This weekly round-up analytically summarises the key stories related to the Supreme Court and High Court reported at Taxscan.in during the previous week from March 4 to March 11, 2023.
Discriminatory proceedings of claiming differential duty on Emergency Lamps: Madras HC grants relief to Importer-Manoj Kumar Dhariwal vs The Assistant Commissioner of Customs-CITATION: 2023 TAXSCAN (HC) 507
In a recent judgement, the Madras High Court (HC) granted relief to the importer when discriminatory proceedings of claiming differential duty on emergency lamps against the importer assessee.
Further held that no prejudice would be caused to the respondents if such a direction is issued as the respondents will be getting revenue given the deposit made by the petitioner. The writ petition was allowed by directing the petitioner to deposit with the first respondent a sum of Rs.2,22,427/- within a period of four weeks from the date of receipt of a copy of this order.
Travelling without proper E-Way Bill attracts Penalty: Calcutta HC-Pushpa Devi Jain vs Assistant Commissioner of Revenue-CITATION: 2023 TAXSCAN (HC) 502
In a recent judgement the Calcutta High Court ruled that travelling without proper E-way bill attracts penalty.
The Court also observed that “The State is no way responsible for the delay in movement of the goods of the petitioner. Apart from a bald statement that the vehicle broke down in the midst of the journey, there is no document in support of such a statement. The practice and procedure to obtain waybills electronically from the portal suggests that there is minimal manual interference and there is no scope to exercise discretion at any stage.”
Covid Pandemic Not a Reason to Ignore GST Proceedings and Virtual Hearings: Calcutta HC dismisses Petition-Debabrata Das vs Additional Commissioner-CITATION: 2023 TAXSCAN (HC) 510
The Calcutta High Court recently refused to quash and set aside the order against the assessee passed by the Additional Commissioner, Central Goods & Services Tax ( CGST ) and Central Excise as the non-appearance of assessee was found to be non-bonafide.
It was further observed by the Single Bench of Justice Amrita Sinha that “The conduct of the petitioner does not appear to be a bona fide one. At such a belated point of time, the Court is of the opinion that the matter is not required to be remanded back to the authority for reconsideration.” The writ petition was thereby dismissed, in light of the above observation.
No Mandatory Personal Hearing granted u/s 75(4) of GST Act: Madras HC quashes Assessment Order-Sri Gayathri Agencies vs State Tax Officer- CITATION: 2023 TAXSCAN (HC) 501
The Madras High Court quashed assessment order on the ground that no mandatory personal hearing granted under Section 75(4) of the GST Act, 2017.
The Bench also noted that “For the foregoing reasons, the impugned assessment order passed in respect of the assessment year 2017-18 is hereby quashed and the matter is remanded back to the respondent for fresh consideration, on merits and in accordance with law.”
Writ Jurisdiction cannot be Invoked to Challenge Validity of SCN based on Facts : Bombay HC-Sahjeevan Co-operative Housing Society Limited vs Principal Commissioner of Income Tax-CITATION: 2023 TAXSCAN (HC) 503
The Bombay High Court has recently observed that a re-assessment made in spite of the escaped assessment amount being less than Rs. 50 Lakh is invalid in the eyes of law.
However, the Bench of Justice S G Chapalgaonkar and Justice Mangesh S Patil pointed out that, “When the challenge to the show-cause notice is based on disputed questions of facts, this Court would be slow in entertaining the writ petition in exercise of jurisdiction under Article 226 of the Constitution of India particularly, when decision of authority would be susceptible to appeal in terms of Section 246 of the Income Tax Act.”
Failure to prove Job Work charges Claimed under P&L A/c is Bogus: Delhi HC Set asides Revision Order-R.K JAIN INFRA PROJECTS PVT. LTD Vs PR. COMMISSIONER OF INCOME TAX-CITATION: 2023 TAXSCAN (HC) 509
Delhi High Court (HC) presided by Justices Rajiv Shakdher and Tara Vitasta Ganju set aside the revision order of the Principal Commissioner of Income Tax (PCIT) and upheld the decision of the Income Tax Appellate Tribunal (ITAT).
The division bench of the Delhi High Court ruled that the PCIT’s justifications for overturning the assessment order could not be upheld and that the assessment order accepting the stated job work charges should stand.
Writ Jurisdiction can be Invoked in view of Non-Constitution of GST Tribunal: Madras HCM/s.Veerapandi Common Effluents Treatment Plant Ltd vs Assistant Commissioner of State Taxes-CITATION: 2023 TAXSCAN (HC) 500
A Single Bench of the Madras High Court noted that Writ Jurisdiction can be Invoked in view of Non-Constitution of GST Tribunal.
Hence the Court directed the petitioner to file a separate Writ Petition, challenging the order of the Appellate Authority viz., Deputy Commissioner (ST) GST – Appeal, within a period of two weeks from the date of receipt of a copy of the order.
