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 27 to April 1, 2023.
Calcutta HC quashes Order u/s 148A(d) of Income Tax Act with non-application of Mind Dobby Media Pvt. Ltd. Vs. Income Tax Officer, Ward No.1(1)/11`(4), Kolkata & Ors. CITATION: 2023 TAXSCAN (HC) 569
The Calcutta High Court (HC) quashed the order under section 148A(d) of the Income Tax Act,1961 passed with non-application of mind. A single-member bench comprising Justice Md. Nizamuddin viewed that quashing the aforesaid impugned order under Section 148A(d) of the Act and all subsequent proceedings, will not be a bar on the part of the Assessing Officer to pass a fresh order under Section 148A(d) of the Act after considering the objection/ response of the petitioner dated 15th June 2022 by the law. It was held that it would be by passing a reasoned and speaking order after giving an opportunity of hearing to the petitioner or his authorised representatives, within a period of eight weeks from the date of communication of the order.
Karnataka HC dismisses Writ Petition challenging Constitutional Validity of VAT Notification by Authorities to Track Movement of Goods to Fix Tax Liability M/S. MEENAXI BUILDING SOLUTIONS PVT. LTD vs THE COMMERCIAL TAX OFFICER CITATION: 2023 TAXSCAN (HC) 571
The Karnataka High Court dismissed a writ petition challenging constitutional validity of Value Added Tax (VAT ) Notification by Authorities to track movement of goods to fix tax liability. The Court of Justice MI Arun, observed that “I do not see any reason, as to why the impugned notification is to be struck down. The notices at Annexure – B and C to the writ petition are issued in pursuance of the impugned notification and they do not violate the said notification. Hence, the said notices are also upheld.”
GST Refund Claim in Transition Phase: Calcutta HC allows Filing of Fresh Calculations to Avail Refund Sondeep Paul vs Union of India & Ors CITATION: 2023 TAXSCAN (HC) 573
The Calcutta High Court allowed filing of fresh calculations to avail refund in the matter of GST Refund Claim in Transition Phase. The Coram comprising of Justice Shampa Sarkar, noted that “As the claims were made at a transitional phase when GST had just been introduced, it is expected that some teething problems will be faced by the claimants. As such, the executive heads of the respective divisions are expected to familiarize the claimants with the procedure and the calculations.” “Once the petitioner submits the calculations with the necessary corrections and documents, the same shall be processed by the WBSRDA as also by its counter-part in the centre, for refund of the GST claims” the Court observed.
Andhra Pradesh HC allows Appeal on GST registration cancellation in absence of GST Tribunal u/s 109 of GST Act ABISWATHIKA INFRA vsThe State of Andhra Pradesh CITATION: 2023 TAXSCAN (HC) 570
The Andhra Pradesh High Court (HC) allowed the appeal on Goods and Service Tax (GST) registration cancellation in absence of a GST tribunal under section 109 of the Central Goods and Services Tax Act(CGST), 2017. A two-member bench comprising Justice U Durga Prasad Rao and Justice V Gopala Krishna Rao observed that the GST Tribunal has not been constituted as per the provisions of the Act to enable the petitioner to pursue his further legal remedy. The Court allowed the writ petition and the matter is remitted back to the preliminary authority i.e., the 4th respondent to consider the case of the petitioner and after verifying the returns submitted by the petitioner and after allowinga personal hearing pass an appropriate order by governing law and rules expeditiously but not later than two weeks.
Writ Court has no authority to Adjust Municipal Taxes, Repair and Maintenance Charges in absence of Specific Agreement Sri Manoj Parmar and others vs Union of India and others CITATION: 2023 TAXSCAN (HC) 572
In a recent ruling the Calcutta High Court observed that the Writ Court has no authority to adjust Municipal Taxes, Repair and Maintenance Charges in the absence of a Specific Agreement. The Court ofJustice Sabyasachi Bhattacharyya observed that “There is no scope of this Court adjusting such amount of Municipal Taxes and alleged repair and maintenance charges within the ambit of the present writ petition.” The Court further went on to add that it is well-settled that unless there is a specific agreement between the lessor and lessee and/or landlord and tenant to the effect that repair and maintenance charges shall be adjusted from the rent, such adjustment cannot be claimed as a matter of right by the respondents/lessees.
