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Home e-Newsletters Index Year 2022 December Day 23 - Friday

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TMI Tax Updates - e-Newsletter
December 23, 2022

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Cancellation of registration of petitioner - The appeal should not be dismissed without due consideration of the ground taken in the appeal and the delay condonation application - this Court finds that the order passed by the first appellate authority, which is a cyclostyled order, is unsustainable in the eyes of law and same is hereby set-aside. - HC

  • Confiscation of goods alongwith conveyance - Power to invoke section 129 - While a blanket stay of the said order as prayed for cannot be granted, relief regarding release of goods and conveyance could be considered in favour of the petitioner upon imposing conditions. - HC

  • Classification of goods - Walltop Computer roombr - In the instant case the impugned product “roombr” comprises a central processing unit, a Bluetooth keyboard and IR pen to provide interactivity support as an input unit and a projected interactive display as an output unit. - the product squarely gets covered under the category of automatic data processing machines under the tariff heading 8471 41. - AAR

  • Levy of GST - transfer of mobile application software - there will be a continuity of business, as the said part of business is said to be functional and is decided to be transferred as a whole to a new owner, and thus amounts to transfer of a going concern, of the said independent part of the business. - the said activity amounting to 'Services by way of transfer of a going concern, as a whole or an independent part thereof attracts 'Nil' rate of tax without any conditions. - AAR

  • Classification of goods - HSN Code - applicable rate of tax - Raula Gundi - The final product of the Applicant under the brand name 'Raula Gundi' is nothing but “Chewing Tobacco (without lime tube)” - Liable to GST @28% - Compensation Cess of 160% is leviable on it. - AAR

  • Income Tax

  • Incorrect depreciation claim - fractional ownership - real ownership - Merely entering into an agreement or understanding of user of a asset, a License may be created in favour of user, however, that does not vest the user with the interest of any nature akin to owner for the purpose of Section 32(1) of the Act. So also no claim of depreciation beyond the law is allowable on mutual understanding between the owner and the user. - AT

  • Deemed dividend u/s 2(22)(e) - CIT(A), has examined the issue threadbare and has rightly concluded that the amount obtained from Landspace is in the nature of business transaction outside the purview of Section 2(22)(e). Mere declaration in the financial statement of amount received as inter corporate loan is neither here nor there. - AT

  • Unexplained investment u/s 69 - The documents, which were found in the possession of other person, does not bear the name of the assessee, that is, the name of the assessee is not mentioned in the statement of another person. No addition can be made, if documents impounded during survey are unsigned and incomplete. No addition of unaccounted investment can be sustained when Assessing Officer had not made any further investigation. - AT

  • Assessment u/s 144 - Rejection of books of accounts u/s 145(3) - Once the books of accounts and other relevant records was produced by the assessee first time during the appellate proceedings before the CIT(A), the principles of natural justice demands that the other party should be given an opportunity to verify the evidence first time produced at the appellate stage. - AT

  • Claim of expenses as against Nil income - When there is no business existed, in our opinion, the assessee is not entitled to claim deduction under the head “Depreciation, Establishment and General Expenses and Interest on Loan” and resultantly, carrying forward losses. - AT

  • Correct head of income - treatment of profit on transfer of immovable properties - The assignment of debt in favour of another entity partly in exchange of land was integral part of the business activities of the assessee and any gain / loss arising on such an asset should be viewed as business profits only. The situation is no different from a situation wherein the assessee in exchange of loan debts, repossesses the assets of the borrower and sell the same subsequently in discharge of loan assets. Any resultant gains / losses arising therefrom would be part of normal business activities of the assessee. - AT

  • Validity of assessment order passed u/s 153(1) - Period of limitation - In this case, since, the Assessing Officer cannot invoke jurisdiction u/s.144C(1) and pass draft assessment order, question of extended 12 months period cannot be given to the Assessing Officer. Therefore, we are of the considered view that final assessment order passed by the Assessing Officer u/s.144C(3) r.w.s 143(3) of the Act, dated 28.02.2017 is barred by limitation, because time limit available for completion of assessment u/s.143(3) is 31.12.2016. - AT

  • Customs

  • Penalty u/s112(a), 112(b) & 114AA of the Customs Act, 1962 - fraudulent import of vehicles declared as brand new vehicles of foreign origin - the proceeding is hit by the bar of limitation. Availing of benefit of Notification, which the Revenue subsequently formed an opinion was not available, cannot lead to the charge of misdeclaration or mis-statement, etc. and even if an importer has wrongly claimed the benefit of the exemption, it is for the department to find out the correct legal position and to allow or disallow the same - the quantum of penalty is reduced @10% of the penalty imposed in each case. - AT