Kinley Water is “Water”, Not Aerated or Mineral Water, No Sales Tax: Orissa HC-State of Odisha vs M/s. Hindustan Coca-Cola Beverages Pvt. Ltd-CITATION: 2023 TAXSCAN (HC) 497
In a significant case the high court of Orissa held that Kinley water is water not aerated or mineral water, hence no sales tax can impose.
After considering the contentions of the both parties, The Coram of Justice Murahari Sri Raman dismiss the revision petition filed by the appellant and observed that, Dismiss the revision petition filed by the appellant and observed that the competing entries, viz., Entry 39 of the Tax-free List vis-a-vis Entry 4 of Taxable List, do not confine the item to “water” simpliciter for classification. Also even in the filtering process adopted in public distribution systems or at different places, some gasses may be used or interacted with water which does not convert the drinking water as “aerated water”.
Non-Submission of reply to SCN is not a valid ground for Cancellation of GST Registration: Allahabad HC-M/S Agarwal Construction Company vs Commissioner State Tax -CITATION: 2023 TAXSCAN (HC) 499
The Allahabad High Court (HC) in its significant judgement has held that non-submission of reply to Show Cause Notice ( SCN )is not a valid ground for cancellation of GST registration.
Justice Vivek Chaudhary observed that the non-submission of a reply to the show cause cannot be a ground for cancellation of the registration and the benefit of the order dated 26.9.2022 passed in Writ Tax No.145 of 2022, shall also be made available to the present petitioner. While allowing the petition the Court set aside the order and the petitioner is permitted to appear before the respondent along with the reply to show cause notice and the certified copy of the order within three weeks.
Valid E-way Bill Mandatory For Transporting Goods under GST Law, Transporter Duty bound to Extend EWB on its Expiry During Transportation: Calcutta HC-Abinash Kumar Singh vs State of West Bengal & Ors-CITATION: 2023 TAXSCAN (HC) 498
The West Bengal Goods and Services Tax ( WBGST ) Act’s section 129 penalty was imposed by the appellate authority, and the Calcutta High Court (HC), presided over by Justice Amrita Sinha, upheld this decision.
The bench stated that although the petitioner could or might not bear direct blame for the delayed gate pass issuing, he is unquestionably at fault for conveying goods without a valid E-way bill. The HC observed that the penalty was properly levied by the authorities in accordance with section 129 of the WBGST Act.
Transportation of Goods delayed due to delay in issuing gate Pass at Checkpost, Fresh E-Way Bill is Mandatory if Goods can’t be delivered on time: Calcutta HC-Abinash Kumar Singh vs State of West Bengal & Ors-CITATION: 2023 TAXSCAN (HC) 460
In a recent case, the Calcutta High Court (HC)held that a fresh E -way billis mandatory if goods can’t be delivered on time due to a delay in issuing gate passes at the check post.
Justice Amrita Sinha observed that the law prescribes the generation of fresh e-way bills for the transportation of goods if the same cannot be delivered on time. Further held that no relief can be granted to the petitioner since the appellate authority considered all the grounds raised by the petitioner in the appeal and passed an order applying the corresponding law. The said order is a perfectly reasoned one and does not call for any interference by the Court.
Change in Conveyance Mentioned in E-Way Bill due to Break Down of Initial Vehicle Constitute Statutory Breach, Attracts S. 129 of GST Act: Calcutta HC-Asian Switchgear Private Limited vs State Tax Officer-CITATION: 2023 TAXSCAN (HC) 468
Calcutta High Court (HC) presided by Justice Amrita Sinha observed that breach of statutory provision would attract levy of penalty and the officer does not have any authority to either reduce or waive the penalty.
The bench noted that in addition to taxation, the E-way bill is created to specify the products being transported, the origin, the destination, and the vehicle number that would be used to deliver them. Notwithstanding the petitioner’s insistence that there was no other option but to move the items to a different vehicle for delivery to the consignee, the Calcutta HC bench ruled that this should only have been done after creating a new E-way bill. According to the single bench, there is nothing improper in the authorities’ imposition of a fine for failing to produce an E-way bill for the vehicle used to transport the products.
Ex Parte Order on the first day of hearing is Gross Violation of Principles of Natural Justice: Allahabad HC-Siddheshwar Bhandar vs Commissioner Of Commercial Taxes-CITATION: 2023 TAXSCAN (HC) 490
The Allahabad High Court (HC) Ex parte order on the first day of hearing is gross violation of the principles of natural justice.
Justice Manish Mathur observed that the hearing took place on the very first day of the hearing and impugned order has thereafter been passed on 26th April 2008 and the second appellate authority has erred in not recording a finding as to when and by which mode notices were issued to the revisionist-respondent and how service can be said to have been effected upon the said person. While allowing the revision, the Court set aside the impugned order dated 26th April 2008 passed by Appellate Trade Tax Tribunal, Bench-III, Lucknow in Appeal No. 470 of 2005 about the assessment year 2002-03 (central).
