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Home e-Newsletters Index Year 2022 December Day 16 - Friday

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TMI Tax Updates - e-Newsletter
December 16, 2022

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Period of limitation for retaining the seized goods - Seeking return of his laptop, computer, documents and other things which were seized during search proceedings - various allegations of IGST refund - the ‘documents or book or things’ can be retained for a maximum period of four and half years, within which period the notice has to be issued, plus thirty days from the date of erroneous refund. In the present case, the said period had not yet lapsed. - HC

  • Blocking the Input Tax Credit (ITC) - Scope of Section 16(2) read with Rule 37 - Non payment of consideration within 180 days u/s 16(2)(d) of CGST Act - The respondents have completely misdirected themselves in proceeding on the basis that unless a taxpayer pays the supplier, he is ineligible to avail of the ITC lying to his credit in the ECL. - The action of the respondents to continue blocking the ITC available in the ECR of the petitioner for such extended period is without the authority of law. - HC

  • Cancellation of registration - non filing of GST Returns - Petitioner contended that, since he was out of business, the return after September, 2018 could not be filed. - the petitioner appears to be someone, who is keen to continue his business and the State’s obligation is to ensure the implementation of the law, but at the same time not to thwart, in any manner, the business prospects of the citizens and, therefore, acceding to the request, we are required to allow this petition. - HC

  • Income Tax

  • Short payment of TDS u/s 195 - error in depositing TDS under the wrong challan - office of DCIT (OSD) TDS has escalated the issue to CPC – TDS for either necessitating the required changes in the challan from the backend or enabling the system to allow the TDS–AO to do the same from his login at TRACES AO – Portal. Therefore, we deem it appropriate to direct the concerned authority to make every possible endeavour of carrying out the necessary correction in the challan within a period of 2 months - AT

  • Disallowance u/s 40(a)(ia) for non-deduction of tax at source (TDS) - assessee in default - Assessee has paid interest u/s 201(1A) for non-deduction/short deduction of tax - the assessee having paid the interest, the assessee cannot be construed as an assessee in default. Therefore, the provision of Section 40(a)(ia) cannot be applied in assessee’s case. - AT

  • Exemption u/s 11 - charitable activity or not - medical aid / facilities to the poor / needy persons - running the activities on commercial basis - The assessee had only provided the treatment to 65 indoor patients for an amount of Rs.84,48,709/- and 5,569 outdoor patients for Rs.39,65,102/- on concessional rates and the said amount is a meagre amount when compared to its total revenue collection of the assessee i.e., Rs.141.90 crore for the period under consideration. By that standard alone the activities of the assessee cannot be said to be charitable activities. AT

  • Addition of the net benefit accruing to the assessee on account of CCM - shifting of profit to loss - Client Code Modification (CCM) - It is settled principle of law that concurrent findings of the authorities cannot be interfered with without sufficient and just reason or any material irregularities in the finding being pointed out by other side. - AT

  • Assumption of jurisdiction under 153C - assessment in search cases - Even as per the pre-amended provisions of Section 153C, AO has to record satisfaction to the effect that seized material "belongs" or "belongs to" other person. In this case, the A.O. has not put on record that any material seized during the course of search does belong to the assessee. However seized materials related to other third party. Therefore in our considered view, the invocation of proceedings u/s. 153C is against the provisions of law. - AT

  • Penalty u/s 271(1)(c) - bonafide belief - interest income earned during the year on fixed deposits and savings bank accounts were not offered to tax - Assessee contended that, the TDS figure and the corresponding income relating to second, third and fourth quarter of the relevant financial year were made available on the 26AS site only in September, 2017 by ICICI Bank. The aforesaid explanation of the assessee appears to be believable in view of the certificate issued by the concerned bank on 28th April, 2018. - there was reasonable cause in terms with section 274 - AT

  • Addition u/s 56(2)(vii)(b) - AO referred the valuation of property to Valuation Cell and DVO - difference between the DVO value and consideration paid for purchase of property should be assessed as income of the purchasers in terms of s 56(2)(vii)(b) - AO after considering relevant facts has rightly made addition towards differential consideration u/s 56(2)(vii)(b) - AT

  • Income accrued in India - income from rented properties held by the appellant in Australia and UK - right of the resident country to tax its residents - the expression “may be taxed” cannot be construed to mean “shall be taxable only in the resident state”, unless it is expressly stated. Provisions of Section 90(1)(a)(i) is clearly applicable to the facts of the case. - AT

  • Customs

  • Rejection of request for waiver of interest while granting immunity from penalty and prosecution - order of Settlement Commission - the liability of the Petitioner to pay interest in this case originated from the bond furnished by it and it was rightly held by the Settlement Commission as being contractual. The Commission has rendered the finding that liability of the Petitioner to pay interest was under the bond; therefore, Settlement Commission has no jurisdiction to waive interest liability - HC

