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Home e-Newsletters Index Year 2022 April Day 8 - Friday

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TMI Tax Updates - e-Newsletter
April 8, 2022

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Demand of tax alongwith interest and penalty - absence of required documents at the stage of interception of the goods and physical verification - In view of the lack of enquiry and lack of reasonable doubt, the continued seizure and confiscation as also the demand of tax and penalty is based solely on presumptions and conjectures. While the mistake claimed by the petitioner gave rise to the valid suspicion with the revenue authorities inside State of U.P. as to the genuineness of the transaction as an inter-state sale claimed (at that stage orally), however, upon furnishing of the original tax invoices at the stage of the show cause notice itself, initial onus that rested on the assessee was discharged. - HC

  • It is settled law that if a public functionary acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. Harassment by public authorities is socially abhorring and legally impermissible which causes more serious injury to society. In modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention for compliance of order of this Court, linger on leaving the petitioner to run from one end to other with no result. Therefore, award of compensation for unauthorised, arbitrary and illegal detention of the truck of the petitioner by the respondent authorities would not only compensate the petitioner for loss suffered by him but it would also help in improving work culture and public confidence in rule of law. - HC

  • Cancellation of registration of petitioner - petitioner firm express their willingness to pay the defaulted tax amount - Although there may be an inherent power of the Court under Article 226 of the Constitution of India to use a discretion but at the same time when it is statutorily provided by the departmental authorities that the maximum permissible installments be 36 (thirty six), the Court ought not to randomly extend such installments beyond 36 (thirty six) in the guise of exercising discretionary power but at the same time, it is also noted that if further installments are not allowed to the petitioner firm, they would be unable to pay the tax due and it may result in a sustenance of the order of cancellation of their registration. If it is so, there would be an end of their business in the present form that they are undertaking and it would also be the end of the Department to have any tax from the petitioners in the form of the present business any further. - HC

  • Income Tax

  • Notice in name of the transferor or amalgamating company - corporate death of an entity upon amalgamation - Curable defect u/s 292B - Amalgamated company through its representatives participated in each proceedings - This Court notes and holds that whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. - in the facts of this case, the conduct of the assessee, commencing from the date the search took place, and before all forums, reflects that it consistently held itself out as the assessee. - SC

  • Reopening of assessment u/s 147 - It is apparent that the respondent has invoked the provisions of Section 150 of the IT Act for issuing the impugned notices. This invocation was in turn based on an order dated 16.01.2013 made by CIT (Appeals). This order dated 16.01.2013 contains no direction as contemplated by Section 150 of the IT Act. Even assuming that this order dated 16.01.2013 contains a finding affecting the petitioners, it is apparent that such a finding came to be recorded without granting the petitioners any opportunity of being heard. Such finding, therefore, was not only in breach of principles of natural justice and fair play, but also contrary to Explanation 3 to Section 153 of the IT Act and could not have formed the basis for invoking the provisions of Section 150 of the IT Act. - HC

  • Interest on refunds u/s 244A - Having availed the time for rectifying the defects and claiming interest for the defect rectification time is unavailable. Such an interpretation does not fit into the requirement of filing a return fully compliant with the order of assessment, levy of interest, refund etc. The period taken by the assessee for curing the defects cannot be excluded while calculating interest; then, for no fault of the Department, the Department is called upon to compensate by way of interest. - HC

  • Disallowance of deduction of commission expenses - Although a steep rise of an expenditure during a year would raise serious doubts as regards the genuineness of the claim for deduction of the same by the assessee, but then, as observed by us hereinabove, the allowability or not of the same has to be tested as per the mandate of Section 37 of the Act; and not on the touchstone of satisfaction of the “benefit test” as had been done by the A.O in the present case. - AT

  • Disallowance of interest u/s 36(1)(iii) - proof of sufficient cash generation to advance loans - CIT(A) deleted the impugned additions - Assessee is successful in establishing that there was sufficient cash generation to make the aforesaid investments. - In the present case, the loans have been advanced in furtherance of assessee’s business interest and the assessee has sufficient cash generation to fund those advances. - AT