CIT cannot travel beyond limited Scrutiny while exercising suo motu revisional power u/s 263: Orissa HC-Principal Commissioner of Income Tax vs M/s. Shark Mines and Minerals Pvt. Ltd CITATION: 2023 TAXSCAN (HC) 489
The Orissa High Court (HC) CIT cannot travel beyond limited Scrutiny while exercising suo motu revisional power under section 263 of the Income Tax Act, 1961.
Justice M S Raman observed that if the AO has to go beyond the scope of the issues for which ‘limited scrutiny’ has to be undertaken by him, he has to seek prior permission from the superior officer in terms of the CBDT Instruction No.7/14 dated 26th September 2014 and Instruction No.20/15 dated 19th December 2015. It was viewed that the limited scrutiny was in respect of excess disallowance under Section 40A(3) of the Act whereas the SCN under Section 263 was regarding the FIFO method of valuation of closing stock adopted by the Assessee Which was noted by the ITAT as unconnected issues. The Court upheld the order of ITAT and dismissed the appeal.
Patna HC directs to pay 5% Simple Interest on delayed Payment of Pension and Gratuity-Upendra Kumar Verma vs The State of Bihar-CITATION: 2023 TAXSCAN (HC) 494
The Patna High Court recently directed to pay 5% simple interest on delayed payment of pension and gratuity.
The Court of Justice Anil Kumar Sinha noted that “Even the submission of learned counsel for the State is accepted, there is apparent delay in payment of interest on the part of the respondents/State between 26.7.2016 and 26.5.2017.” The Court also directed the concerned authority to pay the simple interest @ 5% on pension as well as gratuity for the aforesaid period to the petitioner within a period of three months from the date of receipt/production of a copy of the order.
Telangana HC stays Criminal Proceedings against Assessee until disposal of Compounding Application u/s 279(2)-M/s S R S Projects vs V Ravi Kumar CITATION: 2023 TAXSCAN (HC) 488
The Telangana High Court (HC)stayed the criminal proceedings against the assessee until disposal of the Compounding Application under section 279(2)of the Income Tax Act, 1961.
A Coram comprising of single member Justice K Surender stayed all further proceedings against the petitioners in C.C.No.268/2017 on the file of the Special Judge for Economic Offences at Hyderabad, until disposal of the compounding application pending before the Chief Commissioner of income-tax. It was held that based on the outcome of the compounding application, the trial can proceed against these petitioners in the Special Court.
Suo Motu Revisional Proceeding has to be concluded not beyond five years from Original Order of Assessment: Orissa HC-M/s. Orissa State Co-operative Milk Producers Federation Ltd vs Commissioner of Commercial Taxes-CITATION: 2023 TAXSCAN (HC) 492
The Orissa High Court (HC) has held that the suo motu revisional proceeding must be concluded not beyond five years from the original order of assessment.
Justice M S Raman observed that It was a settled legal position that the suo motu revisional proceeding has to be concluded not beyond five years from the original order of assessment. Further viewed that the Assessee-Dealer had filed an appeal against the reassessment order which was pending before the First Appellate Authority and during the pendency of that appeal, the suo motu revisional power was sought to be exercised by the Additional Commissioner which is impermissible in law. While allowing the appeal, the Court set aside the impugned order dated 10th May 2016 of the Additional Commissioner
Corruption Case: Jharkhand HC Refuses to Renew Anticipatory Bail, Asks Three Chartered Accountants to Surrender within Two Weeks-Naresh Kumar Chhaparia vs Union of India-CITATION: 2023 TAXSCAN (HC) 496
In connection with a Corruption case, the Jharkhand High Court (HC) refused to renew anticipatory bail and ordered the three Chartered Accountants to surrender within two weeks.
Justice Gautam Kumar Choudhary observed that the order in favour of petitioners Binod Kumar Agarwal and Bishal Agarwal, passed by the Supreme Court, is an interim order which cannot be a basis for claiming parity. While rejecting the anticipatory bail, the Court directed the Petitioners to surrender before the Court below within two weeks.
Tax, Penalty and Interest due need to be paid for Revocation of Cancellation of Registration: Orissa HC-M/s. Namrata Pradhan vs Additional CT & GST-CITATION: 2023 TAXSCAN (HC) 495
The Orissa High Court (HC) while considering a petition has held that tax, penalty and interest due need to be paid for the revocation of cancellation of registration under GST.
The Department would be at liberty to verify the veracity of the claim made in the returns. and take appropriate steps by law after affording reasonable opportunity of hearing to the Petitioner. The above exercise shall be completed by the Opposite Parties within a period of ninety (90) days from the date of rTaxeceipt of a copy of this Judgment.
Order cancelling GST Registration without any reason is invalid and not hit by Limitation: Allahabad HC-Pragati Enterprises vs Commissioner-CITATION: 2023 TAXSCAN (HC) 486
The Allahabad High Court (HC) has held that the order cancelling GST Registration without any reason is invalid and it was not hit by limitation.
