Highlights / Annotations / Quick updates For September of 2019

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September 30, 2019
Cus.: Clarification regarding Duty Drawback allowed in cases of short realization of export proceeds due to bank charges deducted by foreign banks
September 30, 2019
Cus.: Clarification regarding applicability of All Industry Rates of Duty Drawback while fixing Brand rate of Duty Drawback in post GST Era issued by the C.B.I.T.& C., New Delhi, vide Circular No.24/2019- Customs dated 8th August, 2019
September 30, 2019
SEBI: Securities and Exchange Board of India (Issue and Listing of Debt Securities by Municipalities) (Amendment) Regulations, 2019.
September 30, 2019
Cus.: Valuation of imported goods - necessary software had to be embedded in the equipment - the Department was right in invoking principle under Note 4 to Section XVI of the First Schedule for classification and considering the imported items as part of one apparatus or machine to be classifiable under the heading appropriate to the function. - SC
September 30, 2019
Indian Laws: Seizure and recovery of Contraband - poppy straw - The conclusion drawn by the High Court was completely unsustainable and the High Court erred in extending the benefit of acquittal to the respondent - SC
September 30, 2019
I.Tax: Exemption claimed u/s 10(25)(iii) - approved superannuation fund - The learned Tribunal was justified in upholding the exemption irrespective of the fact that the provision of the law, under which exemption was quoted, was not correctly mentioned by the assessee. - HC
September 30, 2019
I.Tax: Capital gain u/s 45(4) in partnership firm on retirement of a partner - dissolution/reconstitution of partnership firm - the provisions of Section 45(4) would not be attracted on the retirement of the two partners and consequential allotment of their share in the assets in the Assessee Firm - HC
September 30, 2019
I.Tax: Penalty u/s 271D and 271E - violation of Sections 269SS and 269T - repeated mistake - penalty for earlier years was dropped - Tribunal fell in error in upholding the imposition of penalty by just observing that the Assessee ought not have repeated such a mistake and ought to have done the transaction only through Bank - HC
September 30, 2019
GST: Grant of regular bail - fraudulent availment and utilization of Input tax Credit - bail should not be granted in such like cases of economic offences merely on the ground that the accused was in the jail for a period of one year. - HC
September 30, 2019
C.Ex.: Adjustment of duty excess paid and short paid - provisional assessment sought for many years, but not done - as there is no such provision in law, such relief cannot be granted.
September 30, 2019
Cus.: Refund of SAD - N/N. 102/2007-Cus - all conditions including the time limit within which the refund claim has to be filed must be fulfilled. - The refund applications of the importer beyond the time limit have been correctly rejected by the lower authorities.
September 30, 2019
I.Tax: Addition on stock difference or understatement of sundry debtors - assessee has over stated the values by inflating the unit rates to increase the value of closing stock to the bank, but the quantity remained the same - there is no reason for making the addition on stock difference or understatement of sundry debtors.
September 30, 2019
I.Tax: Condonation of delay - delay of 11½ years - on the basis of findings in the order for subsequent year, appeal was filed for earlier year before CIT(A) - it is noticed that the delay issue is a technical issue and the delay is not on account of lethargy on the part of the assessee or on account of any malafide reasons - Delay condoned.
September 30, 2019
I.Tax: Validity of Notice u/s 143(2) - period of limitation - notice issued by an officer who had no jurisdiction over the assessee - Notice suffered from an inherent lacuna affecting his jurisdiction so the same could not be cured by having resort to the provisions of section 292B
September 30, 2019
I.Tax: LTCG - Exemption u/s 54 - assessee and her husband purchased the new property in their son’s name - the new residential house need not be purchased by the assessee in his own name nor is it necessary that it should be purchased exclusively in his name.