  • IBC

  • Initiation of CIRP - the Corporate Debtor has tried to take advantage of their own wrong of being lackadaisical in reconciling the accounts in spite of nearly 30 requests made by the Operational Creditor to do so. In the entire discussion by the Adjudicating Authority, it is found that no notice has been taken in respect of repeated and multiple reminders sent by the Operational Creditor to the Corporate Debtor in this regard including undertaking visits to the office of the Corporate Debtor. - NCLT directed to pass order for admition of the application - AT

  • Delay in refiling of 321 days - Addition of new facts in the course of refiling which could not have been a part of the original version of the Appeals when it was filed in November 2021 thereby changing the frame of the Appeals as a clever manoeuvre has also been alleged by the Respondents. Though the allegation made is serious, however, since it has been admitted to be a mistake, we are not taking cognisance of it and refrain from making any comments thereon. - AT

  • Service Tax

  • SVLDR Scheme - refund of pre-deposit - This amount remained as the Revenue deposit with the Department and was never adjusted. Further, this amount is not a part of the admitted tax - the Adjudicating Authority is directed to grant refund - AT

  • Refund of service tax - contention of the appellant is that the tax having been paid under mistake - works contracts which is in the nature of original works - they paid tax on the balance 60% as their own liability (which was not payable) - the rejection of refund claim on the ground of limitation is not sustainable. - AT

  • Central Excise

  • Refund of duties discharged during investigation into undervaluation of physician samples - duty liability had been discharged at the option of the appellant; in the revised appellate scheme, prescribed pre-deposit pending disposal was the sole mandate of law. - Appeal dismissed - AT

  • Clandestine removal - The tax liability has been fastened by resort to assumptions driven by absence of satisfactory explanation. Clandestine clearance, being provable only by circumstantial evidence, should be determined by reference to circumstances including complexion of the transactional engagement in which the submissions made in defence are required to be dealt with. The lack thereof in the adjudication order impugned here must be made good. - AT

  • VAT

  • Refund claim - export of goods - excess carried forward in the annual return - Rule 41(4) of the Haryana Value Added Tax Rules, 2003 - no refund was allowed as the petitioner had not claimed the same in the annual return filed in Form VAT R-2. Rather the petitioner had claimed excess carried forward in his annual return and the same was allowed. There was no occasion for Rule 42 to come into operation in such facts and circumstances. - HC


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2022 (12) TMI 958
  • 2022 (12) TMI 957
  • 2022 (12) TMI 956
  • 2022 (12) TMI 955
  • 2022 (12) TMI 954
  • 2022 (12) TMI 953
  • 2022 (12) TMI 952
  • 2022 (12) TMI 951
  • 2022 (12) TMI 950
  • 2022 (12) TMI 949
  • Income Tax

  • 2022 (12) TMI 948
  • 2022 (12) TMI 947
  • 2022 (12) TMI 946
  • 2022 (12) TMI 945
  • 2022 (12) TMI 944
  • 2022 (12) TMI 943
  • 2022 (12) TMI 942
  • 2022 (12) TMI 941
  • 2022 (12) TMI 940
  • 2022 (12) TMI 939
  • 2022 (12) TMI 938
  • 2022 (12) TMI 937
  • 2022 (12) TMI 936
  • 2022 (12) TMI 935
  • 2022 (12) TMI 934
  • 2022 (12) TMI 933
  • 2022 (12) TMI 932
  • 2022 (12) TMI 931
  • 2022 (12) TMI 930
  • 2022 (12) TMI 929
  • 2022 (12) TMI 928
  • 2022 (12) TMI 927
  • 2022 (12) TMI 926
  • 2022 (12) TMI 925
  • 2022 (12) TMI 924
  • 2022 (12) TMI 923
  • 2022 (12) TMI 922
  • 2022 (12) TMI 921
  • 2022 (12) TMI 920
  • Corporate Laws

  • 2022 (12) TMI 919
  • Insolvency & Bankruptcy

  • 2022 (12) TMI 918
  • 2022 (12) TMI 917
  • 2022 (12) TMI 916
  • 2022 (12) TMI 915
  • 2022 (12) TMI 914
  • PMLA

  • 2022 (12) TMI 913
  • Service Tax

  • 2022 (12) TMI 912
  • 2022 (12) TMI 911
  • 2022 (12) TMI 910
  • 2022 (12) TMI 907
  • Central Excise

  • 2022 (12) TMI 909
  • 2022 (12) TMI 908
  • 2022 (12) TMI 906
  • 2022 (12) TMI 905
  • 2022 (12) TMI 904
  • 2022 (12) TMI 903
  • 2022 (12) TMI 902
  • 2022 (12) TMI 901
  • CST, VAT & Sales Tax

  • 2022 (12) TMI 900
  • 2022 (12) TMI 899
 

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