A Coram comprising Justice Vivek Chaudhary held that the non-submission of reply to the show cause notice cannot be a ground for cancellation of the registration and further set aside he order dated 12.11.2021 as well as the appellate order dated 11.1.2023. The petitioner is permitted to appear before the respondent along with the reply to the show cause notice and the certified copy of this order as well as the copy of the judgment, within three weeks.
Issue of Mismatch in GST Return with Bank Statement: Allahabad HC directs to adjust amount of GST deposited-Vriddhi Infratech India Pvt. Ltd vs Commissioner-CITATION: 2023 TAXSCAN (HC) 491
In the case of an issue of mismatch in GST return with bank statement, the Allahabad High Court (HC)directed to adjust the amount of GST deposited.
A Coram comprising Justice Vivek Chaudhary observed that both the assessing authority as well as the appellate authority have committed the said misreading of GSTR-9. Hence both the impugned orders cannot stand and are set aside. The Court directed the respondents to adjust the amount of GST deposited by the petitioner and the security amount deposited under the interim order is released in favour of the petitioner.
Sales Tax Dues of Over Rs. 180 Crores; Company Wound up: Gujarat HC allows Anticipatory Bail to Directors-BADAL BHUPATRAI SHAH vs STATE OF GUJARAT-CITATION: 2023 TAXSCAN (HC) 493
The directors of the company were granted anticipatory bail by the Gujarat High Court (HC) panel of Judge Umesh A. Trivedi on the grounds that the company had already been dissolved and the FIR had been filed lately. The HC stated that FIR cannot be lodged for recovery of taxes.
The bench has however made it clear that the applicant, even if remanded to police custody, shall be immediately released after such term of police detention, subject to other requirements of this anticipatory bail judgement.
Suo Moto Cancelling the GST Registration and Appeal in absence of Constitution of Appellate Tribunal: Telangana HC grants opportunity to Assessee-M/s Joy Innovation vs Additional Commissioner CITATION: 2023 TAXSCAN (HC) 487
The Telangana High Court (HC) in a case where department suo motu cancelled the registration of GST, grants the opportunity to be heard by the assessee in absence of the Consitution of Appellate Tribunal.
Considering the decision in the case of M/s. Chenna Krishnama Charyulu Karampudi v. Additional Commissioner (Appeals-1), a two-member bench comprising of Justice Ujjal Bhuyan and Justice N Tukaramji set aside the order dated 11.12.2019 passed by respondent No.2 as well as the order dated 19.04.2022 passed by respondent No.1 and remanded the matter back for a fresh decision by law.
Transfer of Cases to call book and reviving after a long gap without any reasonable explanation is not allowable: Orissa HC-M/s. Maxcare Laboratories Ltd. vs Joint Commissioner-CITATION: 2023 TAXSCAN (HC) 485
The Orissa High Court (HC) held that the transfer of cases to call book and reviving after a long gap without any reasonable explanation is not allowable.
Justice S. Muralidhar and Justice S.K. Panigrahi observed that neither clauses (i), (ii) nor (iii) stand attracted and observed that nothing is indicated in the initial SCN issued on 29th March 2000 to justify the Department invoking the proviso to Section 11-A (1) of the CE Act. It was observed that the High Courts have quashed such proceedings in specific to the issue of transfer of cases to the ‘call book’ and then reviving it after a long gap, without any reasonable explanation, there are decisions of the case was sought to be revived 17 years after the initiation of SCNs. The Court found no justification for the Opposite Parties to revive the adjudication proceedings against the Petitioner 18 years after the issuance of the SCN and quashed the impugned SCN and the notices.
Bombay HC seeks Clarification from GST Dept regarding Proper Officer to Decide IGST Refund-M/s. Bora Mobility vs Union of India and Others-CITATION: 2023 TAXSCAN (HC) 484
Bombay High Court (HC) presided by Justices Abhay Ahuja and Nitin Jamdar directed both GST and Customs department to coordinate and decide about the correct authority to decide the Integrated Goods and Services Tax (IGST) refund.
The division bench directed the respondents (Customs and GST department) to coordinate with each other, decide about forum and inform the Court on the next date through a joint note as to who is the correct authority to decide the Petitioner’s claim.
Borrowed Funds not utilized for making Investments: Calcutta HC quashes proceedings against Century Enka-PRINCIPAL COMMISSIONER OF INCOME TAX – 2 vs CENTURY ENKA LIMITED- CITATION: 2023 TAXSCAN (HC) 479
The Calcutta High Court quashed proceedings against Century Enka Limited on the ground that borrowed funds were not utilized for making investments.
In Pr. CIT v. Britannia Industries Limited, it was pointed out that the assessee has to make a claim (including a claim that no expenditure was incurred) with regard to the expenditure incurred for earning income which is not chargeable to tax. Such a claim has to be examined by the Assessing Officer and only if an objective satisfaction is arrived at by the Assessing Officer that the claim made by the assessee cannot be accepted, the Assessing Officer can then proceed to apply computation mode as provided in rule 8D(2) of the Rules.