September 30, 2019
S.Tax: GTA Service - Demand of service tax on transportation of palm oil fruit - whether the same is a fruit entitled for the exemption - Any produce of a tree which is the result of ripened ovary, irrespective of nature of it being edible or not, amounts to fruit. - Benefit of exemption allowed. - Tri
September 30, 2019
GST: Profiteering - project “Paramount Emotions” situated in GH-05A, Sector 1, Greater Noida - benefit of Input tax credit not passed on - reduction in the price of flat - section 171 of CGST Act, 2017 - assessee has apparently committed an offence u/s 171 (3 A) of the CGST Act, 2017 and therefore, he is liable for imposition of penalty - NAPA
September 28, 2019
I.Tax: Clarification on delay in filing of Form No.10B for AY 2016-17 and AY 2017-18 - Board's order under section 119(2) of the Income-tax Act, 1961
September 28, 2019
I.Tax: Extension of the due date from 30th September, 2019 to 31st October 2019 for filing of ITR - However no extension for making payment of Tax and interest liability u/s 234A - Order u/s 119 issued.
September 28, 2019
I.Tax: Credit for tax deducted at source for the purposes of section 199 - Rule 37BA of the Income-tax Rules, 1962 - As amended
September 28, 2019
GST: Validity of assessment orders passed pursuant to a best judgment assessment - Section 62 of the GST Act - Default in filing of returns - pray for filing of belated returns rejected - HC
September 28, 2019
GST: Pre-Deposit - Appealable order before tribunal but tribunal yet to be constituted under GST - pray allowed to make a pre-condition for filing the appeal - HC
September 28, 2019
I.Tax: Addition u/s 68 - unsecured cash credit - Why he did not put the entire savings in the bank and why he retained a sum of ₹ 2,40,000/- with him in cash? - He is admittedly not an income tax assessee, thereby strengthening the view that not only he is not a rich man but he is barely able to make the ends meet, additions confirmed. - HC
September 28, 2019
I.Tax: Recovery proceedings u/s 226(3)(iii) - attachment (Lien) of bank account - No notice issued to joint account holder - The mandatory requirement is not complied with by the revenue, in terms of Section 226(3)(iii) of the Act. - Notice quashed. - HC
September 28, 2019
I.Tax: Addition u/s 40A(3) on account of payment in cash expenditure of ₹ 5 Lacs - Demand draft was made but the party refused to accept - The purpose of section 40A (3) is not to restrict the assessee`s genuine business activity. - Tri
September 28, 2019
I.Tax: Computation of LTCG - adoption of value u/s 50C - there is no value fixed by the Stamp Valuation Authority as there was no sale deed. -as the properties at Chowbaga (West) are located adjacent to each other, the value fixed by the DVO for plot no. 2, may be taken as the value of plot no. 3 for the purpose of Section 50C
September 28, 2019
I.Tax: TDS u/s 194H - commission - payment of one time non-refundable premium to bank for purchase of gold - this transaction of payment of one time premium would effectively go to add to the purchase cost of the gold and cannot be categorised as commission - No TDS liability - Further, a debatable issue cannot be the subject matter of rectification proceedings u/s.154
September 28, 2019
I.Tax: Bad & doubtful debt or mere Provisions were made - provisions u/s.36(1) (vii) and 36(1) (viia) are separate and independent to each other - CIT(A) has rightly observed that, creation of provisions for bad and doubtful debts by debiting profit and loss account reducing the same from debtor account constitutes write off.
September 28, 2019
I.Tax: MAT - Adjustments to Book Profit - CIT(A) failed to consider the binding precedent and allowed the adjustment beyond what is provided in Explanation to Section 115JB by reducing the profit on sale of fixed assets which was credited by the assessee company to its profit and loss account.
September 28, 2019
Cus.: Classification of imported goods - Coco Jelly - Clearly the impugned goods cannot be classified under CTSH 2106 90 99 and would merit classification under CTSH 1704 90 90 only.
September 28, 2019
Cus.: Imposition of penalty on Customs Broker - It was alleged against the appellant that they had not obtained any authorization or document from Importer on behalf of whom they have filed Bill of Entry - the appellant has not abetted in mis-declaration of the goods, the penalty imposed u/s 112(a) or 114AA cannot sustain.
