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Home e-Newsletters Index Year 2023 June Day 9 - Friday

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TMI Tax Updates - e-Newsletter
June 9, 2023

Case Laws in this Newsletter:

GST Income Tax Customs Securities / SEBI Insolvency & Bankruptcy Service Tax Central Excise CST, VAT & Sales Tax Indian Laws



Highlights / Catch Notes

  • GST:

    Validity of issuance of show cause notice on Form GST DRC-01 in place of Form GST DRC-01A - in the context of the present facts, that objection appears to be hyper technical and not real. - No such firm demand has been created. Recitals contained in the notice clearly indicate, at present, the petitioner has been required to show cause, why such demand may not be created. Mere mention of wrong form number, without anything more, may not be fatal to the proceedings. - HC

  • GST:

    Levy of penalty at the rate of 200% - expired E-way bill - it is appropriate, that the appellate authority look into the matter, specifically the genuineness of the explanation put forth by the petitioner in regard to the on-road delay allegedly suffered by the consignment, and take a considered view, after taking into account all applicable facts and circumstances as well as the Circulars issued, as applicable and in accordance with law. - HC

  • Income Tax:

    Condonation of delay in filing refund claim and claim of carry forward of losses - Power delegated to PCCIT, PCIT, CCIT, CIT based on monetary limits for acceptance or rejection of application - Directions issued u/s 119(2)(b) of the Income-tax Act, 1961 - Circular

  • Income Tax:

    Reopening of assessment - notice u/s 148A(b) to wrong Email ID - notices are sent to (i) email ids that are no longer in use (ii) email ids of staff/accountants/chartered accountants who have created the profile of the assessee/file the income tax return and who are no longer in the employ/service of the assessee - The petitioner has not presented the facts in proper colour and has sought to take advantage of a technical mistake in the impugned order. This is wholly unappreciated and deprecated. - Petition dismissed with cost of Rs. One Lakh - HC

  • Income Tax:

    Assessment u/s 153C - necessity of recording satisfaction by AO of the searched person - ITAT followed various judgments of including the SC, HC and tribunal itself to hold that the notice issued by the AO u/s 153-C of the IT Act deserves to be quashed and accordingly had proceeded to quash the assessment orders framed by the AO u/s 153-C read with Section 143(3) of the Income Tax Act. Accordingly, the additional ground was allowed in all the seven years. - Order of ITAT sustained - HC

  • Income Tax:

    Prosecution proceedings u/s 276CC and 277 - variation in the tax payments - The conduct of the petitioners in filing revised returns immediately after noticing error on their part indicate that it was a case of delayed payment of tax or deferred payment. - The petitioners have substantiated their contention by giving cogent and convincing reasons for submitting original tax returns with some errors. - Such delay in the payment will not amount to willful attempt to evade tax. - HC

  • Income Tax:

    Denial of claim of Foreign Tax Credit (FTC) - Delay in filing of ITR - Rule 128 is only a procedural provision and not a mandatory provision and cannot override the provisions of the Act or the DTAA - Delay in filing the return and Form No.67 (i.e., beyond period under section 139(1) of the Act) is not fatal to the claim of FTC - AT

  • Income Tax:

    TP adjustment - ALP determination - Selection or change in Most Appropriate Method (MAM) - “Other Method" v/s "CUP Method" - Assessee can resile from the most appropriate method as was adopted in its transfer pricing study report - However, the MAM to benchmark the international transaction in question is the ‘Other Method’ and not the ‘CUP Method’ as per the assessee - Determination of ALP of the international transaction in question by adopting ‘Other Method’ confirmed. - AT

  • Income Tax:

    Income deemed to accrue or arise in India - The centralised services income, by a reasonable measure, outstrips the royalty income. Thus, rather than centralised service income being ancillary and incidental to royalty income, in reality, it is a reverse situation. In such a scenario, it cannot be said that centralised service income, being ancillary and incidental to royalty income, would fall under Article 12(4)(a) of the Tax Treaty. - Additions deleted - AT

  • Income Tax:

    TP adjustment - Determining the arms’ length value for sale of steam at Rs. “nil” - scope of the quotation obtained by the assessee from SSPL - the quotation obtained by the assessee is not backed by any analysis of the evaluation of the price so quoted and the said quotation is not supported by any supporting evidences. - Since appropriate exercise has not been conducted by the assessee to justify the arms length price of steam supplied to its associated enterprise, this issue is restored to the file of AO - AT

  • Income Tax:

    Valuation of shares at a premium u/s 56(2)(viib) - Keeping in view that DCF is correct method of determining the FMV of the unquoted shares, the assessee has option to determine the method of valuation and the AO has no power to reject the method resorted by the assessee, the results in the instant case of the holding company have exceed the projections, as no infraction of methodology has been brought out by the AO and non-payment of advance tax cannot be a collateral reason to reject the DCF method, order of CIT(A) sustained - AT

  • Income Tax:

    Nature of receipts due to settlement in the court - Right of Preemptive/right of first priority of purchase of the premises - assessee has claimed it as non-taxable and has credited directly to the capital accounts of the partners of the firm in their respective profit sharing ratio - The receipt may have any other incidence of taxability, but certainly not a Capital Gains. - AT