SOP should be followed in Faceless Assessment: Calcutta HC quashes Assessment Order holding as Classic Example as to how Assessment should not be Made INDU GOENKA vs ASSESSMENT UNIT, INCOME TAX DEPARTMENT & Ors CITATION: 2023 TAXSCAN (HC) 574
The Calcutta High Court quashed an assessment order holding as classic example as to how assessment should not be made and observed that Standard Operating Procedure (SOP) should be followed in faceless assessment. The Court of Justices T. S. Sivagnanam and Hiranmay Bhattacharyya noted that “On a cursory perusal of the assessment order, one gets an impression that it is in compliance with the SOP as it contains requisite sub-headings but however, on a closure reading of the assessment order it is found that the assessing officer has acted in a most perverse manner in passing the assessment order.” The Court further went on to observe that the impugned assessment order is a classic example as to how an assessment should not be made. The assessing officer has reduced the procedure to an empty formality, which has to be deprecated.
Interim Order of SC not “sufficient cause” for Non-Payment: Orissa HC directs Shree Bharat Motors and Others to Pay Balance Entry Tax with Interest M/s.Shree Bharat Motors Ltd. vs The Sales Tax Office CITATION: 2023 TAXSCAN (HC) 576
The Orissa High Court observed that the Interim order of the Supreme Court not “sufficient cause” for Non-Payment and thereby directed Shree Bharat Motors and other applicants to pay Balance Entry Tax with Interest. The Court of Chief Justice Dr S Muralidhar and Justice Murahari Sri Raman noted that an analysis of Section 7(5) of the OET Act read with Rule 10 of the OET Rules transpires that interest is payable on tax due as discussed above, and the same is subject to fulfilment of the condition that on failure to pay the amount of tax due as per the return “without sufficient cause”
Writ petition filed before attaining Finality in Authorization for inspection and search issued by Additional Commissioner of State Taxes amounts to Premature and not maintainable SL Automobiles Private Limited vs The State of Tripura CITATION: 2023 TAXSCAN (HC) 577
The Tripura High Court (HC) has held that the writ petition filed before attaining finality in the authorization for inspection and search issued by the Additional Commissioner of State Taxes amounts to Premature and not maintainable .The petitioner submitted that seizing the vehicles of the petitioner and directing him to may payment of Rs. 1,28,37,517/- along with interest and penalty is wholly illegal and without jurisdiction. On the other hand, the respondent submitted that the memo dated 25.06.2021 and the notice dated 25.08.2021 passed within the ambit of law since the petitioner had not discharged his actual tax liability in filing Returns. Further argued that the petitioner failed to produce any valid document regarding the mode of business operation of the petitioner and stated that without the outcome of the proceeding initiated by respondent no. 4, the petitioner had filed the instant writ petition which is at its premature stage. A Coram comprising of Justice Arindam Lodh observed that the present writ petition which is filed by the petitioner is at the pre-mature stage, and is not maintainable. The appeal got dismissed
Petitioner is Victim of Lacuna in Software Governing the SVLDR Scheme: Bombay HC dismisses Rejection of Declaration under SVLDR Scheme Avenue Supermarkets Ltd. vs The Union of India and Another CITATION: 2023 TAXSCAN (HC) 580
The Bombay High Court dismissed the rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDR) and commented that the petitioner, Avenue Supermarkets Ltd, is a victim of the lacuna in software governing the SVLDR scheme. The Bench concluded by observing that “This being the position, we are of the opinion that the Petitioner is entitled to get his application / declaration SVLDRS-1 to be examined on merits as to whether the Petitioner is otherwise entitled to the benefit of the scheme.”