  • Increase in rate of customs duty on import of dry dates - Effective date - Filing of Bill of Entry prior to the issue of notification - Revenue is not in a position to controvert that the petitioner has placed the import orders prior to 16.02.2019 and has also received goods on or before 16.02.2019 and in any case prior to issuance of the impugned notification which was uploaded on 16.02.2019 at 8.45 p.m. - writ petition is allowed - HC

  • Levy of penalty - Mis-declaration of goods - Self assessment of Bill of entry - While the importer is required to subscribe to the truth of the contents of the Bill of Entry, it refers to facts and not opinions - Self-assessment is subject to any reassessment by the proper officer. Self-assessment can also be appealed against to the Commissioner (Appeals). They can assess duty as per their understanding and the officers are free to reassess it as per Section 17(4). - Mis-classification or incorrect assessment of duty does not amount to mis-declaration in the Bill of Entry nor does it attract any penalty. - No penalty - AT

  • Corporate Law

  • NCLT - reappointment of the petitioner - judicial member of the National Company Law Tribunal - Merely because the petitioner has shown her willingness to be considered, merely because she is liable to be considered and merely because she has opted for reappointment, could not be ground to seek writ from the Court that her appointment process may be completed. The petitioner's case could be at the best considered along with other aspiring candidates in accordance with law and on its own merits. - HC

  • Disqualification of the Petitioners - Deactivation of Director Identification Number (DIN) and the Digital Signature Certificate (DSC) of the Petitioners - introduction of the CFSS scheme - In furtherance of the purpose of this scheme, directors of struck off companies who seek to be appointed as directors of other/new companies, ought to be provided an opportunity to avail of this scheme, provided that they have undergone a substantial period of their disqualification. - HC

  • Indian Laws

  • Dishonor of cheque - accused was acquitted - Preconditions for a valid cheque - The complainant unilaterally has put in dates on the cheques without the authority of the accused and even by not informing him. So, it amounts to material alterations. - If it is so such negotiable instrument becomes void. - HC

  • IBC

  • Initiation of CIRP - Period of limitation - approval of Resolution Plan - Distribution of the amount to the Financial Creditors as per the decision of the CoC cannot be permitted to be challenged. - AT

  • CIRP - Fairness of Resolution plan - appellant being Association of the ‘Homebuyers’ - plan challenged on various issued including, the ‘Resolution Plan’ amount being lower than the ‘Liquidation Value’, ‘exorbitant interest charges’ by the ‘Financial Creditors’ in their claims, denial of claims of the ‘Appellant’ etc. - This ‘Appellate Tribunal’, does not find ‘any material irregularity’ or ‘patent illegality’, in the ‘impugned order’ - AT

  • Initiation of CIRP - Demand Notice on unpaid Operational Debt - existence of dispute - When we look into the contents of allegations made in the Reply Notice, it is clear that Reply notice raises substantial and genuine issues to oppose the claim of the Operational Creditor’s amount due. - Present is a case where it cannot be said that defence taken by the Corporate Debtor in Reply Notice is a moonshine defence unsupported by any evidence. - NCLT ought not to have admitted the Section 9 Application. - AT

  • CIRP - bonafide nature of the transactions or not - recovery from the ex-directors of the corporate debtor - forensic and transaction audit of the corporate debtor was conducted - The transaction was done in the normal course of business to let the corporate debtor function in the changed business environment. Such an arrangement, even though with related party, cannot be termed as preferential transactions done to defraud the creditors of the corporate debtor. - AT

  • CIRP proceedings - Infirmities and illegalities committed by the RP - it is evident that the RP had not taken any reasonable step to get the CD as going concern which is mandated as per Section 25(2)(h) or he acted in accordance with Section 24 of the Code and as such there is no reason to allow the impugned order to further continue. - the holding of the CoC Meeting in the premises of the Financial Creditor and also joint filing of the reply by RP and financial creditor also reflects that something was going on in between the parties. - AT

  • Initiation of CIRP - inter corporate deposit - Proof of debt - Appellant failed to produce any proof of the RTGS by way of bank statement indicating that the amount has in fact been transferred from its account to the account of the Corporate Debtor - the intercorporate deposit is a loan is not substantiated by the Appellant - NCLT rightly dismissed the application - AT

  • PMLA

  • Provisional attachment - Expiry of 80 days mandatory period for confirmation of the provisional attachment u/s 5 of PMLA - Applicability of decision of Supreme Court for exclusion of certain period on account of COVID-19 pandemic - By virtue of Section 5(3) of the PMLA, the order of attachment under Section 5(1) ceases to have effect on expiry of the prescribed period. Thus, for such a provision, the order of the Hon’ble Supreme Court passed in SMW (C) No. 3 of 2020 extending the period for filing the pleading will not apply. - HC

