This weekly round-up analytically summarises the key tax judgements of the Supreme Court and all High Courts reported at Taxscan.in during the previous week from April 30 to May 5, 2023.
In the recent ruling in State of Himachal Pradesh and Others vs M/s A J Infrastructures Pvt. Ltd. and Another, a two-judge Bench of the Supreme Court of India held that Section 16B of the Himachal Pradesh General Sales Tax Act, 1968 (HP GST Act) is not in violation of any provision of law including the SARFAESI Act and the Constitution of India.
The bench stated that since the writ petition was rendered infructuous before the High Court’s ruling, it was unnecessary for the High Court to determine the validity of Section 16B.
The Supreme Court has recently held that State cannot use the Himachal Pradesh Land Revenue Act, 1954 (HPLR Act) to recover sales tax dues as arrears of land revenue by creating a charge on the mortgaged property under Section 16B of the HP General Sales Tax Act.
The Two-Judge Bench of Supreme Court Justices S Ravindra Bhat and Dipankar Datta noted that, “While adopting such a stand, the State and its department either overlooked or were ignorant of the requirement of law that section 16B would be attracted only after determination of the liability and upon any sum becoming due and payable; and that, it is only thereafter that the charge, if any, would operate.”
The Supreme Court, while considering an application filed by the Government of NCT of Delhi in a petition filed by M C Mehta, to utilise Rs. 500 Crores of Environment Compensation Charge (ECC) Fund towards the payment of Delhi -Meerut RRTS project, has held that the tax component of payment is refundable.
The Apex Court Bench of Justices Sanjay Kishan Kaul and Ahsanuddin Amanullah directed the Delhi Government to contribute Rs. 500 Crores which includes tax liabilities from ECC fund within ten days.
The Supreme Court of India directed Income Tax Appellate Tribunal (ITAT) to ensure that the appeals are e- filed and not physically filed.
The Coram comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala noted that “As regards the ITAT, it is incumbent on the tribunal to ensure that revenue appeals are filed only in the e-filing mode and a target date of 30 June 2023 should be set down. The Ministry of Finance shall depute a senior officer to engage with the Acting President of the ITAT. If the rules are required to be amended, they should be amended to incorporate e-filing requirements.”
In a major decision the Supreme Court of India ruled that the cooperative credit society is eligible for income tax exemption under Section 80(P)(2) of Income Tax Act, 1961.
The Division Bench consisting of Justices MR Shah and CT Ravikumar observed that “Even otherwise, on merits also and taking into consideration the CBDT Circulars and even the definition of Bank under the Banking Regulation Act, the respondent/Assessee cannot be said to be Co-operative Bank/Bank and, therefore, Section 80(P)(4) shall not be applicable and that the respondent/Assessee shall be entitled to exemption/benefit under Section 80(P)(2) of the Income Tax Act.”
The Supreme Court has recently upheld the quashing of reassessment proceedings by the jurisdictional High Court and dismissed a bunch of appeals of the revenue in the absence of any incriminating evidence against the respondents.
The Top Court thus held that the High Court has rightly set aside the Assessment Order(s) , refusing to interfere with the impugned judgement and orders passed by the High Court.
The Supreme Court of India has recently held that the assessee is not entitled to take the total contract value which includes both goods and services and remit service tax on the value as works contract service and, in the process, also entitled to avail the CENVAT Credit on the entire amount.
In view of the above, the two-judge Supreme Court Bench of Justice M R Shah and Justice Krishna Murari quashed and set aside the impugned judgement and order passed by the CESTAT.
The Supreme Court of India has recently held that the provision for prosecution and punishment under Section 140(5) of the Companies Act, 2013 is neither discriminatory, arbitrary and/or violative of the Constitution of India.
The Bench, in consideration of the contentions of the representatives, set aside the impugned judgement and order passed by the High Court quashing and setting aside the direction under Section 212(14) of the Companies Act, 2013 dated 29.05.2019 issued by the Union of India to SFIO.
In a recent decision the Supreme Court quashed the disallowance of rebate to a trust in spite of having valid registration in the previous years.
The Two-Judge Bench consisting of Justices MR Shah and CT Ravikumar observed that “The Assessing Officer was justified in granting the benefit of exemption under Section 12A of the Income Tax Act for the assessment year 2010-2011. What was required to be considered was the relevant provision prevailing in the year 1987, namely, the day on which the assessee applied for the registration. At the relevant time there was no requirement of issuance of any certificate of registration.”