Chhattisgarh HC Rejects Anticipatory Bail of Businessman Sunil Kumar Aggarwal in Chhattisgarh Coal Scam Case Sunil Kumar Agrawal vs Director of Enforcement CITATION: 2023 TAXSCAN (HC) 582
The Chhattisgarh High Court rejected an Anticipatory Bail application of Businessman Sunil Kumar Aggarwal in association with the Chhattisgarh Coal Scam case. Dismissing the application of anticipatory bail the Court of Justice P. Sam Koshy observed that “The manner of transaction made between the Applicant and the Firms belonging to Suryakant Tiwari, the timing of the transaction, the sale consideration made by the Applicant in the process of purchase of the Coal Washeries from the Firms belonging to Suryakant Tiwari, all establishes the nexus between the Applicant and Suryakant Tiwari and their involvement in the predicate offence.”
Madras HC quashes Assessment Order on Non-Issuance of Pre-Assessment Notice M/s.My Home Industries Pvt. Ltd vs State Tax Officer CITATION: 2023 TAXSCAN (HC) 581
The Madras High Court quashes assessment order on the ground of non-issuance of pre-assessment notice. The Court of Dr Justice Anita Sumanth noted that “In light of the documentary evidence that has been produced which is a print out of the virtual summary of notices issued to the petitioner and this being the admitted position, the impugned order is liable to be set aside.”
Restoration of GST Registration: Andhra Pradesh HC remands matter to Primary Authority on non-constitution of GST Tribunal Y SCREENS ENTERTAINMENT (INDIA)N LTD vs GOVERNMENT OF AP
The Andhra Pradesh High Court remanded back matter to primary authority on non-constitution of GST Tribunal in a matter relating to the restoration of GST Registration. The Court of Justices U Durga Prasad Rao and V Gopala Krishnan Rao “In that view of the matter and as the GST Tribunal has not been constituted as per the provision of the Act so as to enable the petitioner to pursue his further legal remedies, in the interest of justice, we consider it apposite to allow the writ petition and remit the matter back to the primary authority.”
Institute of Cost Accountants of India cannot use “ICAI”, Trademark belongs to Institute of CAs THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA vs THE INSTITUTE OF COST ACCOUNTANTS OF INDIA CITATION: 2023 TAXSCAN (HC) 584
In a noteworthy ruling, the Delhi High Court has prohibited the Institute of Cost Accountants of India from using the acronym “ICAI,” which is a trademark registered in favor of the Institute of Chartered Accountants of India, for any of its services or institution. The court observed that it was impossible to determine whether the use of the ICAI acronym referred to the Institute of Chartered Accountants of India or the Institute of Cost Accountants of India without additional evidence. It concluded that the defendant had prima facie infringed on the Institute of Chartered Accountants of India’s trademark by using the ICAI acronym to designate its institution. The Delhi High Court Bench of Justice C Hari Shankar thereby restrained the Institute of Cost Accountants of India from using the ICAI acronym and has directed it to remove the acronym from all existing representations within three months.
No Criminal Liability of Guarantor for Failure to Pay Arrears of VAT and GST as in Undertaking Santhosh vs The Commercial Tax Officer Commercial Taxes Department Mini Civil Station CITATION: 2023 TAXSCAN (HC) 578
In a recent judgment the Madras High Court observed that there is no Criminal Liability of Guarantor for failure to pay Arrears of Value Added Tax(VAT) and Goods and Service Tax (GST) as in Undertaking.The Court of Justice R N Manjula, observed that “Unless the second petitioner is the assessee in the eyes of the Act he cannot be implicated as an accused for the default committed on the part of the first accused, who alone is the assessee.Since the complaint has been given against this petitioner by presuming culpability on his part for failing to pay the tax I feel there is no basis for this criminal case.”