September 28, 2019
IBC: Resolution Process - exclusion of 35 days of delay in appointing the ‘Resolution Professional’ in place of the ‘Interim Resolution Professional’ and the period during which different applications were pending - period of 35 days and 18 days excluded for the purpose of counting 180 days or 270 days of ‘Resolution Process’
September 28, 2019
I.Tax: Order u/s 143 (3) r.w.s.144 C in the name of the predecessor of the amalgamated company - The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law - HC
September 28, 2019
Indian Laws: Complaint against the Chartered Accountant (CA) after 7 years of audit - the complaint should not be entertained as the auditors are not bound to keep their working papers beyond seven years and therefore all the relevant audit papers may not be available for reply to the complaint. - HC
September 28, 2019
I.Tax: Addition on account for cash deposits in Bank account - deposits from a close friend of assessee's father who is no longer alive - only evidence which the assessee could rely upon was the Affidavit of the sole surviving child of deceased - The insistence of the tax authorities without upsetting the evidences available on record cannot be accepted. - Tri
September 28, 2019
I.Tax: Jurisdiction of AO for service of notice u/s 143(2) - Difference in address as per PAN records and Income Tax Return (ITR) - even if presumed to be by jurisdictional Assessing Officer has not been served properly.
September 28, 2019
I.Tax: Creation of HUF - The moment a person is born into a family, HUF is created and if the land holdings were in the joint names of the family members, the assessee also being part of the HUF, would have a right in the income there from. - Tri
September 28, 2019
PMLA: Money Laundering - attachment of properties - Since the charge-sheet/prosecution complaint has not been filed under the provision of Section 8(3)(a) of the Act within the prescribed period of time, the attachments stand lapsed, thus, the same are released. - Tri
September 28, 2019
C.Ex.: CENVAT Credit - capital goods - Only because the flay ash handling plant is situated 60 kms. away from the factory premises of the Appellant, it cannot be a ground to deny the Cenvat Credit Cenvat credit on capital goods used in the Fly Ash Handling Plant.
September 28, 2019
I.Tax: Interest u/s. 244A on self assessment tax - Whether no interest u/s. 244A of the Act is allowable on the refund due to the assessee on the self-assessment tax? - Assessee is eligible for interest.
September 28, 2019
S.Tax: Whether the Appellant is liable to pay interest under Section 75 of the Finance Act, 1994? - The Appellant prior to the issue of show cause notice, on being pointed by the audit, did not dispute and paid the service tax. - No case of mis-conduct is made out against the Appellant - Demand of Interest and penalty set aside.
September 27, 2019
I.Tax: Clarifications in respect of filling-up of return forms for the Assessment Year 2019-20
September 27, 2019
GST: Detention of goods alongwith the truck - E-way bills of three parties not generated - the impugned order is totally bereft of any reasons, in the absence of which the order stands vitiated due to non-application of mind on the part of the maker of the order. - HC
September 27, 2019
GST: Best Judgement Assessment under GST - failure to file returns within time - This Court may not be justified in granting an extension of the period contemplated u/s 62(2), so as to enable the assessee to file a return beyond the said period for the purposes of getting the benefit of withdrawal of an assessment order passed on best judgment basis u/s 62(1) - HC
September 27, 2019
GST: Attachment of property - Bank accounts and immovable property - The properties in respect of which the prohibition order has been passed were not found at the premises which came to be searched - Attachment of bank account stayed - HC
September 27, 2019
I.Tax: Leave encashment expenditure - the appellant did not raise any such plea before the Tribunal. In any event, even if such a plea were to be raised, there is little that the Tribunal could have done about it since it was for the appellant to claim the said allowance in the years in which actually the leave encashment amounts were paid to the employees - HC
September 27, 2019
I.Tax: Eligibility of benefit u/s 54 - re-investment in residential property outside India, i.e. in London in this particular case - the said amendment is prospective and would not apply in the facts of the present case - HC
September 27, 2019
I.Tax: Assessee firm converted into Private Limited Company - Addition on account of Sales Tax refund - Since the assessee firm exist in assessment year under appeal and also declared business income in assessment year under appeal, there was no reason to show the impugned amount as income of Private Limited Company.
September 27, 2019
I.Tax: Additions based on declaration made during the course of search - Surrender for various group concerns and not specifically for the assessee - Additions cannot be sustained merely on the basis of statement given during the course of search without correlating the addition with the incriminating seized material. - Tri
September 27, 2019
Cus.: Provisional release of export goods - modification of conditions stipulated in respect of execution of bank guarantee - It is the duty of this Court to safeguard the interest of the Revenue as well, since the matter is still to be adjudicated upon, especially when the interest of the exporter is already care of by the revenue in ordering provisional release. - HC

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