Highlights / Annotations / Catch Notes

I.Tax: Addition u/s 68 - Unexplained credit - scope of amended provisions of section 68 - onus to prove source of source - Although, the issue before us pertains to assessment year 2012-13 where amended provisions of section 68 do not apply, however, considering the facts of the case, the assessee has to explain the source of the source, as the assessing officer has pointed out the trail of money, and in that circumstances owns shifts on the assessee to provide suitable explanation to Assessing Officer. - AT
I.Tax: Income accrued in India - sum received for advisory assistance for design and construction of hotel - Indo-US tax treaty - Amounts in question are not taxable in terms of the provisions of the applicable tax treaty and the findings of the co-ordinate bench still hold good in law, we have no reasons to take any other view of the matter than the view so taken by the coordinate bench - CIT(A) was quite justified in the following a binding judicial precedent - AT
I.Tax: Revision u/s 263 - period of limitation - CIT may enhance, modify or cancel the assessment order and may also direct the AO to cause examination of the details and further pass an order. But he can do so only after granting assessee an opportunity of hearing. However according to the provisions of sub-section (2), such order could be passed only within the period of two years from the end of the financial year in which the order sought to be revised was passed. - AT
I.Tax: Income from house property - notional rental income - no efforts were made by the Assessing Officer to determine the monthly rental/rate at which the Leased Property might have been reasonably expected to be let out in terms of Section 23(1)(a) - actual annual rent received by the Appellant cannot be substituted by a notional rent without the Assessing Officer arriving at a finding that the Leased Property is can be reasonably expected to be let out for a higher sum. - AT
GST: Refund of accumulated Input Tax Credit - input and output supplies are same - Violation of Article 14, and Article 300A of the Constitution of India and Section 54 of the Central Goods and Services Tax Act, 2017 or not - the circular dated 31.03.2020, being a subordinate legislation, is repugnant and conflicting to the parent legislation i.e. Section 54(3)(ii) of the CGST Act and hence, the same cannot be applied to oust the legitimate claim for accumulated ITC refund filed by the petitioner - HC
GST: Seeking Bail - Pre-trial incarceration - fraud related to GST invoices - The petitioner is in custody since 26-01-2022, i.e., for five months. Given the period of incarceration viz-a-viz the amount fallen to the petitioner’s share, coupled with the petitioner being a senior citizen, further pre-trial incarceration might not be justiciable. - the petitioner makes a case for bail, subject to the conditions - HC
GST: Profiteering - purchase of fiats - it is alleged that the benefit of input tax credit had not been passed on to the Applicant No. 1 and Applicant No, 2 by way of commensurate reduction in prices - Contravention of section 171 of CGST Act - the Authority finds that. the profiteered amount required to be returned/passed on by the Respondent is Rs, 2,86,32,474 (inclusive of GST @ 12%/ 8% on the base price) as is evident from the above Report - NAPA
GST: Seeking of regular bail - availment of fraudulent ITC on the basis of goods less and bogus purchase invoices from nonexistent and fraudulent firms - fake/bogus firms - Considering the gravity and the nature of the allegations levelled against the applicant-accused and the fact that the investigation of the case is at nascent stage and further considering the fact that now a days economic offences are rampant and should be dealt with the firmness, this court does not deem it proper to grant the concession of bail to both the applicants-accused at this stage - DSC
I.Tax: Disallowance being amount of State Value Added Tax (VAT) paid for earlier years - Deduction u/s 80IB claimed - Assessee became liable to pay VAT for earlier years - The assessee had not claimed any deduction on account of VAT in the computation of income for earlier years. It was only during the year under consideration that the assessee claimed such deduction on paying the VAT amount of earlier years. In that view of the matter, deduction of such VAT has to be allowed in this year itself. - AT
I.Tax: Deduction u/s 80IB - whether freight charges recovered from the customers are eligible for deduction under section 80IB ? - since the department has allowed the claim of the assessee in previous years, hence the genuineness of the claim should not be doubted. For the current assessment year, the assessee has furnished relevant documents and evidences to fulfill the conditions for claiming deduction under section 80IB of the Act, as noted above, therefore we are of the view that assessee is entitled to claim deduction under section 80IB - AT