Service Tax relief approved under SVLDR Scheme: Orissa HC directs to Lift Attachment under Section 79(1) (c) of CGST Act Bhagwati Agency vs Assistant Commissioner Counsel for Appellant: Mr. Siddhartha Ray and Mr. S.K. Sahu Counsel for Respondent: Mr. A. Kedia CITATION: 2023 TAXSCAN (HC) 579
The Orissa High Court directed the Revenue to lift the attachment under Section 79(1) (c) of the Central Goods and Services Tax (CGST) Act, 2017 as Service Tax relief approved under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019(SVLDR). The Court of Justices S. Talapatra and Savitri Ratho observed that “Having appreciated the facts and the submission as advanced we think that in the interest of the revenue, the revenue shall lift the attachment temporarily in favour of the petitioner as the petitioner has undertaken to deposit the sum of Rs.9 lakhs.”
Relief to Mount Everest Breweries: Madhya Pradesh HC directs to Refund pre-deposit with 6 % Interest since SLP was dismissed M/S MOUNT EVEREST BREWERIES LTD vs THE STATE OF MADHYA PRADESH CITATION: 2023 TAXSCAN (HC) 585
As a relief to Mount Everest Breweries, the Madhya Pradesh High Court (HC) has directed to refund pre-deposit with 6 % Interest since Special Leave Petition (SLP) was dismissed. The Court observed that the respondent was obliged to refund the amount so collected to the petitioner immediately after the dismissal of SLP. Further viewed that even though, there are no provisions of payment of interest on refund of amount so collected under the VAT Act, since the SLP was dismissed on 17.04.2017, the petitioner would be eligible for interest@6% per annum w.e.f. 17.04.2017 till the date of refund. The petition got allowed.
No Jurisdiction vested on Lok Ayukta to check Correctness of Order passed by AA on Settlement of Tax Arrears under Amnesty Scheme ADDITIONAL CHIEF SECRETARY vs KERALA LOK AYUKTA CITATION: 2023 TAXSCAN (HC) 587
In a major ruling the Kerala High Court observed that there is no Jurisdiction vested on Lok Ayukta to check Correctness of Order passed by Assessing Authority (AA) on Settlement of Tax Arrears under Amnesty Scheme. The Bench of Chief Justice observed that “The Lok Ayukta has no jurisdiction to decide the correctness of the order rejecting the option for settling the arrears under the Amnesty Scheme-2020.”
Gujarat HC quashes prosecution under Income tax Act on Undisclosed Income in absence of a willful attempt to Evade Tax, Penalty or Interest SUMAN PAPER & BOARDS LTD. & 6 other(s) vs JOINT COMMISSIONER OF INCOME TAX & 2 other(s) CITATION: 2023 TAXSCAN (HC) 586
The High Court (HC) of Gujarat quashed prosecution under the Income Tax Act, 1961 on undisclosed income in absence of a willful attempt to evade tax, penalty, or interest. A Single member comprising Justice Nikhil S Kariel observed that the fact of headson which income had not been disclosed was different and since there is not be of any material consequence.Consequently, the Court quashed and set aside the impugned Criminal Complaints. The applications are allowed accordingly.
TDS Refund Claim cannot be withheld Merely because of notice issued u/s 143(2): Delhi HC rules in favour of OYO OYO HOTELS AND HOMES PRIVATE LIMITED vs DEPUTY ASSISTANT COMMISSIONER OF INCOME TAX & ANR CITATION: 2023 TAXSCAN (HC) 588
In a significant ruling in favour of OYO, the High Court (HC) of Delhi has held that the refund claim of TDS can’t be withheld merely because of notice issued under section 143(2)of the Income Tax Act, 1961. While withholding a refund, the AO is required to look into various factors about an Assessee, such as the amount of tax liability which a scrutiny assessment may eventually lead to (as is underway in this case) vis-a-vis the amount of tax refund due; the financial standing or credit worthiness of the Assessee, and whether there would be any doubts in the Revenue recovering amounts from the Assessee. Merely because a notice has been issued under Section 143(2) of the Act, it is not sufficient ground to withhold the refund under the provisions of the Act. The Court comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju set aside the order(s) dated 07.06.2022/30.05.2022. Further held that the Respondents shall conduct a de novo exercise bearing in mind the provisions of Section 241A of the Act and principles articulated within six weeks.