Self-Assessment shown not in accordance with Law: Jharkhand HC quashes Writ Petition-Jay Prakash Singhania vs The Union of India- CITATION: 2023 TAXSCAN (HC) 478
The Jharkhand High Court quashed writ petition on the ground that the self-assessment shown was not in accordance with the law.
The Court further observed that “This Court, in view of the facts of the given case, is of the view that the conduct of the petitioner cannot be considered to be proper for issuance of a direction for payment of interest in favour of the writ petitioner even if this Court has directed for adjustment of the amount so deposited.”
Invocation of Revisionary Jurisdiction on same issues for which Reopening proceedings was done by AO: Calcutta HC quashes Order-PRINCIPAL COMMISSIONER OF INCOME TAX 2 vs KARAN POLYMERS PVT. LT-CITATION: 2023 TAXSCAN (HC) 476
The Calcutta High Court quashed order on the ground that the invocation of revisionary jurisdiction on same issues for which reopening proceedings was done by the Assessing Officer (AO).
A Division Bench of the Court comprising Justices TS Sivagnanam and Hiranmay Bhattacharyya noted that “Thus, in our considered view, the learned Tribunal rightly applied the legal position and also took note of the facts and held that the power under Section 263 of the Act could not have been invoked.”
Application for Provisional Release of Goods lacks prescribed Format: Madras HC directs to submit Fresh Application u/s 110 of Customs Act-Raw Enterprises vs Principal Commissioner of Customs-CITATION: 2023 TAXSCAN (HC) 482
The Madras High Court ( HC ) directed to submit a fresh application under section 110 of the Customs Act, 1962 when the application for provisional release of goods lacks the prescribed format.
The Court directed the petitioner to submit a fresh application in respect of the following Bills of Entry, seeking for release of the respective imported goods to the 1st respondent, within a period of one week from the date of receipt of a copy of this order. Further held that on receipt of the said application, the 1st respondent shall pass final orders on merits and by law, within a period of two weeks thereafter.
Revisional Order by PCIT will be invalid if Original Reassessment order was not validly passed: Orissa HC-Principal Commissioner of Income Tax vs Badal Prakash Jindal CITATION: 2023 TAXSCAN (HC) 477
The Orissa High Court (HC) has held the revisional order by PCIT will be invalid if the original reassessment order was not validly passed.
A Coram comprising of Justice M S Raman observed that reassessment proceedings were themselves invalid since the reasons recorded in the file for reopening and the reasons supplied to the Assessee were different. Further held that if the original re-assessment order itself was not validly passed, the subsequent revisional order by the PCIT was required to be held invalid. The Court upheld the impugned order of the ITAT and dismissed the appeals.
Initiation of penalty proceedings u/s 8(D)(6) of UP Trade Tax Act, against Government Institution has not helped revenue, but has led to financial loss to Government: Allahabad HC grants relief to Bundelkhand University-Bundelkhand University vs The Commissioner Commercial Tax-CITATION: 2023 TAXSCAN (HC) 473
The Allahabad High Court granted relief to Bundelkhand University, the revisionist and observed that initiation of penalty proceedings under Section 8(D)(6) of UP Trade Tax Act, against Government Institution has not helped revenue, but has led to financial loss to Government.
The Court further noted that the revisionist had sufficiently explained in the reply furnished before the assessing authority that they were not well aware of the provisions of law which required for deduction under Section 8(D)(6). The reasons so furnished appear to be plausible, and in the absence of any malafide intention, in my opinion, penalty is not leviable.
Coercive Recovery proceedings under TNVAT Act can’t be initiated before a Final Assessment Order: Madras HC-KJK Poly Diamonds International P Ltd vs Assistant Commissioner-CITATION: 2023 TAXSCAN (HC) 480
In a significant judgement, the Madras High Court (HC) has held that coercive recovery proceedings under Tamil Nadu Value Added Tax Act, 2006 ( TNVAT Act ) can’t be initiated before a final Assessment Order.
The Court held that only after passing the assessment orders, any coercive recovery proceedings can be initiated by the first respondent against the petitioner. Further, quashed the impugned proceedings dated 30.01.2023, issued by the first respondent and allowed the writ petition.
Whether Component of Interest is part of “Remaining Tax” u/s 112(8) of GST Act: Patna HC Seeks Response from State-Carbon Resources (P) Ltd vs The State of Bihar & Ors;CITATION: 2023 TAXSCAN (HC) 483
The state was called and directed to submit a counter-affidavit within a week by the Patna High Court (HC), which is composed of Acting Chief Justice Chakradhari Sharan Singh and Jitendra Kumar.
According to the petitioner’s counsel contention, the term “remaining tax” as used in Section 112 sub-section (8) of the CGST Act does not include interest on disputed tax. The bench determined that they were not pleased with the petitioner side’s explanation and believed that the interest component should be included in the remaining tax. However, it is not the court’s final ruling, and after the state filed its counter affidavit within a week, the court opted to review the matter in more depth.