I.Tax: Protective assessment - Addition u/s 69/69C - Unaccounted investment ad unaccounted commission - CIT(A) has confirmed the substantive additions on the three entities so the protective addition made in the hands of the assessee has been deleted by him which action of the CIT(A) does not require any interference from our side because we note from the AO’s report placed before us in respect of this appeal that these three entities in whose hands the substantive additions have been confirmed by the CIT(A) by his order has not preferred any further appeal against the action of Ld. CIT(A) before this Tribunal, so the impugned action of CIT(A) deleting the protective addition in the hands of assessee company is upheld. - AT
IBC: Joint and severable liability of respondent to make good the losses suffered by the applicant - the applicant did not approach this Adjudicating Authority when the Resolution Plan was under consideration and had come before this Adjudicating Authority after the approval of the plan, this Adjudicating Authority is of the opinion that he has no right to file any application or seek any relief at this stage - Tri
C.Ex.: Violation of principles of natural justice - Recovery of central excise duty, interest and penalty without service of adjudication order - absence of actual proof of any service of the adjudication order upon the petitioner - Section 37C of the Central Excise Act, 1944 - interim relief granted - directed to take immediate steps for refund of the amount recovered in excess of 20 per cent of the demand - HC
Indian Laws: Departmental inquiry proceedings against the Commissioner of Income Tax - allegation of corruption - assets have grown grossly disproportionate to his known sources of income - seeking stay on the ground that, petitioner was being prosecuted on the criminal side and a charge-sheet had been framed under various provisions of Prevention of Corruption Act - The petitioner cannot be allowed to blow hot and cold at his own convenience. - HC
GST: Profiteering - allegation is that the benefit of reduction on the ITC not passed on by way of commensurate reduction in the price - The Respondent cannot deny the benefit of tax reduction to his customers and enrich himself at the expense of his buyers as Section 171 provides clear cut methodology and procedure to compute the benefit of tax reduction and the profiteered amount. - The Respondent was legally not required to collect the excess GST and therefore, he has not only violated the provisions of the CGST Act, 2017 but has also acted in contravention of the provisions of Section 171 (1) of the said Act as he has denied the benefit of tax reduction to the ordinary buyers by charging excess GST. - NAPA
GST: Profiteering - levy of penalty - supply of the products manufactured and sold by the Respondent - it is evident from the narration of facts that Respondent has denied the benefit of tax reduction to the customers in contravention of the provisions of Section 171(1) of the CGST Act, 2017 and he has thus committed an offence under Section 171(3A) of the above Act and therefore, he is liable for imposition of penalty under the provisions of the above Section with effect from 01.01.2020 onwards for the amount profiteered. - NAPA
I.Tax: Revenue expenditure or capital expenditure - Allowability of expenses on acquisition of clientele and technical human resource i.e., employees to execute the contract - it is not emerging that the assessee has acquired either complete business i.e., the profit apparatus or any capital asset. In such case, the expenses incurred are to be allowed as revenue and assessee has only amortized these expenses in 5 years and the same are allowable as revenue expenditure u/s.37 of the Act. - AT
I.Tax: Penalty @ 10% u/s 271AAA - undisclosed income - there was no other undisclosed income to identify with the seized materials/Panchanama, the assessee while filing the return of income pursuant to section 153A - taking note that the amount has been brought to tax by the AO though not shown by the assessee in the Return of Income, the penalty u/s. 271 AAA of the Act cannot be legally sustained. - AT
I.Tax: Default in payment of TDS - liability to pay interest - when the assessee is considered as in-default u/s. 201(1) - precondition - The obligation to deduct and deposit tax at source is thus with reference to tax deductible, i.e., that liable to be deducted under the provisions of Chapter-XVII of the Act, which provides for a mechanism for a lower (including nil) deduction of tax at source u/s. 197. The fact of the payee company having incurred a loss, so that it was not liable to any tax for the relevant year/s, becomes, therefore, largely irrelevant as far as assessee-payer is concerned. - AT
I.Tax: Power to CIT(A) to set aside the order and remand back to AO - CIT(A) has only directed the AO to determine the actual distance based on these findings and then accordingly deal with the adjustment to be made. There is clearly a difference between setting aside an issue to the A.O., which power the Ld. CIT(A) does not have as per Section 251 of the Act, and giving directions to the AO. An issue set aside to the AO is left for adjudication to him, while in a case giving directions, the issue is restored to the AO only for acting on the adjudication done by the CIT(A). - AT
Cus.: Entitlement for waiver of rent / demurrage payable to the respondents - storage of imported consignments of R22 Refrigerant Gas contained in four containers beyond the stipulated period - restricted goods or not - The petitioner also cannot be burdened with the demurrage liability for the period thereafter as the goods were not allowed to be re-exported despite the above mentioned orders. Therefore, partial waiver up to 19.10.2015 is liable to be sustained. - HC