Expiry of GST e-Way Bill during Transit: Tripura HC quashes imposed Penalty M/s Balaji Steel Rolling Mills Ltd vs State of Tripura and ors CITATION: 2023 TAXSCAN (HC) 590
A Division bench of the High Court of Tripura recently set aside the imposed penalty for expiry of GST E-way bills and observed that the same had expired during transit, and the assessee was unable to renew them with the competent authority.The Bench of the Acting Chief Justice and Justice Arindam Lodh observed that, “the ‘e-Way bills’ had expired during the transit and the petitioner was not in a position to ask for its renewal to the competent authority when the vehicle entered into the territory of the State of Tripura. It was thus opined that the order dated passed by the Appellate Authority is not just and proper and the same is liable to be set aside. The Tripura High Court, allowing the refund remarked that the petitioner was entitled to all consequential reliefs including the refund.
Re-insurance services not excluded from the definition of ‘input services’ under Rule 2(l) of the CCR: Delhi HC rules in Favour of Oriental Insurance Company COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX vs ORIENTAL INSURANCE COMPANY LTD CITATION: 2023 TAXSCAN (HC) 589
In the case of Oriental Insurance Company, the Delhi High Court (HC) has held that re-insurance services are not excluded from the definition of ‘input services’ under rule 2(l) of the CENVAT Credit Rules, 2004 (‘CCR’). Justice Vibhu Bakhru and Justice Amit Mahajan observed that the show cause notice had proceeded on basis that the re-insurance services are not input services because they are received by OIC after the insurance services have been rendered; re-insurance services are not essential for providing insurance services; and re-insurance services are not directly or indirectly used for providing output services. It was alleged that re-insurance services were specifically excluded from the scope of input services under an amendment to Rule 2(l) of the CCR introduced with effect from 01.04.2011 – that is, by the exclusion contained in Clause (B) of Rule 2(l) of the CCR –is not a grounds which was stated in the show cause notice.
Penalty Cannot be levied for Late Filing of GST Returns during Cancellation of GSTIN ISHWAR CHAND PROPRIETOR Vs UNION OF INDIA & ORS. CITATION: 2023 TAXSCAN (HC) 591
In a recent ruling, the division bench of Delhi High Court (HC) presided by Justices Vibhu Bakhru and Amit Mahajan observed that from the date of the petitioner filing an application for revocation of its cancellation, he cannot be held responsible for not filing its returns during the period when the registration stood cancelled. The bench observed that the order of the respondent authority rejecting the application of GSTIN registration is unsustainable as it does not provide any proper reason for the rejection.
Assessee failed to furnish Bank Statement before AO: Delhi HC remands Reassessment Proceedings triggered based on TEP to AO PRADEEP VERMA vs INCOME TAX OFFICER CITATION: 2023 TAXSCAN (HC) 593
In a significant ruling, the High Court (HC) of Delhi remanded the reassessment proceedings triggered based on Tax Evasion Petition (TEP) to Assessing Officer (AO). The Court comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju observed that the petitioner has been remiss in not placing the bank statement before the AO. The AO proceeded based on the allegation made in the TEP. The record shows that the petitioner has taken the stand that he has purchased a half-share in an immovable property worth Rs. 45,00,000/-. The Court remanded the matter to the AO to consider the stand of the petitioner about the allegation made in the TEP.
Delay in filing Application u/s 270AA of Income Tax Act due to Technical Glitches in the Portal can be Condoned ROHIT KAPUR vs PRINCIPAL COMMISSIONER OF INCOME TAX CITATION: 2023 TAXSCAN (HC) 594
The Delhi High Court (HC) delayed filing applications under section 270AA of the Income Tax Act, 1961 due to technical glitches in the portal can be condoned. Justice Vibhu Bakhru and Justice Amit Mahajan observed that the petitioner has a valid explanation for the delay and the matter is remanded to the concerned officer (Respondent no.2) to consider the petitioner’s application under Section 270AA of the Act afresh. The Court directed the petitioner to appear either personally or through an authorized representative before Respondent no.2 at 11.00 AM on 05.04.2023 to avail the opportunity of being heard.
