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 November 21 to November 24, 2022.
PIYUSH AMBALAL GANDHI vs DY COMMISSONER OF INCOME TAX CIRCLE 2 –2022 TAXSCAN (HC) 923
A division bench of the Gujrath High Court by allowing a petition held that re-assessement power could not be exercised for the purpose re-verification. After considering the contention of the both side, the bench of Justice N.V.Anjaria and Justice Bhargav D. Karia allow the petition and observed that “Condition for taxability of policy surrender value is that the amount invested was claimed as relief under Section 80CCC (1) of the Act which is not the case here.” Hence the re-assessment powers could not be exercised either for the purpose of re- verification or to have a merry sailing for a rowing inquiry.
GPL-RKTCPL JV vs NATIONAL FACELESS ASSESSMENT CENTRE –2022 TAXSCAN (HC) 922
A Division Bench of the Delhi High Court transferred matter to Higher Bench to decide admissibility of writ petition when jurisdictional Assessing Officer (AO) was located outside National Capital Territory (NCT) of Delhi. The petitioner in the present appeal is RKKR Foundation. The Bench consisting of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed that “Keeping in view the complexity of the legal issues involved and since we have doubted the correctness of the view expressed by a coordinate bench of this Court in RKKR Foundation wherein it had decided to exercise its jurisdiction in a similar matter where the JAO was located outside the NCT of Delhi, we are of the considered view that the aforesaid questions of law requires to be settled and decided by way of an authoritative pronouncement by a larger bench of this Court.”
Pooja Singhal vs Directorate of Enforcement –2022 TAXSCAN (HC) 921
Recently in a significant case in connection with Money laundering, the Jharkhand High Court denied bail to Indian Administrative Services (IAS) officer Pooja Singhal and held that Property derived or obtained as a result of criminal activity was regarded as tainted property. The Court viewed that a sum of Rs.01.33 crore had been deposited in the form of cash in the name of the brother of her Chartered Accountant and her mother and therefore, it cannot be said that she was not using the proceeds of the crime in light of section 2(1)(u) of the PML Act.
M/S ROCKLAND MEDIA AND COMMUNICATION PVT. LTD vs UNION OF INDIA AND 5 ORS –2022 TAXSCAN (HC) 917
In a relief to the taxpayers who could not avail the GST transitional credit due to technical glitches on the portal and thereafter manually, the Gauhati High Court has directed the assessee to avail the benefit of re-opening of the portal till 30th November. Justice Michael Zothankhuma observed that in terms of the Circular No. 180/12/2022-GST dated 09.09.2022, the time period for availing transitional credit through Tran- & Tran-2 has been extended up to 30.11.2022. “In view of the submissions made by the counsels for the parties and as per their agreement, the writ petition is disposed of to enable the petitioner to take the benefit of the order dated 22.07.2022 passed by the Apex Court in Union of India & Anr v. Filco Trade Centre Pvt. Ltd & Anr. and the Circular No. 180/12/2022-GST dated 09.09.2022,” the High Court observed.
Graphic aids vs Sales Tax Officer –2022 TAXSCAN (HC) 919
Considering the fact that the GST department has recovered more than 50% of the total dues, a division bench of the Calcutta High Court has kept the garnishee order in abeyance. A bench of Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya has partly allowed the appeal and set aside the order with a direction to the appellant to file an application before the revisional authority clearly setting out all facts and requesting the revisional authority to recall the order disposing of the revisional application and if such an application is filed, the revisional authority shall take up the same and pass a speaking order on merits and in accordance with law after affording an opportunity of personal hearing to the authorised representative of the appellant.
M/S DABUR INDIA LIMITED vs COMMISSIONER OF INCOME TAX (TDS) AND ANOTHER –2022 TAXSCAN (HC) 920
In an interim relief to M/s Dabour India Limited, a division bench of the Delhi High Court has directed the income tax department to re-consider the stay applications. Directing a re-consideration of the applications, the division bench has held that “the impugned order is set aside and the matter is remanded back to the Commissioner of Income Tax for fresh decision on the application for stay. However, before deciding the stay application, the Commissioner of Income Tax shall grant a personal hearing to the authorised representative of the Petitioner. For this purpose, list the matter before the Commissioner of Income Tax on 05th December, 2022.”
ROHUL AMIN vs STATE OF ASSAM –2022 TAXSCAN (HC) 916
A Single Bench of the Gauhati High Court rejected anticipatory bail on GST evasion case as there was repeated calling from the side of Rohul Amin, the petitioner in the present case to compromise matter. The Bench of Justice Kalyan Rai Surana while disallowing the anticipatory bail noted that “The informant has referred to mobile call screenshots to project that the petitioner had been repeatedly calling the informant and Anjuman Kumar Sharma to mount pressure to them to compromise the matter. This does amount to breach of the conditions on which interim pre-arrest bail was granted to the petitioner. Under such circumstances, the Court does not find this to be a fit case for grant of pre-arrest bail to the petitioner.”
