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Home e-Newsletters Index Year 2019 May Day 17 - Friday

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TMI Tax Updates - e-Newsletter
May 17, 2019

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Detention of goods - absence of valid E-way bills - procedural irregularity or minor errors - Goods to be released after furnishing of Bank Guarantee(s) equal to 100% of tax.

  • Input Tax Credit - lease rent during pre-operative period for the leasehold land - appellant is constructing the Eco Resort on his own account in course of furtherance of its business of providing hospitality service - hence Section 17(5)(d) restricts the Appellant availing input tax credit on lease rental paid

  • Validity of SCN - Detention of goods with vehicle - liability to pay tax, penalty and other charges - Writ against SCN - It is only if it is exfacie evident, from a bare reading of the SCN, that it suffers from inherent lack of jurisdiction, would this Court be justified, in exercising jurisdiction under Article 226 of the Constitution of India to interfere.

  • Rate of GST - Centage charges/Consultancy charges - Construction Agency/Project Management Consultant - pure services provided to the State Government by way of activity in relation to function entrusted to a Panchayat/Municipality under 243G /243W of the Constitution is exempted from goods and services tax

  • Classification of supply - The provision of services of supply of medicines, consumables, surgical items, items such as needles, reagents etc used in laboratory, room rent to in-patients and patients admitted for a day procedure such as IVF for diagnosis or treatments is a composite supply and can be considered as services ancillary to the provision of health care services will be eligible for exemption

  • Income Tax

  • Revision u/s 263 by Pr. CIT - claim of deduction u/s 10A(lA) - It remains an undisputed fact that the AO had made adequate enquires for adopting one of permissible view for allowing the assessee’s claim for exemption u/s 10A - assessment order cannot be treated as erroneous and prejudicial to the interest of the revenue unless the view taken by the AO is not unacceptable in law

  • Addition of unexplained share application money u/s 68 - Apart from furnishing the financial statement, bank statements and ITRs assessee could not produce any of the Principal Officer of the investor company - Genuineness of the transactions and also the creditworthiness of both the share applicants has not proved as they have no regular means to invest - addition justified

  • Levy of penalty u/s 271B - no initiation of penalty u/s 271B despite higher gross receipt was available to the AO while passing the original assessment order - penalty proceedings initiated in order passed in remanded matter by Tribunal after a long gap of more than 4 ½ years from the date of original assessment is barred by limitation

  • TP Adjustment - writ against DRP order - admission of additional documents and seek a remand report from the AO can only mean that the panel was of the view that further examination of the issue by the Department was called for - if not satisfied with remand report of TPO, Panel could well have sought a clarification, or directed the officer to carry out further verification - remanded for de novo decision of DRP

  • Rectification of mistake u/s 254 - ex-parte order on merit - assessee produced certain records after ex-parte order - factual aspect whether the assessee has received any income from hire charges is very crucial for deciding the issue of claim of higher depreciation on these machinery and vehicle - Tribunal is recalled its order with cost of ₹ 5000/-

  • Taxability of shares premium u/s 56(2)(viib) - AO was required to undertake the exercise of fact finding by determining the FMV of the Shares in question as per Explanation to Section 56(2)(viib) - remanded back to AO because such exercise not having been done - the Assessee will be free to raise all factual and legal contentions including treating said amount as 'gift' from mother to daughter.

  • Customs

  • Smuggling of Cigarettes - whether CHA is liable for penalty u/s 112(a) - When there is no evidence to establish that the appellant had prior knowledge of the illegal import of cigarettes and also when there is no evidence to establish any wrongful intent on the part of the appellant then there is no justification to impose penalty.

  • Exemption from SAD - Import of Microprocessors - if the goods are meant for retail sale then obliviously they cannot be meant for fitment within the CPU Housing/ laptop Body - Once the importer claims complete exemption from payment of CVD in terms of the Central Excise Notification referred above he is excluded from claiming exemption from payment of Special Additional Duty of Customs under Notification No 29/2010-Cus.

  • Valuation of duty free imports - Advance License - In absence of any correction/ amendments in the license, the value of imported goods sought to be exempted by the said license cannot be suo motto altered by the Custom Authorities.

  • Classification of imported goods - Creative Toys Modelling Clay - Heading 34070010 is more specific for modeling pastes which in our view will include the clays which are used for making models for amusement of children.

  • Corporate Law

  • Winding up of the Company - Non payment of dues - One thing strikes out immediately. If the goods supplied by the petitioner remained defective, the respondent ought to have returned the goods back to the petitioner. It cannot continue to retain the goods without making the full the payment thereof.

  • Indian Laws

  • Transfer of property / assets - with the merger of property also vested with the petitioner along with other assets of Sharpedge. This clearly amounted to transfer of the subject property - But in case of transfer of shares / dilution of the share capital by the shareholders cannot be held as transfer of assets of company to another.

  • SEBI

  • Violation of the Takeover Regulation - holding increased from 24.74% to 25.04% - violation of the Takeover Regulation is only to the extent of 0.04% and that too due to transfer of shares between the promoters via open market - direction of the WTM to make public announcement to acquire shares would be disproportionate - directed to transfer 0.04 % shares through open market

  • Service Tax

  • Refund of accumulated CENVAT credit - export of service - travel benefits to extend to employees on vacation such as leave or home travel concession are only excluded from the purview of availment of CENVAT credit and services which are used primarily for personal use or consumption of any employee is also excluded. - In other words, services which are related to the out put services are not excluded by this definition. - Refund allowed.