Delhi HC directs to lift block placed on Assessee’s Bank A/c since Refund was sanctioned by Auditor EUNIKE GENERAL TRADING vs COMMISSIONER OF GOODS AND SERVICE TAX CITATION: 2023 TAXSCAN (HC) 595
The Delhi High Court (HC) directed to lift the block placed on the assessee’s bank a/c since the refund was sanctioned by the auditor. The Court observed that the blocking of the bank account is taken under Section 83 of the Act. By sub-section (2) of Section 83 of the Act, the said order of attachment ceases to be operative on the expiry of a period of one year from the date of the order. Considering the averment that the auditor has already reviewed the petitioner’s case, the Court directed a refund for the sum of ₹38,786/-. It was further directed to reconsider the petitioner’s request for lifting of the block placed on the petitioner’s bank account and continue the same only if it is satisfied that the conditions as specified in Section 83 of the Act continue to exist.
Relief to EY India: Actual Supplier Professional Consultancy Services to Overseas Entities not Intermediary, Delhi HC allows GST ITC Refund Claim M/S ERNST AND YOUNG LIMITED vs ADDITIONAL COMMISSIONER CITATION: 2023 TAXSCAN (HC) 596
A Division Bench of the Delhi High Court allowed the refund claim of EY Ltd. India (assessee) on services rendered to EY Entities located outside India in terms of service agreement entered into between Head Office of EY Ltd. with the respective EY entities. It was further observed that, “even if it is accepted that the petitioner has rendered services on behalf of a third party, the same would not result in the petitioner falling within the definition of ‘intermediary’ under Section 2(13) of the IGST Act as it is the actual supplier of the professional services and has not arranged or facilitated the supply from any third party.” The Bench of Justice Vibhu Bakhru and Justice Amit Mahajan pointed out that “There is no dispute that the recipient of Services – that is EY Entities – are located outside India. Thus, indisputably, the Services provided by the petitioner would fall within the scope of the definition of the term ‘export of service’ under Section 2(6) of the IGST Act”, consequently allowing the GST Input Tax Credit refund claim.
Income Tax Notice issued u/s 148A(b) on dissolved Partnership is not valid LOTUS LAW PARTNERS LLP THROUGH LEGAL HEIR OF ITS MANAGING PARTNER vs INCOME TAX OFFICER CITATION: 2023 TAXSCAN (HC) 597
The Delhi High Court (HC) has held that the Income Tax notice issued under section 148A(b) of the Income Tax Act, 1961 on dissolved partnership is not valid. The Court comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganj allowed the liberty to the Assessing Officer (AO) to issue to Ms Ragini Mohan, who is the Legal Representative (LR) of the deceased managing partner [i.e., Mr Keshav Mohan], fresh notice under Section 148A(b) of the Act. Furthermore held that the AO will also accord a personal hearing to Ms Ragini Mohan and/or her authorized representative. The AO shall, thereafter, take the next steps, in law, as deemed fit.
Customs does not have the Authority to Seal Immovable Property Kalpesh Ghevarchand Jain vs Union of India CITATION: 2023 TAXSCAN (HC) 598
A Division bench of the Bombay High Court recently held that the Customs authorities do not possess any power to seal the premises of a person alleged to be involved in smuggling of goods. The bench observed that, “we find that there is no power available with the custom authorities to seal premises of any person, which are nothing but a form of immovable property. Under Section 110 or Section 121 of the Customs Act, 1962 what can be seized and confiscated is the “goods” or movable property”. It was further observed by the Bombay High Court bench that, “Section 110 and Section 121 respectively empower the customs authorities to seize the goods liable to confiscation and confiscate the sale proceeds of the smuggled goods, which are sold by the person, having knowledge or reasons to believe that the goods are smuggled goods.”
