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Home e-Newsletters Index Year 2022 November Day 17 - Thursday

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TMI Tax Updates - e-Newsletter
November 17, 2022

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Central Goods and Services Tax (Third Amendment) Rules, 2022 - Amendments in FORM GSTR-9 - Notification

  • Refund claim of un-utilized Input Tax Credit (ITC) - Export - Intermediary Services or not - place of provision of services - A bare perusal of the recitals and relevant clauses of the MSA do not in any manner indicate that petitioner is acting as an “intermediary” so as to fall within the scope and ambit of the definition of “intermediary” under Section 2 (13) of the IGST Act. Such clauses cannot also be interpreted to conclude that the petitioner has facilitated the services. - HC

  • Right to file appeal - aggrieved person - Though the adjudication proceeding was initiated and passed against the driver/in-charge of the vehicle in question, the petitioner’s concern being the consignee of the goods, had a reason to be aggrieved by the said order of the adjudicating authority. - HC

  • Income Tax

  • Assessment u/s 153A - incriminating material is found during search under Section 132 or not? - the issue does not arise for consideration unless it can be demonstrated by the Appellant-Revenue that the statements recorded under Section 132(4) disclose some incriminating material on the basis of which orders under Section 153A have been passed. - HC

  • Offence u/s 276C(2) r/w 278B - Wilful attempt to evade tax, etc - Conduct of the petitioners itself would indicate that it was a case of delayed payment of tax or deferred payment. The tax along with interest and penalty was accepted by the department without any reservations. Such delay in the payment will not amount to willful attempt to evade tax - the continuation of the proceedings against the petitioners would an abuse of process of the Court. - HC

  • Levy of penalty u/s 271B - default u/s 44AB - failure to get accounts get audited - Contradictory stand of the appellant when he contended that due to seizure of books by the sales tax authorities, audit of accounts under Section 44AB of the Act got delayed. Additionally, Tribunal held that appellant did not file the income tax return voluntarily but it was in response to a notice under Section 148 of the Act. - Penalty confirmed - HC

  • Disallowance of depreciation on lease hold land claimed u/s 32(1)(ii) - “right to mine” and the “surface right” falls within the definition of intangible assets as defined in Section 32(1)(ii) and Explanation 3 to Section 32(1(ii) - AO directed to treat this as “Capital Expenditure”, which is in enduring nature and grant applicable rate of depreciation on it as appliable to commercial rights of similar nature. - AT

  • Reopening of assessment u/s 147 - notice u/s 148 issued on non-existent entity as the assessee was dissolved - the name of assessee was struck off from the Registrar of Company - the AO passed the re-assessment order against the non-existent entity. Thus, the assessment order is void-ab initio - AT

  • Expenses as claimed u/s. 57(iii) - old dues not payable shown as Income from other sources - If the advance was taken from a Person who is now expired as per submissions made before the CIT(A) by the assessee, the assessee has not shown any measures taken by him as to whether in legal heirs of the said party are present to whom the dues can be repaid. Merely writing off the dues cannot allow the claim of the assessee. - Additions confirmed - AT

  • Revision u/s 263 by CIT - Bogus LTCG - Penny stock purchases - He merely makes general reference to the investigation report of the Department stating to have contained information regarding these shares. With the assessee having sufficiently demonstrated genuineness of the transaction of trading in shares of VIL and also that it was not a mere penny stock traded in - There is no error in AO accepting the assessee’s claim of the transactions being genuine - AT

  • Addition u/s 28(iv) - salary paid to expatriates - there cannot be a benefit accruing to the Korean company when the Indian PE of the assessee company does not reimburse its Korean company, because the assessee itself is the Korean company and the transaction in question is a wholly non-business and internal transaction of the Korean company - AO directed to delete the impugned disallowance - AT

  • Income from house property - excluding of service tax whereas in Form 26AS it is inclusive of service tax - assessee has deducted TDS on rent inclusive of service tax instead of exclusive service tax which has been duly reconciled by the assessee - the addition, is not found to be sustainable - AT