  • Service Tax

  • Rejection of SVLDRS declaration - quantification qualifies as quantification before 30.6.2019 under SVLDRS, 2019 or not - Claim of quantification based on letter issued by the Audit Team or Investigation team - it is not the self declared quantification of a Declarant of “tax dues” which will entitle the benefit of the aforesaid scheme. The scheme brings a closure to the tax dispute with issuance of certificate under Section129 of SVLDRS, 2019. It has to be a quantification which ought to have been accepted by the Investigating Wing or Audit Wing of the Department. - HC

  • Demand of service tax - providing real estate agent services - self service or not - Extended period of limitation - It is clear that the amount received by the appellant as development charges which are nothing but in the form of profit, which will not get covered under the category of real estate agent services. - AT

  • Refund of service tax wrongly / under a mistake of law - Period of limitation - Club or Association Services - principle of mutuality - Since Service Tax received by the concerned authority is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the authority concerned has no right to retain the same. - AT

  • Demand of services on ‘surrender charge’ retained by the appellant upon withdrawal of ‘insured’ from ‘unit linked insurance policies (ULIP)’ - voluntary withdrawal from coverage under ‘unit linked insurance policy (ULIP)’ - The ‘surrender value’ so retained had already been subjected to tax as ‘premium’ for rendering of taxable service and not liable to be taxed again for that very reason upon ceasing to be provision service - AT

  • VAT

  • Purchase of gold for manufacturing of jewellery and ornaments - The assessing authority disallowed the claim for exemption on the sole ground that the purchasing dealer namely the writ petitioner did not manufacture the jewellery in the State of West Bengal but had manufactured the same at Coimbatore in Tamil Nadu state. - The intention, the object and the purpose of such exemption cannot be interpreted by referring to Rule 26A which operates in entirely different field. - Benefit rightly denied - HC

  • Exemption from central sales tax (CST) - transit sale - Petitioner had effected sales by transfer of documents of title of the goods during their movement from one State to another - Section 6(2) of the CST Act. - the law is now well settled that the tribunal was not supposed to decide an issue which was not the case of the revenue. - HC


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (12) TMI 654
  • 2022 (12) TMI 653
  • 2022 (12) TMI 652
  • Income Tax

  • 2022 (12) TMI 656
  • 2022 (12) TMI 651
  • 2022 (12) TMI 650
  • 2022 (12) TMI 649
  • 2022 (12) TMI 648
  • 2022 (12) TMI 647
  • 2022 (12) TMI 646
  • 2022 (12) TMI 645
  • 2022 (12) TMI 644
  • 2022 (12) TMI 643
  • 2022 (12) TMI 642
  • 2022 (12) TMI 641
  • 2022 (12) TMI 640
  • 2022 (12) TMI 639
  • 2022 (12) TMI 638
  • 2022 (12) TMI 637
  • 2022 (12) TMI 636
  • 2022 (12) TMI 635
  • 2022 (12) TMI 634
  • 2022 (12) TMI 633
  • 2022 (12) TMI 632
  • 2022 (12) TMI 631
  • 2022 (12) TMI 630
  • 2022 (12) TMI 629
  • 2022 (12) TMI 628
  • 2022 (12) TMI 627
  • 2022 (12) TMI 626
  • Customs

  • 2022 (12) TMI 625
  • 2022 (12) TMI 624
  • 2022 (12) TMI 623
  • 2022 (12) TMI 622
  • 2022 (12) TMI 621
  • Corporate Laws

  • 2022 (12) TMI 655
  • 2022 (12) TMI 620
  • 2022 (12) TMI 619
  • Insolvency & Bankruptcy

  • 2022 (12) TMI 618
  • 2022 (12) TMI 617
  • 2022 (12) TMI 616
  • 2022 (12) TMI 615
  • 2022 (12) TMI 614
  • 2022 (12) TMI 613
  • 2022 (12) TMI 612
  • 2022 (12) TMI 611
  • 2022 (12) TMI 610
  • 2022 (12) TMI 609
  • 2022 (12) TMI 608
  • 2022 (12) TMI 607
  • PMLA

  • 2022 (12) TMI 606
  • 2022 (12) TMI 605
  • Service Tax

  • 2022 (12) TMI 604
  • 2022 (12) TMI 603
  • 2022 (12) TMI 602
  • 2022 (12) TMI 601
  • 2022 (12) TMI 600
  • 2022 (12) TMI 599
  • Central Excise

  • 2022 (12) TMI 598
  • CST, VAT & Sales Tax

  • 2022 (12) TMI 597
  • 2022 (12) TMI 596
  • 2022 (12) TMI 595
  • 2022 (12) TMI 594
  • Indian Laws

  • 2022 (12) TMI 593
 

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