MAHABIR JAIN SHYAMSUKHA vs CENTRAL BUREAU OF INVESTIGATION –2022 TAXSCAN (HC) 915
The Gauhati High Court granted bail to Mahabir Jain a businessperson who was arrested in connection to the GST Commissioner Bribery case. A Bench of Justice Robin Phukan observed that “Having regards to the nature of accusation and the punishment prescribed for the same, as well as the submission of the Advocates of both sides, more specially the period of detention, and further keeping in mind the dictum of the Supreme Court in Satender Kumar Antil, I am of the considered opinion that further custodial detention of the accused seems to be unwarranted and it is a fit case where the privilege of bail can be extended to the accused.”
Nuvoco Vistas Corporation Ltd vs The Union of India and Ors– 2022 TAXSCAN (HC) 914
The Bombay High Court allowed to file GST TRAN-1 regard to distribution and eligibility of ISD credit of Service Tax, and thereby granting relief to Nuvoco Vistas Corporation Ltd, the petitioner. A Bench consisting of Justice KR Shriram and Justice AS Doctor observed that “The petitioner, through its respective units/offices registered under CGST Act and/or State Acts, as the case may be, can avail this window and file GST TRAN-1/revised GST TRAN-1 at the units/offices. The GST TRAN-1/revised GST TRAN-1 filed by the units/offices will be basis the manual ISD invoices issued/to be issued by ISD of petitioner subject to aggregate credit cumulatively not exceeding the ISD credit available with petitioner of Rupees Thirteen Crores Forty Three Lakh Nine Two Thousand and Nineteen.”
ICAi Vs UNION OF INDIA & ANR. –2022 TAXSCAN (SC) 202
While considering a petition by the Institute of Chartered Accountants of India (ICAI) challenging the eligibility criteria of an accountant member appointed to the Income-tax Appellate Tribunal under the Income-tax Act, 1961, the Supreme Court has issued notice to the centre. A Bench of Justices M.R. Shah and M.M. Sundresh issued notice on Monday, stated that “Application for amendment is allowed. Issue notice, returnable on 02.01.2023. Dasti, in addition, is permitted.”
COMMISSIONER OF COMMERCIAL TAXES vs TATA STEEL LIMITED –2022 TAXSCAN (HC) 913
In a major relief to Tata Steel, the Calcutta High Court has allowed a plea seeking to grant of refund of excess CST paid as a purchasing dealer. Justice T.S. Sivagnanam and Justice Supratim Bhattacharya observed that the lower rate of tax granted is under a Central Legislation and the State of West Bengal is only an agent of the Central Government to collect the correct rate of tax in accordance with the provisions of the CST Act.
Euro Pratik Sales Corporation vs Union of India and Ors –2022 TAXSCAN (HC) 912
The Bombay High Court ordered Restoration of Cancelled GST registration for ITC (Input Tax Credit) Transition of Rs thirty -nine lakhs. A Bench consisting of Justice K R Shriram and Justice AS Doctor observed that “Here is a case, in our view, petitioner cannot be permitted to forgo a sum of Rupees thirty-nine lakhs which according to petitioner is entitled to deemed excised credit particularly when under sub-section 3 of Section 29 his liability will continue even after cancellation of registration. It will be wholly unfair if petitioner ends up having to forgo the deemed excise credit of a substantial amount.”
PRINCIPAL COMMISSIONER OF INCOME TAX vs RISHIKESH BUILDCON PVT. LTD– 2022 TAXSCAN (HC) 910
The Delhi High Court quashed penalty under Section 271D of the Income Tax Act, 1961 on the ground that there was lapse of six months on penalty proceedings on violation of cash transactions under Section 269SS of the Income Tax Act. A Bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed that “The ITAT was correct in law in deleting the penalty imposed by the Additional Commissioner of Income Tax, under Section 271D of the Income Tax Act, on the ground that the penalty order, was passed beyond the time period prescribed by Section 275(1)(c) of the Income Tax Act, the same having been passed after the lapse of six months from the end of the month in which the penalty proceedings were initiated by the AO.”
M/s. Renaissance Global Limited vs . Union of India – 2022 TAXSCAN (HC) 911
A Division Bench of the Bombay High Court ruled that Customs Act has no jurisdiction with in Special Economic Zone (SEZ)Act, 2005and held that M/s. Renaissance Global Limited eligible for Customs Duty Exemption on import of scrap jewellery. A Bench consisting of Justice AS Doctor and Justice K R Shriram observed that the Customs Act have no jurisdiction to investigate, seize and issue SCN under SEZ Act and quashed all the notices and orders issued by the Respondents. The petitioner was also held eligible for customs duty exemption on import of scrap jewellery.