The Supreme Court has rejected the Special Leave Petitions (SLP) filed by the Gujarat Sales Tax Department against GAIL (India) Limited, ending a long-standing legal dispute.
The court held that the price fixation was never under challenge before the Tribunal and that the question was answered in favour of the appellant and against the Revenue. As a result, the judgement of the Tribunal was reversed, and the appeal of the assessee was allowed.
The Supreme Court of India in its recent judgement gives a split Verdict directing to place the matter before the Chief Justice of India for appropriate orders since there was a divergence of opinion on the availability of settlement remedy to Non-Resident Indian (NRI) for misdeclaration of goods under Customs Act, 1962.
It was observed that if a passenger opts for the green channel mode of entry, it implies that the passenger, by not opting for the red channel mode of entry, is stating that he has no goods that are liable to duty, and hence, it is deemed that they are making a declaration under Section 77 of the Customs Act of carrying “Nil” dutiable goods.
The Supreme Court has declared that medicated prickly heat talcum powder ‘Nycil’ is a cosmetic and does not fall under the category of medicines or drugs, making its manufacturer Heinz India Ltd liable to pay a higher rate of tax.
The Two-Judge Bench referred to the Tamil Nadu General Sales Tax Act, which explicitly included talcum powder, medicated or otherwise, in the list of cosmetics. The court emphasised that all kinds of talcum powders containing medication, regardless of the amount or proportion, should be considered cosmetics, leaving no room for interpretation.
A Division Bench of the Telangana High Court, observed that the properties attached under the PMLA (Prevention of Money Laundering Act, 2002) shall be released upon closure of the case against their owners, either through acquittal or settlement through compromise.
The division bench relied on the judgement of the Supreme Court judgement in Vijay Madanlal Choudary case, wherein it was held that the final acquittal from a scheduled offence or criminal case by competent authority implied there could be no offence. It also stated that it was immaterial whether the acquittal was on merit or compromise.
A Division bench of Patna High Court granted relief to the petitioner due to the absence of the Goods and Appellate Tribunal (GSTAT). The High Court stayed the recovery of the balance amount of the Goods and Services Tax (GST).
Further observed that the petitioner cannot be deprived of the benefit, due to the non- constitution of the tribunal by the respondents themselves.
In a recent judgement, the Kerala High Court set aside the assessment order passed without giving the reason for denying the claim of ITC on capital goods under the Kerala Value Added Tax Act (KVAT Act).
A two-judge bench comprising Justice A K Jayasankaran Nambiar & Justice Mohammed Nias C P observed that the agreement entered into between the parent company of Prodair and BPCL was for a works contract, for setting up a production plant for BPCL’s exclusive purpose and the consideration was given as deferred payment through the Fixed monthly charges of around Rs. 30 crores per month, which help the dealer to recoup their investment in 15 years and also collected the value of industrial gases supplied to them as variable charges based on actual reading.
The Income Department had permitted only 13 hours to file a reply to show cause notice (SCN) issued to the assessee. The assessment was overturned and a re-adjudication was mandated by the Madras High Court’s Single Bench of Justice M. Dhandapani.
The bench noted that there was a blatant disregard for natural justice norms. As a result, the first respondent’s disputed order was dismissed and the respondents were given a further chance to weigh in on the case.
A Division Bench of the Orissa High Court noted that the tribunal had neglected to provide a justification for its decision to exercise its authority under Section 43(2) of the Orissa Value Added Tax Act, 2004 (OVAT Act) to impose a penalty equal to the amount of tax determined under Section 43(1) while it was considering the petition.
The division bench noticed infirmity in exercise of power and improper use of discretion to impose a penalty under Section 43(2) of the OVAT Act by the Odisha Sales Tax Tribunal.
The Allahabad High Court has held that the 4 months limit should be liberally interpreted and restored the appeal filed under section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017 on the 121st day.
A single-judge bench comprising Justice Dinesh Kumar Singh observed that the four months in the appellant’s case come with around 121 days and the appeal was filed on the 121st day.
The Calcutta High Court allowed the filing of the time-barred appeal since Form GST DRC01 was uploaded to the GST Portal by the department which was failed to notice by the assessee.
The two-judge bench comprising Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya observed that the appeal should not be treated to be as time-barred, since the appellants had responded to the first intimation.