VAT: Validity of pre-assessment notice - Serious allegations have been leveled against the petitioner in the said notice. It is for the petitioner to reply to the same to distance itself from the proposals contained therein, in such proceedings. Proceedings initiated under Section 27(2) of the Tamil Nadu Value Added Tax Act, 2006 cannot be scuttled. - HC
Co.Law: Appointment of Additional Director or independent Director - incorrect declaration in the aforesaid Form DIR-12 or not - The subsequent documents along with the resolutions if taken at its face value makes, it is abundantly clear that Mr. Bakshi was appointed as an Additional Director and there was no intention on the part of the petitioners to appoint him as an “Independent Director” nor any attempt was made to project him as “Independent Director”. One single statement that his consent was taken as “Independent Director” cannot be construed that the board of Directors had actually appointed him as “Independent Director” and not as “additional Director” - HC
C.Ex.: Refund of additional duty on Diesel - Exemption to goods supplied to UN or an International Organisation - in the present case the duty for which the exemption and refund is claimed is not covered by the Notification as the same was imposed under Section 133 of the Finance Act 1999 as amended issue of Section 120 of Finance Bill, 2005. Therefore, the duty which is not mentioned in the Notification cannot be given exemption. - AT
VAT: Classification of goods - Equipment - idler - In the present case, the Petitioner does not appear to have placed on record materials to show what the function of the ‘idler’ is. The STO treated it as “machinery spare” whereas the ACST took the view that components parts and accessories thereof constituted a separate part of the entry and therefore 12% rate in respect of unspecified taxability came into play when it concerned component parts and accessories. While it is true that idler by itself may not be a complete machine, what is exigible to tax is not only the complete machinery but also spare parts and accessories of machines. - HC
VAT: Exemption from Sales Tax - goods sold for defence organization through various dealers - The requirement of Entry 29-B is that the dealer should have sold the goods to Defence Service installations and at the highest to Defence personnel and not to individuals who may or may not have further sold it to Defence personnel or Defence Services installations - HC
VAT: Validity of assessment order - The provision of TNVAT Act, 2016 does not contemplate the appointment of an Arbitrator to look into correctness or otherwise of the revision notices issued for reversing the deemed assessment order. Therefore, there are no merits in the present writ petition. The petitioner should have filed a reply to the revision notices on merits and awaited for final orders. Instead, the petitioner resorted to dilatory tactics with request to appoint a Joint Commissioner. - HC
Indian Laws: Dishonor of Cheque - legally enforceable liability of a non-existent partnership firm - dissolution of partnership firm - obligation upon the partners - The question of applicability of Section 45 of the Indian Partnership Act, 1932, is only a question of law and such a question could be raised at any stage of the case and also in appeal. In fact, the learned Trial Court itself should have considered this aspect of the matter, even though it was not raised by or on behalf of the present appellant because it is the duty of any Court of Law to find out the truth and to that end, examine the applicability of the relevant provisions of the Law to the facts of the particular case which it is called upon to decide. - HC
Indian Laws: Dishonor of Cheque - pre-deposit of quantum of compensation amount - double the cheque amount has been ordered as compensation - Applying the test of deciding the rights of the parties, it has been held that it is only a direction to deposit, subject to the final outcome in the appeal and therefore is only a matter of procedure without finally determining the rights of parties. Applying the test as to whether non-passing of such order or accepting of any plea by the accused or the complainant, whether it would result in culmination of proceedings, the answer is again in the negative - HC
GST: Levy of GST - valuation - reimbursed amount of Stipend received from Industry Partner to be distributed to the trainees at actuals - pure agent service - the stipend paid by the Industry Partners to the applicant to be further paid to the trainees in full does not attract GST and is not required to be added to the taxable value. - AAR
GST: Profiteering - four towers/blocks of the project Celebrity Gardens - The Authority finds and determines that the Respondent has profiteered by an amount of Rs. 1,54,269/- for the project 'Celebrity Garden Block K' during the period of investigation i.e. 01.07.2017 to 30.09.2019. The above amount that has been profiteered by the Respondent from his Home buyers in the above mentioned project. The claim of their refund along with the interest @18% thereon, from the date when the above amount was profiteered by him till the date of such payment, in line with the provisions of Rule 133 (3) (b) of the CGST Rules 2017, need to be verified by the concerned CGST/SGST Commissionerate - NAPA