  • Disallowance of expenditure claimed under the head "Business" - proof of commencement of business - the generation of actual business income was not an essential element to allow the business expenditure. - What is required to be seen is whether one of the essential activities for the carrying on of the business of the assessee company as a whole was or was not commenced. When a business is established and is ready to commence, then it can be said that business has been set-up. The business would be set-up when the necessary infrastructure was acquired by the assessee and the assessee started paying salaries and allowance of the experts. - AT

  • Exemption u/s 11 - Violation of provisions of Section 13(1 )(c) and 13(1)(d) - loans and advances to interested persons - We are of the considered view that the learned CIT appeal has been wrong interpretation of provisions of section 13(1)(d) and 13 (3) of the Act, qua the peculiar facts of the instant case. In our view, the appellant trust has violated the provisions of section 13(1)(c) and 13(1)(d) of the Act. Thus, the appellant is not entitled for exemption u/s 11 of the Act to that extent. - AT

  • Addition made by the AO by treating the agriculture income as income from other sources - The genuineness of the additional document filed by the assessee has nowhere been doubted. AO in his order has himself admitted the agriculture income per hectare, therefore we are of the view that the assessee should not be deprived of the benefit available to him merely on the reasoning that the assessee failed to furnish the correct information during the proceedings. Accordingly, we hold that income earned by the assessee from the agricultural activity. - AT

  • Income deemed to accrue or arise in India - Royalty receipt - All the equipments and machines relating to the service provided by the assessee are under its control and are outside India and the subscribers do not have any physical access to the equipment providing system service which means that the subscribers are only using the services provided by the assessee. - the subscriber fees received by the assessee do not fall within the ambit of royalty u/s 9(1)(vi) of the Act nor under Article 12 of the India – Singapore DTAA. - AT

  • Disallowance u/s 10(25) - Claim of interest income - A perusal of all these documents would reveal that the assessee has erroneously calculated the alleged interest income which is not supported by any documentary evidence. On the other hand, the interest income discernable from the LIC Certificate is of a lesser amount. Therefore, we deem it appropriate to remit this issue to the file of the Assessing Officer for a fresh adjudication. - AT

  • Addition under section 56(2)(viia) - aggregate FMV of the shares of IHPL and VDPL, exceeding the consideration added as Income from Other Sources - - The Rules in this regard contained in section 11UA are already reproduced by us earlier. The same clearly provide for taking the book value of shares as in the balance sheet for the computation. The same was amended by the Income Tax Rules 2017 with effect from 1.4.2018 where instead of book value, fair market value of shares is mentioned. The Act does not provide that this amendment is retrospective. It is clearly mentioned that this amendment is with effect from 1.4.2018. Hence, Assessing Officer’s adoption of fair market value for making the computation which is not in accordance with the extant provisions has rightly been deleted by the learned CIT(A). - AT

  • Undisclosed investment - Addition based on loose sheet found in search - if ₹ 10.10 crores is added in the hands of the assessee, as done in the impugned assessment, the project cost and the work-in-progress have to be enhanced by that amount, and consequently the profit would go down or the project would end up in loss and that the effect of addition made in the hands of the assessees firm as made in the assessment order would get neutralized/nullified over the period of the project. On this count also the addition made is not correct. - AT

  • Disallowance of foreign travelling expenses incurred by the Directors of the company to China, Germany and other countries - having regard to entire factual scenario and the nature of business assessee’s business i.e. being pharmaceutical company, we are of the view that impugned foreign travel expenses incurred by the assessee are genuine requirement and for business purpose, and therefore, the impugned addition is directed to be deleted. - AT

  • Customs

  • Interpretation of statute - Section 108 as well as Section 114(i) of the Customs Act, 1962 - smuggling - psychotropic substance - Alprazolam - fictitious and non-existing companies - scope of appeal u/s 130 of CA, 1962 - It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained on the confessional statement. - The statement made before the customs officials is not a statement recorded under Section 161 of the Code of Criminal Procedure, 1973 and, therefore, it can be said to be a material piece of evidence collected by the customs officials under Section 108 of the Customs Act. - HC