  • Scope of SCN - Management, Maintenance and Repair Services - the appeal filed by revenue refers to 94 contracts that were subject matter of show cause notice, whereas we found that only 12 were referred to in show cause notice - Revenue failed to produce the basis on which order has been passed - Demand set aside.

  • CENVAT Credit - merely because the Mumbai office has not obtained centralized registration under the Relevant Rules, CENVAT credit availed on the service tax paid on input services which are undisputedly utilized by the appellant in providing the taxable output services cannot be disallowed - credit allowed.

  • Central Excise

  • CENVAT Credit - Just because the Thermal Power Plant has been set up on the plot leased out by the Appellant, it would not entitle them to the CENVAT Credit in respect of the inputs and capital goods procured by the lessor.

  • Supply of goods against international competitive bidding (ICB) - seamless pipes - benefit of N/N. 6/2006-C.E. - goods were not supplied directly to the contractor - the supply of the goods to the project in the present circumstances cannot disentitle them from the benefit of notification.

  • Extended period of limitation - Since the said demand was confirmed solely based on the audit objection and no supporting evidences were produced by the department, alleging undervaluation of the cloth, the extended period of limitation cannot be sustained for confirmation of the adjudged demand

  • Valuation - PVC pipes - determination of correct transaction value as per Section 4(1)(a) of the Central Excise Act, 1944 - price at which the goods were agreed to be supplied by the respondent to MID, Jharkhand State Govt. be the correct transaction value and duty is required to be paid on same - transaction between the respondent and the dealers cannot be considered as true transaction value

  • Process amounting to manufacture or not - diluting of raw material namely, “STYROFAN D 623” and “APCOTEX TSN 100” with water - characteristics, chemical composition, use etc. continued to remain same even after addition of water though there could be some change in the quality and the efficiency in use of the product but that cannot be the sole criteria for considering dilution as a process of ‘manufacture’.

  • Duty & Penalty for clandestine manufacture and removal of goods - it is well settled legal position that the allegation of manufacture and clandestine removal of goods without payment of duty being a serious charge, the burden of proof is on the Revenue - no sufficient cause has been made out by the Revenue so as to necessitate the interference of this bench in the impugned order

  • VAT

  • Revision of assessment order - inter-state sales - it is no doubt true that the burden is on the petitioner, u/s 16 of the A.P. VAT Act, to show that the turnover, disclosed in the SCN, includes inter-State sales, exempt sales etc., on which VAT cannot be levied - but demand can-not imposed by authority without calling upon the petitioner to furnish the books of accounts, sales invoices etc - remanded for reconsideration

  • Input Tax Credit - Transitional Relief (TGST) was disallowed as ITC was not carried forward in the return filed in June, 2017 by dealer - later, the dealer filed TRAN-1 claiming the amount - AO shall first scrutinize the revised return and ascertain whether the Form-501 TDS certificates are genuine and If they are genuine, the petitioner is entitled to ITC

  • Denial of Input Tax Credit (ITC) - Section 11(7A) of the GVAT Act envisages disallowance of tax credit in excess of the amount of tax paid in respect of the same goods - to disallow tax credit on any purchase, it has to be established that the tax has not been paid by the vendor - remanded to hear appeal without pre-deposit


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2019 (5) TMI 964
  • 2019 (5) TMI 963
  • 2019 (5) TMI 962
  • 2019 (5) TMI 961
  • 2019 (5) TMI 960
  • 2019 (5) TMI 959
  • 2019 (5) TMI 958
  • 2019 (5) TMI 957
  • 2019 (5) TMI 932
  • Income Tax

  • 2019 (5) TMI 954
  • 2019 (5) TMI 953
  • 2019 (5) TMI 952
  • 2019 (5) TMI 951
  • 2019 (5) TMI 950
  • 2019 (5) TMI 949
  • 2019 (5) TMI 948
  • 2019 (5) TMI 947
  • 2019 (5) TMI 946
  • 2019 (5) TMI 945
  • 2019 (5) TMI 944
  • 2019 (5) TMI 943
  • 2019 (5) TMI 942
  • 2019 (5) TMI 941
  • 2019 (5) TMI 940
  • 2019 (5) TMI 939
  • 2019 (5) TMI 938
  • Customs

  • 2019 (5) TMI 931
  • 2019 (5) TMI 930
  • 2019 (5) TMI 929
  • 2019 (5) TMI 928
  • 2019 (5) TMI 927
  • 2019 (5) TMI 926
  • 2019 (5) TMI 925
  • 2019 (5) TMI 924
  • 2019 (5) TMI 923
  • 2019 (5) TMI 922
  • Corporate Laws

  • 2019 (5) TMI 921
  • Securities / SEBI

  • 2019 (5) TMI 937
  • Insolvency & Bankruptcy

  • 2019 (5) TMI 920
  • 2019 (5) TMI 919
  • 2019 (5) TMI 918
  • Service Tax

  • 2019 (5) TMI 917
  • 2019 (5) TMI 916
  • 2019 (5) TMI 915
  • 2019 (5) TMI 914
  • Central Excise

  • 2019 (5) TMI 956
  • 2019 (5) TMI 955
  • 2019 (5) TMI 936
  • 2019 (5) TMI 935
  • 2019 (5) TMI 913
  • 2019 (5) TMI 912
  • 2019 (5) TMI 911
  • CST, VAT & Sales Tax

  • 2019 (5) TMI 934
  • 2019 (5) TMI 933
  • 2019 (5) TMI 910
  • 2019 (5) TMI 909
  • 2019 (5) TMI 908
  • 2019 (5) TMI 907
  • Indian Laws

  • 2019 (5) TMI 906
 

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