Delay in SVLDR Scheme Settlement Amount due to technical difficulties: Gujarat HC directs to issue Discharge Certificate-M/S SK LIKPROOF PRIVATE LIMITED vs UNION OF INDIA-CITATION: 2023 TAXSCAN (HC) 481
Gujarat High Court (HC) bench consisting of Justices Sonia Gandhi and Sandep N. Bhatt directed the authorities to issue the Discharge Certificate under form 4 of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019.
The bench was instructed to take into account the petitioner’s payment of Rs. 81,051 and appropriate it towards the settlement obligations under the SVLDRS 2019 and the discharge certificate to be issued in favour of the petitioner. Additionally, the bench was instructed to refund Rs. 7,68,675/- with interest within an 8-week window for consequential benefits.
Time-barred Revision Petition is not allowable without Furnishing Sufficient cause of Condonation: Rajasthan HC-Assistant Commissioner, Anti-Evasion, Circle Alwar vs M/s. Hind Traders- CITATION: 2023 TAXSCAN (HC) 474
In a recent case, the Rajasthan High Court (HC) has held that a time-barred revision petition is not allowable without furnishing sufficient cause of Condonation
Justice Sameer Jain observed that the petitioner has not produced any evidence in support of their contention. The petitioners have neither placed on record any postal document in support of their contention nor highlighted any disciplinary proceedings. Only vague and unfounded contentions are put forward, which do not merit acceptance. The Court dismissed the revision petitions, being riddled with delay and laches.
Bogus Purchase in Identical Name of Assessee, Assessee has Right to Cross-Examine: Orissa HC-M/s. Jai Maa Kali Store vs State of Odisha- CITATION: 2023 TAXSCAN (HC) 472
The High Court ( HC ) of Orissa on a bogus purchase case in the identical name of the assessee held that the assessee has the right to cross-examine the alleged purchaser.
Further held that there has been a denial of an effective opportunity to the Petitioner-dealer by refusing it the right to cross-examine the selling dealers. Considering that more than two decades have elapsed since those transactions, an opportunity being provided at this stage to the Petitioner to cross-examine the selling dealers might not even be practical.
4% VAT cannot be applied on ‘Chokad’ considering it as Industrial Input in absence of Govt Notification: Orissa HC-M/s. Kamadhenu Cattle & Poultry Feed Unit vs The State of Odisha- CITATION: 2023 TAXSCAN (HC) 471
In a recent case, the Orissa High Court (HC) has held that 4% VAT cannot be applied to ‘Chokad’ considering it as industrial input in absence of Government Notification.
Justice M S Raman while allowing the revision petition held that “if Entry 74 of Schedule ‘B’ had to be made applicable so that the sale of ‘Chokad’ to NALCO is amenable to tax at 4%, then the Department needed to show that there was a notification issued by the State Government identifying ‘Chokad’ as an ‘industrial input’. In the absence of such notification, no inference could have been drawn that ‘Chokad’ sold to NALCO was an ‘Industrial input’. “
High-Pitched Assessment by Income Tax Dept with unusual determination of Rate of Gross Profit: Delhi High Court directs Re-Adjudication-SONU MALIK vs THE ASSESSING OFFICER Counsel for Appellant: Mr Ankit Totuka and Mr Jitendra Singh Counsel for Respondent: Mr Abhishek Maratha CITATION: 2023 TAXSCAN (HC) 470
The Delhi High Court (HC) directed to re-adjudicate the high pitched assessment by income tax department with unusual determination of rate of gross profit.
The Coram comprising Justice Rajiv Shakdher Justice Tara Vitasta Ganju ordered the commissioner of income tax (CIT) to dispose of the application within two weeks of receipt of a copy of the judgment and if any, order passed adverse to the interests of the petitioner will not be given effect to for a further period of two weeks, to enable the petitioner to take recourse to an appropriate remedy. The writ petition is disposed of in the aforesaid terms.
In a recent decision, the Calcutta High Court observed that there is no requirement in law to verify the reason for transporting goods in a vehicle without a proper e-way bill.
The Bench further noted that the petitioner admits that the vehicle in which the goods stood transferred for being transported allegedly to the pre-recorded destination, did not have an e-way bill and that the Court is convinced that provision of Section 129 will be attracted in such a situation and has been rightly invoked by the authority.
Relief to Coromandel International: J&K HC Quashes Rejection of Claim under Budgetary Support Scheme-M/S Coromandel International Ltd. vs Union of India CITATION: 2023 TAXSCAN (HC) 469
The Jammu and Kashmir High Court quashed rejection of claim under Budgetary Support Scheme, thereby granting relief to M/s Coromandel International Ltd, the petitioner.
The Bench comprising of Chief Justice N Kotiswar Singh and Justice Sanjeev Kumar observed that “Having heard learned counsel for the parties and perused the material on record, we are of the view that, issuance of clarification by the Finance Department, UT of Jammu and Kashmir, has necessitated revisiting of claim of the petitioner by the Adjudicating Authority.”