I.Tax: Reopening of assessment u/s 147 - Time limit for notice - there is no document made available to prove that the notice under section 148 dated 31.03.2018 was sent for despatch to the appellant, within the end of the relevant assessment year i.e., 31.03.2018. Thus, it is crystal clear that the notice under section 148 for reopening the assessment was not sent to the appellant, within the time stipulated under section 149 of the Act and hence, the same vitiates the reassessment proceedings initiated under section 147 - HC
I.Tax: Validity of assessment order passed in the name of non-existent entity - merger - amalgamated company - Mere fact that the assessee has participated in the proceedings before the AO will not cure this substantive illegality and the mere participation of the assessee in the assessment proceedings cannot debar the assessee from challenging the proceedings on this ground as there is no estoppel against law. - AT
I.Tax: Addition made u/s.43CA - difference between the stamp duty value and the reported sale consideration - the difference added by the ld. AO in the assessment falls below the tolerance band of 10% and hence, by applying the proviso to Section 43CA of the Act, no addition is required to be made in the instant case u/s.43CA - AT
I.Tax: Scope of limited scrutiny - AO went on to examine this aspect of low income, he then asked the assessee about the investment made during the year because the ld. Assessing Officer wanted to see why the assessee has earned low income when there are huge loans and advances. When AO was examining the loans and advances, he came to know that this is the first year of incorporation and the LLP has been converted from the company. AO asked the assessee about the source of investment. Then based on this question, the assessee submitted that the source is the share capital and security premium of the erstwhile company before being converted to LLP and the ld. AO went on to examine the issue of security premium reserve. - AO has not exceeded the jurisdiction - Decided in favor of revenue - AT
I.Tax: Reopening of assessment u/s 147 - reopening beyond four years - the reopening of assessment u/s 147 in the present case, without any reference to failure on the part of the assessee to disclose all facts regarding the items in the return of income or books of account during the assessment proceeding, is not justified and is in violation to proviso to section 147. - AT
I.Tax: LTCG - FMV detrmination - AO computed assessee’s share being 1/4th of the long term capital gain - scope of section 9B of the Act which was brought on the Statute book by Finance Act, 2021 w.e.f 1.4.2021 - As perused the provisions of Section 9B and also analysed the arguments made before us by both the Parties and find that there was no provision in the Act to compute the deemed gain in respect of assets of the firm upon reconstitution retirement of a partner. We also note that a specific provision was inserted by Finance Act, 2021 w.e.f. 1.4.2021 providing for making such deemed addition on account of capital gain upon retirement of a person from the partnership firm which are applicable for AY 2021-22 and not to the year under consideration. - AT
I.Tax: Revision u/s 263 - Assessee merely kept referring to the decision that an enquiry was made by the ld. AO and section 263 should not have been invoked. We, however, find no merit in the contention of the ld. Counsel for the assesse with regard to the issue of claim of depreciation on electrical installation because though the inquiry was initiated, but the same was incomplete as the assessee did not reply to it in the way it ought to be. - Therefore, in real terms, there was no enquiry on the said issue. - Revision order sustained - AT
I.Tax: Addition u/s.43CA - Addition deleted as difference in value between the stamp duty authority and the consideration reported by the assessee is less than 10% - whether this proviso could be given retrospective effect so as to confer benefit to the assessee in the instant case? - CIT(A) had rightly deleted the addition made u/s.43CA of the Act both under normal provisions of the Act as well as in the computation of book profits u/s.115JB of the Act. In any case, this sum does not fall within the ambit of Explanation to Section 115JB (2) of the Act and hence, the same can never be added back in the computation of book profits u/s.115JB of the Act. - AT
I.Tax: Disallowance of remuneration paid by the assessee to its Working Partner u/s 40A(3) - Cash payment of expenditure in excess of specified limit - Scope of separate identity for the firm and its partners - As section 40A is a general provision and section 40(b) is a special provision and only in situation which are not covered by section 40(b), section 40A shall be applicable. In the present case, assessee being a partnership firm and section 40(b) being the special provision dealing with computation of income of firm, same shall be applicable for determining the amount of deduction available to the assessee. - No additions - AT