  • Income Tax:

    Penalty u/s 271D - contravention of provisions of Section 269SS - Cash transaction between the Company and its Director - a. cash utilized for purchase of stamps - b. cash deposited in the bank account of the compnay by the Director - It could not be shown as to why the transactions could not be undertaken in compliance with the prescribed modes u/s 269SS. - Levy of penalty confirmed - AT

  • Customs:

    Detention and seizure of betel nuts - goods of foreign origin and unfit for human consumption - There is nothing on record, to even have a prima-facie view that the goods were of foreign origin, more particularly for the reason that the goods were seized within Indian Territory and there is nothing including any foreign markings on the bags to even remotely suggest that the goods seized were of foreign origin. There is also no credible expert opinion regarding the origin of the goods. - order of tribunal for releasing of the goods with consequential relief maintained - HC

  • Customs:

    Criminal conspiracy in order to get ineligible Duty Entitlement Pass Book - showing realization of Foreign Exchange against export of coloured water and mis-declared the customs as high quality printing ink for refilling catridges - the prosecution proved its case beyond reasonable doubt that the petitioner/A1 has committed the charged offences. - HC

  • Customs:

    Classification of imported goods - Low Aromatic While Spirit/Hydro Carbon Solvent and other Petroleum Class A,B and C grades - There is a vast difference between the minimum IFB and maximum FBP fixed as per IS standard 1745 and the result received for the impugned goods. - the impugned goods cannot be classified under chapter sub heading 27101920, on the basis of the parameters available in the CRCL, Test Report - AT

  • Customs:

    Revocation of Customs Broker License - export of cut and polished diamonds - alleged misuse of several persons to secure importer exporter code (IEC) numbers - As the case revolves around beneficiary exporter, operating under the cover of entities existing on paper’ and evidence of existence of such operator being hearsay, it was behoved the licensing authority to allow cross-examination rather than deny solely on the ground that the statements had not been retracted - The impugned order is set aside - AT

  • Customs:

    Classification of imported goods - Mitsubishi brand Air Conditioner-Outdoor units and Air Conditioner-Indoor units of more than two ton capacity - to be classified under CTH 84159000 as parts of Air-conditioners or not - CMVRF, when imported and presented together in unassembled/ disassembled condition on a single Bill of Entry for supply against a unique project would be classified under heading 84151010 (pre-2013) and when presented separately as part against different bill of entries filed over a period of time shall be classified as parts under heading 84159000. - AT

  • Customs:

    Classification of imported goods - Waxsol series of products such as Waxsol-A, Waxsol 9-11A, Waxsol-911B and Waksol-B etc - A detailed examination about the nature of product, its usage and its proper classification based upon exclusion clauses of HSN explanatory note is warranted including of consideration of chapter 2712. - In view of claim of product being in the nature of Slag wax, same needs elaborate discussion and findings from the authority below. - AT

  • Customs:

    Levy of penalty u/s 112(a) and u/s 114AA of the Customs Act, 1962 - allegation of abetment in undervaluation - evasion of Customs Duty by several syndicates of crane importers - no clear-cut findings against the appellant - The interest of justice will be met if penalty imposed on the appellant under Section 112(a) is reduced from Rs.50,000/- to Rs.1,000/- only and that under 114AA from Rs.1,00,000/- to Rs.5,000/- - AT

  • Indian Laws:

    Dishonour of Cheque - insufficient funds - The complainant by leading cogent evidence that the accused had issued a cheque against a liability to the complainant, which on presentation to the bank of the accused was dishonored for insufficient funds and despite issuance of legal notice; accused failed to make the payment, has proved the ingredients of the offence punishable U/S 138 of N.I. Act. - HC

  • IBC:

    Initiation of CIRP - Proof of debts - raising an Invoice, is a precondition, in all cases, for admission of a Section 9 Petition under the I & B Code, 2016 or not - Appellant / Petitioner / Operational Creditor, in the instant case, has not proved, to the satisfaction of this Tribunal, as to the Aspect of Debt and Default, committed by the Respondent / Corporate Debtor - NCLT rightly dismissed the application - AT

  • Service Tax:

    Refund of Service Tax amount - Period of limitation - advance amount returned/ refunded to the buyer - Once the buyer cancelled the booking and the consideration for service was returned, the service contract got terminated and once it is established that no service is provided, then refund of tax for such service become admissible. - Refund granted, even for the period beyond the normal period of limitation - AT

  • Service Tax:

    Classification of services - Support Services of Business or Commerce or renting of immovable property - royalty / concession fee / lease charges received by the Port from KPPL represents consideration for providing services relatable to the taxable service - the arrangements between the parties was one of public-private partnership and was in the nature of a joint venture where two parties have got together to carry out a specific economic venture on a revenue sharing basis and there is no service rendered by Mormugao Port which can be taxed. - AT

  • Service Tax:

    Business Auxiliary Service - appellant is individual or a commercial concern? - commercial concern covers individuals also when they are into a business and to this extent,the appellant’s arguments are not acceptable. The appellants are liable to pay service tax on the services rendered by them - AT

