide and was rightly rejected by the revenue authorities.We find no merit in the claim of the Assessee in this regard - AT

  • Customs

  • Refund claim - Principles of unjust enrichment - the proof that, the incidence of duty has not been passed on - State represents the people of the country. - No one can speak of the people being unjustly enriched - The doctrine of unjust enrichment is not applicable to the case of public sector undertakings - HC

  • Benefit of MEIS-Scheme - It is not case of conversion of shipping bills from one export promotion scheme - it is only a correction by a procedural lapse putting “Y” instead of “N” for claiming the benefit of the scheme - The rejection of the request for issuing NOC is not sustainable in law - AT

  • IBC

  • Reinstating CIRP - Failure of corporate debtor to replay as per the settlement agreement - essence of time in the Settlement Agreement - Appellant has not been able to make out a clear-cut case in his favor. The Settlement Agreement, as has been operated by both the parties, does not show that time was of essence in it. Moreover, the Corporate Debtor has paid the full and final settlement amount by January 2021 to the Operational Creditor. Therefore the term of the Settlement Agreement that provides for reinstatement or fresh filing of the application for initiating Corporate Insolvency Resolution Process for the Corporate Debtor is not triggered. - AT

  • Validity of Resolution Plan as approved - Expression fo Interest - application of a person who has not participated in CIRP - eligibility criteria for the prospective Resolution Applicants - Section 31(1) of the Code lays down in clear terms that for final approval of a Resolution Plan, the Adjudicating Authority has to be satisfied that the requirement of Sub-Section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an Adjudicating Authority has to be satisfied. - This Tribunal finds no reason to entertain this Application - Tri

  • Service Tax

  • Classification of services - Banking and other Financial Services or not - Since the basic function of the appellant is to construct the houses and then to sell it either by way of allotment or by way of hire purchase against receiving certain amounts whether in form of ASC charges or hire purchase charges, but the activity is specifically the activity of construction of complexes and as such said amount cannot be made liable to tax for rendering service as that of ‘Banking and Financial Services’ - AT

  • Refund of Service Tax - construction services provided by them to Haryana Housing Board - Haryana Housing Board has also filed refund claim which was entertained by the Revenue and the same has been granted and no appeal has been filed against the said order, therefore, on the principle of equity also requires that the appellant is entitled to claim the refund of the service which is exempt on which they have paid service tax. - AT

  • Central Excise

  • Principles of natural Justice - the order of Appellate Tribunal passed without dealing with any of the submissions made by the appellant - It is evident that the Tribunal has merely relied on the judgment of the Hon'ble Supreme Court in the case of DOABA STEEL ROLLING MILLS and has not even assigned any reason as to how the decision applies to the fact situation of the case - Thus, it is found that the order passed by the Tribunal is cryptic and suffers from the vice of non-application of mind. - HC

  • Continuation of Criminal Proceedings - matter is pending for adjudication - The proceedings initiated against these petitioners are kept in abeyance till the disposal of the adjudicatory proceedings for a period of one year - petitioners are directed to get it disposed off the appeal, which is pending before the adjudicatory authority, within a period of one year from the date of this order by taking steps immediately. If the same is not disposed of within the stipulated time of one year, the respondent is given liberty to proceed with the matter for criminal prosecution. - HC

  • Clandestine production and removal - shortage of goods - duty evasion - The reliance of third party documents while conforming demand against present appellant is observed to be unjustified and unreasonable. Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence. - AT

  • CENVAT Credit - input - HR coils - MS plates - HT strappings - HRSS plates - GI flat - Grate Plate - CI Bend - MS Boiler Plates - SS Plates - these items are part and parcel of various goods and has rightly been classified as inputs for fabrication of various capital goods as per Rule 2(k) of CENVAT Credit Rules, 2004 which in turn are used in the manufacture of finished goods and therefore are eligible for cenvat credit. - AT


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Case Laws:

  • GST

  • 2021 (3) TMI 708
  • 2021 (3) TMI 707
  • 2021 (3) TMI 706
  • 2021 (3) TMI 705
  • 2021 (3) TMI 704
  • 2021 (3) TMI 701
  • 2021 (3) TMI 689
  • 2021 (3) TMI 648
  • 2021 (3) TMI 645
  • Income Tax

  • 2021 (3) TMI 703
  • 2021 (3) TMI 702
  • 2021 (3) TMI 699
  • 2021 (3) TMI 694
  • 2021 (3) TMI 692
  • 2021 (3) TMI 691
  • 2021 (3) TMI 688
  • 2021 (3) TMI 687
  • 2021 (3) TMI 683
  • 2021 (3) TMI 682
  • 2021 (3) TMI 680
  • 2021 (3) TMI 679
  • 2021 (3) TMI 675
  • 2021 (3) TMI 674
  • 2021 (3) TMI 673
  • 2021 (3) TMI 672
  • 2021 (3) TMI 670
  • 2021 (3) TMI 669
  • 2021 (3) TMI 668
  • 2021 (3) TMI 664
  • 2021 (3) TMI 663
  • 2021 (3) TMI 662
  • 2021 (3) TMI 659
  • 2021 (3) TMI 658
  • 2021 (3) TMI 657
  • 2021 (3) TMI 656
  • 2021 (3) TMI 655
  • 2021 (3) TMI 654
  • 2021 (3) TMI 653
  • 2021 (3) TMI 652
  • 2021 (3) TMI 651
  • 2021 (3) TMI 650
  • 2021 (3) TMI 649
  • 2021 (3) TMI 644
  • Benami Property

  • 2021 (3) TMI 700
  • 2021 (3) TMI 697
  • Customs

  • 2021 (3) TMI 696
  • 2021 (3) TMI 690
  • 2021 (3) TMI 665
  • Corporate Laws

  • 2021 (3) TMI 661
  • Insolvency & Bankruptcy

  • 2021 (3) TMI 686
  • 2021 (3) TMI 685
  • 2021 (3) TMI 684
  • 2021 (3) TMI 667
  • 2021 (3) TMI 647
  • 2021 (3) TMI 646
  • Service Tax

  • 2021 (3) TMI 681
  • 2021 (3) TMI 676
  • 2021 (3) TMI 671
  • 2021 (3) TMI 666
  • Central Excise

  • 2021 (3) TMI 698
  • 2021 (3) TMI 695
  • 2021 (3) TMI 693
  • 2021 (3) TMI 678
  • 2021 (3) TMI 677
  • 2021 (3) TMI 660
 

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