I.Tax: Disallowance of claim of bad debts - the advance made by the assessee in the ordinary course of business which is stock in trade is to be valued at cost or market price, whichever is less. In the present case, the debt has become bad and it being stock in trade the value is NIL. Therefore, it has to be considered as business loss and allowed. - AT
I.Tax: TDS u/s 194I - reimbursement of expenses - mobilization charges - the amount is part of rent of equipment or not - CIT(A) had merely reiterated the ultimate conclusions reached by the ld. AO without appreciating evidences filed by the assessee on record. But, the evidences filed by the assessee which are enclosed in the paper book filed before us together with the submissions thereon are staring on us which goes to prove clearly that the payments made by the assessee are nothing but reimbursements on which deduction of tax at source is not warranted. - AT
I.Tax: TP Adjustment - ALP adjustment on account of receipt of commission for Marketing Services - main contention of the appellant is that the functions undertaken by the assessee for selling the product is significantly different from what is undertaken for the purpose of earning the commission income from A.E - CIT-A deleted the adjustments - The reasoning given by the TPO that these two segments of the cost does not contribute to profit does not stand to any reason, in as much as the depreciation and the material actually contributes to the profits in the manufacturing segment. - AT
Cus.: Import of Gold - bonafide baggage or not - the petitioner has violated the provisions of the Customs and Baggage Rules, 2016. The petitioner was duty bound to declare under provision of Baggage Rules, 2016 read with Customs Baggage Declaration Regulations, 2013. Sub-clause (b) to proviso Rule 3 read with annexure 1 of the Baggage Rules. 2016, gold or silver ornaments in any other form cannot be allowed to be cleared duty free as bonafide baggage if they exceeded Rs.15,000/-. Gold or silver in any other form are not bonafide baggage. - HC
Cus.: Exemption form Customs duty for goods imported for use in the manufacture of finished goods in the nature of PCB assemblies - the appellant’s factory is manufacturer of induction melting and heating furnace as well as induction welding equipment - the goods imported by the appellant is squarely covered under the table given in the notification and also the finished goods wherein the same is also clearly given in the table accordingly, the appellant is entitled for exemption. - AT
S.Tax: Computation of Service tax liability - Works Contract - the order of Court below calculating the service tax liability on 100% of the turn-over under works contract service is illegal and irresponsible in view of the mandate of law - The appellant are directed to calculate the service tax payable under the Rules and file a calculation sheet before the assessing officer. If any amount is still payable by them they shall pay the same. It is further held that under such circumstances no interest is payable - AT
C.Ex.: Quashing of prosecution under Sections 9 and 9-AA of the Central Excise Act, 1944 - there is no exoneration or finding on merits by the CESTAT on the subject matter of the criminal complaints. In the said facts, the High Court was incorrect and wrong in quashing the criminal prosecution only on the ground that the tribunal has granted stay, subject to condition of pre-deposit, of the recovery of the tax and the penalty amount. - SC
C.Ex.: Clandestine Removal - Cigarettes - unaccounted stock - In absence of any linkage of the factory of appellants with the alleged Railway Receipts or third party private records or with third party statements, there are no grounds to hold manufacture and clandestine removal of such huge quantities of cigarettes. The demand based upon Railway receipt and document of transporters is not sustainable - AT
GST: Validity of assessment order - if the petitioner has got any objection and not paid tax as ascertained, a show cause notice has to be issued under Section 74(1) of the TNGST Act and after receiving objections, giving personal hearing, the assessment order ought to have been finalised. In this case, procedure not followed. It is also seen that following the impugned order, the respondent vide Form GST DRC-09, issued a communication, directing the Branch Manager, Axis Bank, Ramanathapuram, to recover the amount due from the petitioner under Section 79 of the TNGST Act, 2017, which is not proper. - assessment orders set aside - The respondent is directed to issue notice after following the procedures prescribed under the TNGST Act - HC
GST: Supply or not - mixed supply or not - Liaison activities between India office and Dubai office - host of activities undertaken by the Appellant at the behest of their Dubai Head Office - intermediary Service or otherwise - the host of activities performed by the Appellant at the behest of their Dubai Head Office will come under the ambit of “Supply” in terms of Section 7(1 )(a) of the CGST Act, 2017, and are required to take GST registration, and discharge their IGST liability, if any, on the amount received from their Dubai Head Office. - AAAR