  • Penalty u/s 271(1)(c) - estimation of income u/s 44AD - addition made on credit summation made by the assessee - revenue had not come out with clear case of suppression of turnover and, penalty had been imposed merely on basis of enhancement of estimated income where impugned penalty would not sustain. - AT

  • Unexplained cash deposits during demonetization period u/s 69A - The cash deposited in the bank by the assessee during the demonetization period was out of the cash sales and the realization from the trade debtors duly shown in the book of accounts which were accepted by the A.O. - the additions made by the AO on the basis of surmises and conjectures was rightly deleted by the Ld. CIT(A). - AT

  • Customs

  • Maintainability of appeal before the HC or SC - territorial jurisdiction - the dispute also is with respect to breach of condition of notification which may ultimately lead to subsequent demand of duty or imposition, but that itself cannot be said to be a dispute with respect to valuation - the High Court is wrong in not entertaining the appeal on the ground that the same was not maintainable - SC

  • Applicability of Doctrine of Merger - The doctrine of merger would not apply in this case. This is because the Apex Court while permitting leave to withdraw the appeal has not passed any order on merits. The appeal had not even been admitted. The order of the Apex Court is also not an order rejecting the appeal and, therefore, the said order cannot be said to be an order of affirmance of the order of CESTAT. - HC

  • Demand of differential duty - classification of imported goods - fire sprinklers - It cannot be concluded from the aforesaid Circular that fire sprinklers are excluded from sprinklers. In fact ‘sprinklers’ and ‘drip irrigation system including laterals’ are separated by a semi colon - AT

  • DGFT

  • Allocation of quantity 5841 MT (raw/refined) Sugar by EU for export from India under TRQ for the year 2022-23 & allocation of quantity 8606 MTRV raw cane sugar by USA for export from India under TRQ scheme for US fiscal year 2023 - Public Notice

  • Corporate Law

  • Seeking restoration of name of the Company in the Register of the Companies - shell Company - Section 252(1) of the Companies Act, 2013 - Order of NCLT rejecting the application sustained - AT

  • State GST

  • Guidelines for verifying the Transitional Credit in light of the order of the Hon’ble Supreme Court in the Union of India vs. Filco Trade Centre Pvt. Ltd., SLP(C) No. 32709-32710/2018, order dated 22.07.2022 & 02.09.2022. - West Bengal SGST

  • Clarification on refund related issues - refund of unutilized input tax credit in cases where credit is accumulated on account of rate of tax of inputs being higher than the rate of tax on output supplies i.e. on account of inverted duty structure.

  • Indian Laws

  • Dishonor of Cheque - FIR against the misuse of blank cheques - Undisputedly seven numbers of blank cheques were handed over to the Finance company at the time of disbursement of loan. It is also found that the cheque in question was placed for encashment after the demise of one of the drawer of the cheque and an inflated value has been incorporated in the cheque which is at variance to the amount demanded by way of notice under the SARFAESI Act. - Through investigation is required - Petition dismissed - HC

  • Illegal gratification/bribe - allegation against the person working in Income Tax Office as Tax Assistant - Tax Assistant had no role in the refund of income tax to the assessee except processing the same to the I.T.O - no work was pending with the appellant for which there was no occasion on his part to raise any demand of bribe - the impugned judgment and order of conviction and the sentence passed is hereby set aside - HC

  • IBC

  • Recovery of past dues of Maharashtra State Electricity Distribution Company Limited (MSEDCL) - There is a completely unexplained failure on MSEDCL’s part to lodge its claim within the RP in time. It really had to do very little except lodge its claim. There is the Supreme Court finding in Ghanashyam Mishra [2021 (4) TMI 613 - SUPREME COURT] regarding other claims including from tax authorities standing extinguished after the 2019 amendment. That simply cannot be ignored. - HC

  • Service Tax

  • SVLDRS - This scheme is for recovery of duty as also to recover tax and arrears of deficit amount. The scheme has been enacted with an object and purpose to minimize the tax disputes and to realise the arrears of tax by way of tax in exceptional manner. The scheme is a step towards the settlement or deciding disputed tax/liability. Therefore, the Respondent should consider the Application as filed so that litigation is minimized. - HC