No Liability to Pre-Deposit for Bail in GST Case in absence of Completed Assessment: Supreme CourtRAJESH KUMAR DUDANI vs THE STATE OF UTTARAKHAND & ANR-CITATION: 2023 TAXSCAN (SC) 129
The Supreme Court has recently held that the appellant has no liability to pre-deposit half the revenue loss, in the absence of a completed assessment to crystallize the tax liability to be released on bail.
It was thus noted, “Facts of the present case being identical to the facts of the aforesaid two Criminal appeals, we see no reason to deviate from the view taken in the aforesaid two cases” and held that “Following the reasons given in the said judgment and orders, we are of the considered opinion that appellant is entitled to be granted anticipatory bail without imposing any condition as suggested by Learned Additional Solicitor General.”
Allahabad HC quashes Trade Tax Revision Petition as Decision on Second Appeal was Made on Ex parte basis-M/S Siddheshwar Bhandar Naveen Mandi Hardoi vs Commissioner CITATION: 2023 TAXSCAN (HC) 466
The Allahabad High Court quashed the trade tax revision petition as decision on the second appeal was made on an ex parte basis.
The Court of Justice Manish Mathur observed that “The Tribunal was clearly unjustified in deciding the second appeal on ex parte basis on the very first day of the hearing and as such the order impugned is clearly vitiated due to violation of principles of natural justice.”
Disposal of Appeal without attaining finality and allowing Reopening of all issues creates a Multiplicity of Proceedings: Gujarat HC-M/S SUPREME TREVES PVT. LTD vs UNION OF INDIA-CITATION: 2023 TAXSCAN (HC) 461
The High Court (HC) Gujarat held that the disposal of appeal without attaining finality and allowing the reopening of all issues creates a multiplicity of proceedings.
In the case of Essar Steel India Ltd. the court observed that since disposal is not final and is open to the reopening of all the issues, this would lead to a multiplicity of proceedings. Under Section 35C(1) of the Central Excise Act, the Tribunal is mandated to dispose of the appeals on merits and was simply not open for the Tribunal to jettison the litigation. It was observed that the approach of the Tribunal is to abdicate its duty of deciding the matter on the merits or to retain the matter till the outcome of the pending matter before the Apex Court. This approach of the Tribunal is not proper. The Court directed the Tribunal to decide the matter on the merits.
Boiled Supari is classifiable as Arecanuts under Customs Tariff Act: Delhi HC-M/S GREAT NUTS IMPEX PVT. LTD vs COMMISSIONER OF CUSTOMS DELHI & ORS. CITATION: 2023 TAXSCAN (HC) 462
The appeals have been filed under Section 28KA of the Customs Act, 1962 involving a common question regarding the classification of “Boiled Supari” under the Customs Tariff Act, 1975.
The Bench also noted that insofar as flavoured supari is concerned, the CAAR relied on the decision of the Supreme Court in Crane Betel Nut Powder Works v. Commissioner of Customs and Excise, Tirupathi & Anr. and held that the same would continue to be classified under Chapter 8 of the Customs Tariff.
Calcutta HC sets aside demand for Remission of Tax under GVFCA as Investments on Fixed Capital Assets was made beyond duration of West Bengal Incentive Scheme-Electrosteel Castings Limited & anr vs Deputy Commissioner of Commercial Taxes-CITATION: 2023 TAXSCAN (HC) 467
The Calcutta High Court set aside the demand for remission of tax under Gross Value of Fixed Capital Assets (GVFCA) as investments on fixed capital assets was made beyond duration of the West Bengal Incentive Scheme.
The Court also observed that “The Court has already observed that the petitioners have failed to demonstrate that the investment of Rs. 23 crores made by the unit was pursuant to any promise made by the government to allow remission of sales tax on such investment. Therefore, the question of reversing the promise by the State does not arise in the case on hand.”
Redemption Fine not covers u/s 125 of SVDLR Scheme; Declaration rejected: Bombay HC directs to issue Discharge Certificate-HP Adhesives Limited V/s. Union of India and ors.CITATION: 2023 TAXSCAN (HC) 454
Subject to the petitioner meeting further requirements outlined under the SVLDR Programme, the Bombay High Court (HC), presided over by Justices Abhay Ahuja and Nitin Jamdar, was instructed to grant the discharge certificate required by Section 129 of the Finance Act.
In a separate instance, according to Taxscan, the two bench members of the Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), P Dinesha, Judicial Member, and M. Ajit Kumar, Technical Member, observed that the appeal filed under Section 127(6) of the Finance Act was withdrawn because a Discharge Certificate was filed under the Sabka Vishwas (Legacy Dispute Resolution) (SVLDR) Scheme.
Revenue to takes steps to Reduce Litigation amid Delay in GST Tribunal Constitution after Bombay HCGulf Oil Lubricants India Ltd. Vs Joint Commissioner of State- CITATION: 2023 TAXSCAN (HC) 453
The Bombay High Court has again directed the revenue to take requisite steps to curb litigation in the absence of the Goods and Services Tax (GST) Appellate Tribunal. In the present case, the assessee, Gulf Oil Lubricants India Ltd. has challenged the validity of statutory provisions on the ground that the GST Appellate Tribunal has not been constituted yet.