Evasion of Tax Payment by Smuggling Coal to Different States: Gauhati HC rejects Petition praying to quash FIR Abdul Kadir vs State of Assam and Anr CITATION: 2023 TAXSCAN (HC) 599
Gauhati High Court (HC) of bench Justice Susmita Phukan Khaund rejected the petition praying to quash FIR filed against the petitioner for evading tax payment from the government by smuggling coal to different states. The HC stated that they could not find any malice by the investigation agency. The bench rejected all the submissions made by the petitioner and observed that “the petitioner is alleged with an offence of evading payment of taxes to the Government by smuggling coal to different states. I have considered the magnitude of the offence. This is an offence against the society at large. The document submitted by the petitioner does not even substantiate his averments”.
Relief to Atlas: Kerala HC directs to Pass Fresh Assessment Orders after Complying Principles of Natural Justice ATLAS GOLD TOWNSHIP(INDIA)PVT LTD vs THE STATE OF KERALA CITATION: 2023 TAXSCAN (HC) 600
Atlas Gold Township received respite when the Kerala High Court (HC) division bench, headed over by Justices A K Jayashankaran Nambiar and Viju Abraham, ordered officials to issue new assessment orders. The bench noted that the appellant’s current limited request is for a directive akin to the sister company’s, which saw another learned Single Judge overturn the challenged assessment orders that were made without consulting the assessee and order the Assessing Officer to conduct a new assessment within a specific time frame. The division bench decided to set aside the judgment of the single judge in the writ petition,as also the order in the Review Petition, to the limited extent that it does not set aside the assessment orders impugned in the Writ Petition.
Order Preventing Assessee from Availing Benefit of Stay Recovery of Balance GST Amount passed in absence of Tribunal by GST Authorities: Patna HC directs to file Appeal u/s 112 of BGST Act Gammon Engineers and Contractors Pvt. Ltd. vs The State of Bihar CITATION: 2023 TAXSCAN (HC) 604
The Patna High Court (HC) directed to file an appeal under section 112 of the Bihar goods and services tax act 2017 (BGST Act) since the order preventing the assessee from availing the benefit of stay the recovery of balance GST amount passed in absence of Tribunal by GST authorities. A Coram comprising of Justice Madhuresh Prasad held that since the order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter the office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.
Relief to IOC: Calcutta HC confirms Fulfilment of Obligation under Rule 6(2) of CCR, by taking only 85% of Credit on Common Input Service COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX vs M/S. INDIAN OIL CORPORATION LTD CITATION: 2023 TAXSCAN (HC) 606
The Calcutta High Court confirmed the fulfilment of obligation under Rule 6(2) of the Cenvat Credit Rules, 2004(CCR), by taking only 85% of credit on common input service, thereby granting relief to M/s Indian Oil Corporation Ltd, the petitioner. The Court of Justices TS Sivagnanam and Hiranmay Bhattacharyya observed that “This would indirectly mean that the contest which was made before the Tribunal with regard to the Chartered Accountant’s certificate does not any longer survive and it is only the contents thereof, sufficiency or insufficiency of the material contained in the certificate which is now being pursued by the Department. Therefore, technically we would not be wrong in observing that the revenue has accepted that portion of the order passed by the Tribunal.”
Non-participation in Proceedings due to Ill-Health: Andhra Pradesh HC directs Fresh Adjudication after Depositing 50% of Service Tax REDDY ENTERPRISES vs THE STATE OF AP CITATION: 2023 TAXSCAN (HC) 605
In a significant case, the Andhra Pradesh High Court (HC) directed fresh adjudication after depositing 50% of Service Tax since non-participation in proceedings due to ill health. A Coram comprising Justice U Durga Prasad Rao and Justice V Gopala Krishna Rao observed that the petitioner could not avail of the opportunity givenher old age as she has aged 75 years and also due to her ill health. The Court directed the 3rd respondent to afford a personal hearing to the petitioner and pass Assessment Order afresh by the law on suitable terms. Further, the Court set aside the impugned Assessment Order dated 10.11.2022 passed by the 3rd respondent on the condition of the petitioner depositing 50% of the tax component of Rs.23,79,26,090/- as mentioned in the impugned order dated 10.11.2022 within six (6) weeks.