  • Classification of services - canteen services with the factory - outdoor catering services - On plain reading of entry 19A in the Notification dated 22.10.2013 it clearly reveals that the canteen maintained in a factory has been provided with the exemption from payment of service tax. The said Notification nowhere provided that canteen maintained by or run by the factory can only be considered for the benefits of such exemption. - AT

  • CENVAT Credit availed based on the debit note - A perusal of Annexure-3, which is the so-called debit note, which is placed on record, reveals that it does not contain the nature of taxable service per se provided by the other party to the appellant, which is the condition precedent in terms of the proviso to Rule 9(2) ibid. Hence, in the present scenario, the debit note, which is incomplete, cannot be considered as a document specified in Rule 9 ibid. - AT

  • Central Excise

  • Levy of Excise Duty - all types of scraps sold by the appellant value of which is reflecting in the balance sheet - It is clear that the appellant have cleared the scrap which is neither generated from the manufacturing nor generated from the cenvatable input or capital goods. Therefore, the same is clearly not liable to any duty. - AT

  • VAT

  • Violation of principles of natural justice - proof of inter-State trade - submission of C-Forms - In a writ proceeding under Article 226 of the Constitution of India, legality and validity of the assessment proceedings are not ordinarily examined when the statute provides for adequate and efficacious alternative remedy. - HC


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (11) TMI 743
  • 2022 (11) TMI 742
  • 2022 (11) TMI 741
  • Income Tax

  • 2022 (11) TMI 738
  • 2022 (11) TMI 737
  • 2022 (11) TMI 736
  • 2022 (11) TMI 735
  • 2022 (11) TMI 734
  • 2022 (11) TMI 733
  • 2022 (11) TMI 732
  • 2022 (11) TMI 731
  • 2022 (11) TMI 730
  • 2022 (11) TMI 729
  • 2022 (11) TMI 728
  • 2022 (11) TMI 727
  • 2022 (11) TMI 726
  • 2022 (11) TMI 725
  • 2022 (11) TMI 724
  • 2022 (11) TMI 723
  • 2022 (11) TMI 722
  • 2022 (11) TMI 721
  • 2022 (11) TMI 720
  • 2022 (11) TMI 719
  • 2022 (11) TMI 718
  • 2022 (11) TMI 717
  • 2022 (11) TMI 716
  • 2022 (11) TMI 715
  • 2022 (11) TMI 714
  • 2022 (11) TMI 713
  • 2022 (11) TMI 712
  • 2022 (11) TMI 711
  • Customs

  • 2022 (11) TMI 710
  • 2022 (11) TMI 709
  • 2022 (11) TMI 708
  • 2022 (11) TMI 707
  • 2022 (11) TMI 706
  • Corporate Laws

  • 2022 (11) TMI 705
  • 2022 (11) TMI 702
  • Insolvency & Bankruptcy

  • 2022 (11) TMI 704
  • 2022 (11) TMI 703
  • 2022 (11) TMI 701
  • 2022 (11) TMI 700
  • 2022 (11) TMI 699
  • 2022 (11) TMI 698
  • Service Tax

  • 2022 (11) TMI 697
  • 2022 (11) TMI 696
  • 2022 (11) TMI 695
  • 2022 (11) TMI 694
  • 2022 (11) TMI 693
  • 2022 (11) TMI 692
  • Central Excise

  • 2022 (11) TMI 691
  • 2022 (11) TMI 690
  • CST, VAT & Sales Tax

  • 2022 (11) TMI 740
  • 2022 (11) TMI 739
  • 2022 (11) TMI 689
  • 2022 (11) TMI 688
  • 2022 (11) TMI 687
  • 2022 (11) TMI 686
  • 2022 (11) TMI 685
  • Indian Laws

  • 2022 (11) TMI 684
  • 2022 (11) TMI 683
  • 2022 (11) TMI 682
 

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