A.M.Ahamed & Co. vs Commissioner of Customs –2022 TAXSCAN (HC) 909
The Madras High Court (HC) has held that the Order passed by Settlement Commission cannot be adjudicated by co-noticees, Customs duty over CHA is not imposable. The Division Bench considered the order passed by the Settlement Commission and concluded that when the importer had escaped liability, the CHA cannot be mulcted with a liability and the benefit has to ensure in favour of the CHA also. Accordingly, the writ appeal came to be dismissed by an order dated 02.07.2015. It was observed by the HC that once an order of settlement is passed by the Settlement Commission, the case cannot be adjudicated by other co-noticees. Further observed that if the proceedings against the importer have come to an end, it will be discriminatory and unfair to continue the proceedings against the CHA in relation to the very same transaction.
Birsa Minerex vs Sales Tax Officer –2022 TAXSCAN (HC) 908
A division bench of the Orissa High Court, while invalidating a VAT re-assessment order has held that the same cannot be made solely on the basis of audit objection under the Orissa VAT Act. Quashing the assessment, the Court held that “In absence of power of review conferred by or under the statute, in the garb of reassessment, the concluded assessment could not be reopened by the Assessing Authority. As the material available on record does not show independent application of mind of the Assessing Authority having regard to the material in his possession, if any, merely based on objection of Auditor General, Odisha issue of notice in Form IVA in exercise of power under Rule 12(4) of the CST(O) Rules for reopening Audit Assessment concluded under Rule 12(3) on examination of books of account, etc. is impermissible in law and such an action is without jurisdiction.”
VIKRAM BHATNAGAR vs ASSISTANT COMMISSIONER OF INCOME TAX –2022 TAXSCAN (HC) 904
The Delhi High Court has held that the notice served under section 143(2) of Income Tax Act in the name of dead assesse is null and void. The high court bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora held that the assessment order was null and void referring Savita Kapila vs. Assistant Commissioner of Income Tax. The high Court observed that the notice under Section 143(2) of Income Tax Act of was issued against the dead person and the assessment order had also been passed against the dead person on his PAN without bringing on record of legal representatives. And set aside the assessment order and all consequential notices.
RSB Transmissions (India) Limited vs Union of India –2022 TAXSCAN (HC) 907
A division bench of the Jharkhand High Court has held that the electronic cash ledger (ECL) is merely an “e-wallet” and therefore, the liability to pay interest arises on delayed filing of GSTR-3B return and debit of tax due from the Electronic Cash Ledger are independent. Dismissing the plea of the assessee, the Court concluded that “discharge of tax liability is simultaneous with the filing of GSTR 3B return under the scheme of GST regime and the provisions of GST Act intended to ensure seamless flow of movement of goods and services and payment of tax by the registered persons in the form prescribed through a digital mode maintained by GSTIN.”
Rakesh Kumar Singh vs – State Thru C.B.I./S.T.F. –2022 TAXSCAN (HC) 905
The Allahabad High Court has rejected a bail application by the then tax assistant for the alleged offense of granting fake refund claims by tampering with the electronic evidences and computer records. The petitioner, requested for bail. Opposing the bail application, the CBI submitted that similar applications filed by co-accused, Sanjeev Kumar Sinha and Arun Kumar Srivastava, have been rejected by this Court vide detailed common order dated 27.07.2018. Referring to the above order, Justice Dinesh Kumar Singh observed that “Considering the fact that 482 applications filed by the said coaccused have already been rejected, this application is also rejected having no merit and substance. Interim order, if any, stands vacated.”
SRI MUNA PANI vs STATE OF ODISHA –2022 TAXSCAN (HC) 906
In a petition challenging the show-cause notice issued by the GST department on ground of discrepancies in the GSTR 3B, the Orissa High Court has held that the GST Act provides adequate safeguards,entertainment of the writ petition at the stage of notice would be premature. Doing so would frustrate the tax administration and interdict adjudication process.
K C ANTONY vs THE PRINCIPAL COMMISSIONER –2022 TAXSCAN (HC) 902
The Kerala High Court, recently ruled that no limitation is prescribed under the Income Tax Act, 1961 for filing application for condonation of delay. A Single Bench consisting of Justice Gopinath P observed that “The delay to be condoned was not to be considered with reference to the date on which the application under Section 119(2)(b) of the Income Tax Act was filed, but with reference to the date on which the ‘application for refund’. Section 119(2)(b) of the Income Tax Act does not impose any limitation for the purposes of filing an application for condonation of delay.”
Tata Steel Limited vs State of Jharkhand –2022 TAXSCAN (HC) 901
In a major relief to Tata Steels, a division bench of the Jharkhand High Court has granted an interim stay of recovery of VAT demand subject to payment of 20% of demand. The petitioner, Tata Steels approached the High Court challenging an order of the Commercial Taxes Tribunal, pertaining to the Assessment Year 2002-03 wherein the Tribunal upheld there assessment proceedings initiated upon audit objection under section 17(2) read with section 19(1) of Bihar Finance Act, 1981.
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