The Court has also directed the Respondent to incorporate the stipulation contained in the Circular in the Order-in-Original and to give a 15-day period to the Petitioner to make such a declaration.
Deduction on “Second stage Handling Charges”: Calcutta HC Directs to Accept C Forms-Jagatdal Jute & Industries Ltd. vs Joint Commissioner of Commercial Taxes CITATION: 2023 TAXSCAN (HC) 463
In a recent decision, the Calcutta High Court directed to accept C Forms thereby allowing Deduction on “second stage handling charges”.
The Court also directed the respondent authorities to consider and accept the ‘C’ Forms in question referred to in this writ petition subject to verification and genuineness of the transaction within four weeks from the date of communication of the order.
Expiry of E-Way Bill by one day: Calcutta HC directs Issuance of FORM GST MOV-02-Krishna Cold Storage vs The State of West Bengal & Ors. Counsel for Appellant-CITATION: 2023 TAXSCAN (HC) 464
The Calcutta High Court directed the issuance of FORM GST MOV-02 as the expiry of e-way bill is only by one day.
The Court of Justice Md. Nizamuddin directed the respondent authority concerned to upload the aforesaid FORM GST MOV-02 in the name of the petitioner, if on verification it is found that the petitioner is the owner of the goods in question, within three days from the date of judgment The respondent authority concerned was also directed to consider the release of the goods in question expeditiously and preferably within seven days from the date of compliance of all the formalities by the petitioner.
Transportation of Goods delayed due to delay in issuing gate pass at Checkpost, Fresh E-Way Bill is mandatory if Goods can’t be delivered on time: Calcutta HC-Abinash Kumar Singh vs State of West Bengal & Ors-CITATION: 2023 TAXSCAN (HC) 460
In a recent case, the Calcutta High Court (HC) has held that a time-barred revision petition is not allowable without furnishing sufficient cause of Condonation
Justice Amrita Sinha observed that the law prescribes the generation of fresh e-way bills for the transportation of goods if the same cannot be delivered on time. Further held that no relief can be granted to the petitioner since the appellate authority considered all the grounds raised by the petitioner in the appeal and passed an order applying the corresponding law. The said order is a perfectly reasoned one and does not call for any interference by the Court.
Non-filing of Affidavit Proving Repayment of Loan: Orissa HC Upholds Addition for “Unsecured Loan”-Unideep Food Processing (P) Ltd Vs Income Tax Appellate Tribunal -CITATION: 2023 TAXSCAN (HC) 457
The Division Bench of Orissa High Court has upheld the addition made upon unsecured loan as the petitioner had failed to file an affidavit for proving the repayment of loan.
The Division Bench of Justice S. Muralidhar (Chief Justice) and Justice M.S. Raman (Judge) dismissed the appeal holding that the court was unable to find any substantial question of law arising from the impugned order of the ITAT.
Reimbursement of Differential Tax for Works Contract from Regime Change from VAT to GST: Orissa HC allows Petitioner to approach Appellate AuthorityM/s. Nobadurga Construction Pvt. Ltd vs State of Odisha and others-CITATION: 2023 TAXSCAN (HC) 459
The High Court of Orissa (HC) allowed the petitioner to approach appellate authority for reimbursement of differential tax for works contracts from regime change from Value-Added Tax (VAT) to goods and service tax (GST).
The Coram comprising the chief justice Dr. S Muralidharan and the justice M.S.Raman observed that the petitioner shall make a comprehensive representation before the appropriate authority, within four weeks from today ventilating the grievance. If such a representation is filed, the authority will consider and dispose of the same, in the light of the aforesaid revised guidelines dated 10th December, 2018 issued by the finance Department, government of Odisha.
Levy on Extra Neutral Alcohol under State VAT or GST: Bombay HC defers hearing as matter pending with Supreme Court-Karan Agencies vs Goods and Services Tax Council and Ors-CITATION: 2023 TAXSCAN (HC) 458
The Mumbai High Court (HC) deferred the hearing on the case of levy on extra neutral alcohol under state VAT or GST as a matter pending with the Supreme Court.
The Coram comprising Abhay Ahuja, NitinJamdar held that an ad-interim order operating in these Petitions to continue till the next date with the above clarification and liberty to the Buyers.
Charger sold along with Mobile Phone set Taxable at 5% under KVAT Act: Karnataka HC
While considering a bunch of revision petitions the Karnataka High court held that chargers sold along with mobile phones are taxable at 5 percent under the Karnataka Value Added Tax Act,2003.
Further the bench determined that, Section 4 of KVAT Act 2003 and Rule 3 of KVAT Rules would clearly indicate that there is no prescribed mechanism provided for determining the value of individual goods in a composite transaction. Thus, in the absence of a valuation mechanism, tax could not be levied differently on each of the components by separating a single composite package.
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