SC upholds Order passed u/s 7 of COFEPOS Act in absence of valid Evidence to Explain Investment M/S. PLATINUM THEATRE AND OTHERS vs COMPETENT AUTHORITY SMUGGLERS & FOREIGN EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY) ACT CITATION: 2023 TAXSCAN (SC) 137
The Supreme Court (SC) upheldthe order passed under section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOS) in absence of valid evidence to explain investment. It was observed that the proceedings were initiated about the appellants, in the first instance, under show cause notice dated 13th January 1977 and the competent authority passed an Order of forfeiture on 23rd November 1977. Later that came to be set aside in the year 1991 and fresh forfeiture proceedings were initiated under show cause notice under Section 6 of the Act dated 16th October 1994 which finally culminated inthe passing of the order of the competent authority on 31st December 1997. The Court alleged gross delay in initiating the proceedings for forfeiture of the property is misconceived and deserves an outright rejection.
Day of Remand should be Included to consider Default Bail Claim: SC answers Reference in Yes Bank Case ENFORCEMENT DIRECTORATE GOVERNMENT OF INDIA vs KAPIL WADHAWAN & ANR CITATION: 2023 TAXSCAN (SC) 138
In a major ruling the Supreme Court observed that the day of remand is to be included for considering for considering a claim for default bail and the observation was made while answering a reference in the Yes Bank Case. he Trial Court denied default bail to the accused by holding that the 60 days will have to be computed by excluding the date of first remand. However, the Bombay High Court, under the impugned judgment noted that, excluding the first date of remand while computing the period of 60 days was erroneous and held that the filing of the Charge Sheet by the ED on 13.7.2020, being on the 61st day, would entitle the respondents to default bail. An accused becomes entitled to default bail if the chargesheet isn’t filed by 61st or the 91st day of the remand, the Bench stated. The Bench reserved the judgement to be pronounced on a later date.
Separate Notice not required for Recovery of Excise Duty Refund granted Erroneously COMMISSIONER OF CENTRAL EXCISE vs M/S. MORARJEE GOKULDAS CITATION: 2023 TAXSCAN (SC) 139
A Two-Judge Bench of the Supreme Court ruled that a separate notice under Section 11A of the Central Excise Act of the Central Excise Act is not required for the recovery of an erroneous refund granted after the expiry of the prescribed time limit for filing a refund claim. It was thus clarified that, once the order originally sanctioning the refund came to be set aside, there was no need for any further notice under Section 11A of the Central Excise Act. The court thus held that from the scheme of the Central Excise Act, it is quite apparent that where proceedings under Section 35E of the Central Excise Act are initiated and an appeal is filed against the order sanctioning a refund, there is no need to issue any notice under Section 11A of the Central Excise Act.
The Bombay High Court on Thursday disposed of four tax petitions filed by actor Anushka Sharma and asked her to approach the appellate authority under the Maharashtra Value Added Tax Act for addressing the issue of demand of Sales Tax by the department. “She is providing her services and earning income through contract for services and not through contract of services (Not employed with anybody). Therefore, under Section 17 of the Copyright Act 1957 she is first owner of Copyrights created in her artistic performances,” the affidavit stated. Nevertheless, the Bombay High Court disposed of the petition granting the petitioner the liberty to file an appeal against the impugned order of sales tax demand.
The Gujarat High Court dismissed Time Barred Re-Assessment Notices and ruled that the Taxation and Other Laws (Relaxation & Amendment of Certain Provisions) Act (TOLA) cannot override the provisions of Finance Act, 2021. The Bench of Justices NV Anjaria and Niral R Mehta, observed that “In view of the above, all the impugned notices in the respective petitions under section 148 of the Act relatable to Assessment year 2013-14 or the assessment year 2014-15, are beyond the permissible time limit, therefore, liable to be treated illegal.” “The Taxation and Other Laws Act, 2020 is a secondary legislation and a secondary legislation would not override the principal legislation-the Finance Act, 2021” the Bench concluded.
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