  • 100% EOU - validity of demand u/s 28A - Heading of Section 28A gives ‘power’ not to recover duties not levied or short levied as a result general practice, Section 28 carries the heading “recover of duties not levied or not paid or short levied or short paid or erroneously refunded” - It is found that the demand has been made under a wrong provision and hence the same has become not enforceable. - It is clear that the Customs Authorities lack jurisdiction - AT

  • Indian Laws

  • Dishonor of Cheque - drawer of the cheque versus authorised signatory - One can easily visualise the object of Section 138 of the Negotiable Instruments Act, 1881, will be defeated, If the proposition canvassed by the petitioner is held legally valid. Fraudsters will open the Bank Account in the name of Proprietor concern by one individual and another individual will be nominated as Authorised Signatory. Allow the cheque drawn by the authorised signatory gets bounced and pleads that he is only the drawer of the cheque, but not the person maintaining the account. - HC

  • Service Tax

  • Levy of Service Tax - rendering cleaning service mostly to non- commercial organizations, government hospitals, educational institutes - As the cleaning service has been exempt from payment of service tax in terms of the negative list to the Notification No. 25/2012- ST dated 20 June 2012, therefore, the appellant is not liable to pay service tax on cleaning services - If the same is excluded from the taxable service quantify by the Adjudicating Authority on the basis of gross value of services shown by the appellant in balance sheet, the appellant has paid service tax for supply of the para-medical services i.e. manpower recruitment and supply agency service. - AT

  • Central Excise

  • CENVAT Credit - inputs - goods which is used even not in the manufacture directly but even if it is used in relation to the manufacture and indirectly, the said goods qualify as inputs - Therefore, in the present case all the goods which are specialized goods used for storage and safety of the gold, these are considered to be inputs used in relation to the manufacture of the final product i.e. gold indirectly - credit allowed on all inputs. - AT


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (4) TMI 352
  • 2022 (4) TMI 351
  • 2022 (4) TMI 350
  • 2022 (4) TMI 349
  • 2022 (4) TMI 348
  • Income Tax

  • 2022 (4) TMI 347
  • 2022 (4) TMI 346
  • 2022 (4) TMI 345
  • 2022 (4) TMI 344
  • 2022 (4) TMI 343
  • 2022 (4) TMI 342
  • 2022 (4) TMI 341
  • 2022 (4) TMI 340
  • 2022 (4) TMI 339
  • 2022 (4) TMI 338
  • 2022 (4) TMI 337
  • 2022 (4) TMI 336
  • 2022 (4) TMI 335
  • 2022 (4) TMI 334
  • 2022 (4) TMI 333
  • 2022 (4) TMI 332
  • 2022 (4) TMI 331
  • 2022 (4) TMI 330
  • 2022 (4) TMI 329
  • 2022 (4) TMI 328
  • 2022 (4) TMI 327
  • 2022 (4) TMI 326
  • 2022 (4) TMI 325
  • 2022 (4) TMI 324
  • 2022 (4) TMI 323
  • 2022 (4) TMI 322
  • 2022 (4) TMI 321
  • 2022 (4) TMI 320
  • 2022 (4) TMI 319
  • 2022 (4) TMI 318
  • 2022 (4) TMI 317
  • Customs

  • 2022 (4) TMI 316
  • 2022 (4) TMI 315
  • 2022 (4) TMI 314
  • Corporate Laws

  • 2022 (4) TMI 313
  • 2022 (4) TMI 312
  • 2022 (4) TMI 311
  • 2022 (4) TMI 298
  • Insolvency & Bankruptcy

  • 2022 (4) TMI 310
  • 2022 (4) TMI 309
  • 2022 (4) TMI 308
  • Service Tax

  • 2022 (4) TMI 307
  • 2022 (4) TMI 306
  • 2022 (4) TMI 305
  • 2022 (4) TMI 304
  • 2022 (4) TMI 303
  • 2022 (4) TMI 302
  • Central Excise

  • 2022 (4) TMI 301
  • Indian Laws

  • 2022 (4) TMI 300
  • 2022 (4) TMI 299
 

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