  • Service Tax:

    Classification of services - single work order for carrying out the services - Trucking, loading and unloading of dolomite boulders from mines to crusher plant - Haulage of Dolomite from stock-pile/washery through trucks - Loading of dolomite into all types of railway wagons by machine/manual labour - there must be no doubt in holding that the primary and predominant service which gives the essential character to this composite service is the service of transportation. - AT

  • Service Tax:

    Levy of Service Tax - Commercial Training or Coaching Services - income from NIIT for imparting computer coaching services - The category of ‘Commercial Coaching or Training Services’ covers the practical training classes also. There are no ground to set aside the demand under this category. - AT

  • Service Tax:

    Levy of Service Tax - GTA Services - goods are transported by rail - Merely because the appellant had to use the rail transportation in certain occasions, it cannot be said that they have provided services of transportation of goods by rail. - AT

  • Service Tax:

    Jurisdiction of Commissioner (Appeals) to issue fresh Show Cause Noice (SCN) or to raise demand on new ground - The power to issue a notice is specifically provided for in section 73(1) of the Finance Act. Once it is specifically so provided, it cannot be urged that this power to issue the notice would also be available under sub-section (4) of section 85 of the Finance Act to a Commissioner (Appeals) when he is hearing an appeal, merely because of the use of the expression 'pass such orders, as he thinks fit'. - AT

  • Central Excise:

    100% EOU - extended period of limitation - while demanding duty was not sure of the provision of law under which the same had to be demanded and even the penalty has been imposed under Section 112 of Customs Act, 1962, whereas the duty should have been demanded under Central Excise Act and penalty imposed under Central Excise Act/ Rules only. - The demand can be sustained only for the normal period of limitation - AT

  • Central Excise:

    Validity of order beyond the scope of show cause notice (SCN) - it is found that the Adjudicating Authority has gone beyond the scope of the Show Cause Notice. In case the learned Commissioner was to reject the claim totally, he should have put the appellants to proper notice in terms of principles of natural justice. As the proposal and final order are contrary to each other, in the instance case, the principles of natural justice have been grossly violated. - AT


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2023 (6) TMI 362
  • 2023 (6) TMI 361
  • 2023 (6) TMI 360
  • 2023 (6) TMI 359
  • Income Tax

  • 2023 (6) TMI 352
  • 2023 (6) TMI 351
  • 2023 (6) TMI 350
  • 2023 (6) TMI 349
  • 2023 (6) TMI 348
  • 2023 (6) TMI 347
  • 2023 (6) TMI 346
  • 2023 (6) TMI 345
  • 2023 (6) TMI 344
  • 2023 (6) TMI 343
  • 2023 (6) TMI 342
  • 2023 (6) TMI 341
  • 2023 (6) TMI 340
  • 2023 (6) TMI 339
  • 2023 (6) TMI 338
  • 2023 (6) TMI 337
  • 2023 (6) TMI 336
  • 2023 (6) TMI 335
  • 2023 (6) TMI 334
  • 2023 (6) TMI 358
  • 2023 (6) TMI 357
  • 2023 (6) TMI 356
  • 2023 (6) TMI 333
  • 2023 (6) TMI 355
  • 2023 (6) TMI 354
  • 2023 (6) TMI 353
  • 2023 (6) TMI 332
  • Customs

  • 2023 (6) TMI 325
  • 2023 (6) TMI 324
  • 2023 (6) TMI 328
  • 2023 (6) TMI 323
  • 2023 (6) TMI 322
  • 2023 (6) TMI 321
  • 2023 (6) TMI 320
  • 2023 (6) TMI 319
  • 2023 (6) TMI 318
  • 2023 (6) TMI 327
  • 2023 (6) TMI 317
  • 2023 (6) TMI 326
  • 2023 (6) TMI 316
  • Securities / SEBI

  • 2023 (6) TMI 331
  • Insolvency & Bankruptcy

  • 2023 (6) TMI 329
  • 2023 (6) TMI 315
  • 2023 (6) TMI 330
  • Service Tax

  • 2023 (6) TMI 314
  • 2023 (6) TMI 313
  • 2023 (6) TMI 312
  • 2023 (6) TMI 311
  • 2023 (6) TMI 310
  • 2023 (6) TMI 309
  • 2023 (6) TMI 308
  • 2023 (6) TMI 307
  • 2023 (6) TMI 306
  • 2023 (6) TMI 305
  • 2023 (6) TMI 304
  • 2023 (6) TMI 303
  • 2023 (6) TMI 302
  • 2023 (6) TMI 301
  • Central Excise

  • 2023 (6) TMI 300
  • 2023 (6) TMI 299
  • 2023 (6) TMI 298
  • 2023 (6) TMI 297
  • 2023 (6) TMI 296
  • 2023 (6) TMI 295
  • 2023 (6) TMI 294
  • 2023 (6) TMI 293
  • CST, VAT & Sales Tax

  • 2023 (6) TMI 292
  • Indian Laws

  • 2023 (6) TMI 291
 

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