Delhi High Court in its recent judgement held that information about the goods must be produced within a reasonable time by the person in whose custody the goods were found.
A Coram comprising Justice Vibhu Bakhru and Justice Amit Mahajan observed that “it would be open for a person found in the custody of goods to produce the relevant information in its possession in respect of the goods within a reasonable time on being required to do so by the Commissioner.”
In a recent ruling, a Single Bench of the Calcutta High Court stayed the impugned order attaching the bank account of the petitioner for the recovery.
The bench of Justice Md. Nizamuddin observed that the statutory limitation period mentioned under Section 112 of the West Bengal Goods and Services Tax Act, 2017 (WBGST) to file the appeal had not expired.
A Single Bench of Calcutta High Court directed the respondent Goods and Services Tax Network (GSTN) authorities to submit an affidavit regarding the dilemma on rectifying Goods and Services Tax Identification Number (GSTIN) of the service recipients in the Goods and Services Tax Portal (GST Portal).
The bench concluded by stating that no intermediate orders could be made in the case and that the respondent’s affidavit had to be filed for a final determination of the issue addressed in the writ petition.
The Delhi High Court allowed the appeal of poor daily wage earners against seizure of agarwood chips and oil without pre-deposit.
A Division Bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju observed that “The valuation of the goods seized, is also not in terms of the prices as set forth in the Government of Assam’s Agarwood Policy. No proper calculation has been made for the penalty levied. The penalty imposed on the Petitioners has been imposed based on a provisional valuation. The penalty imposed is therefore without any legal basis and cannot be sustained.”
A Division Bench of Acting Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya of Calcutta High Court set aside the order of the West Bengal Authority for Advance Ruling (WBAAR) and remanded the case to the same Authority for Advance Ruling to reconsider the application.
According to the bench, the term “applicant” has been construed in the broadest sense feasible to encompass any individual registered under the West Bengal Authority for Advance Ruling Act or seeking registration.
The Delhi High Court, in its recent judgement has held that cancelling GST Registration without considering Assessee’s Response to Show Cause Notice (SCN)is not valid.
A two-member bench comprising Justice VibhuBakhru and Justice Amit Mahajan observed that the impugned order dated 28.12.2020, cancelling the petitioner’s registration is unsustainable as it does not consider the petitioner’s response to the Show Cause Notice.
The Orissa High Court stayed the impugned tax demand since the Goods and Service Tax Appellate Tribunal was not constituted for considering the appeal.
A two-judge bench comprising Dr Justice B R Sarangi and Justice M S Raman held that “since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.”
The High Court of Karnataka allowed filing the revocation application since as per the latest GST notification on Revocation of GST registration, an application filed beyond the limitation period can be reapplied if the cancellation of the registration was made before 31.12.2022.
A single judge bench comprising Mr Justice B M Shyam Prasad held that the petitioner will be entitled to apply according to the special procedure now notified since the cancellation of the petitioner’s GST registration was before 31.12.2022. The petition was disposed of with giving liberty to the petitioner to avail such remedy subject to all just exceptions.
A Division Bench of the Bombay High Court has recently upheld the constitutionality of the Goa Tax in Entry of Goods Act, 2000.
The bench of Justice M S Sonak and Justice Valmiki Sa Menezes placed reliance on the decision of the Constitution Bench of the Supreme Court in Jindal Stainless Limited and another vs. State of Haryana and Ors. which had upheld the constitutional validity of entry taxes imposed by states on goods coming in from other states.
The Bombay High Court had recently upheld the levy of property tax by Panvel Municipal Corporation (PMC), while the plea against the retrospective levy was raised by the Kharghar Co-Operative Housing Society, Kharghar was dismissed.
The Bombay High Court Bench went on to note that, “A public body like the respondent-PMC cannot be placed in a cloud of such uncertainty when it comes to levy and recovery of municipal taxes. Thus, entertaining this petition would open floodgates of litigation before this Court. This more particularly, as none of the grounds as raised in the petition impresses us, so as to exercise our extraordinary writ jurisdiction by permitting these assessees to bypass the remedy of a statutory appeal.”
The Delhi High Court has recently remanded a matter to the assessing authority for fresh adjudication on the inter-state sales transaction claim of the assessee.
Justice Vibhu Bakhru and Justice Amit Mahajan stated that the assessing authority is requested to complete the proceedings within a period of three months, after giving due opportunity to the petitioner, by placing reliance on Indo Silicon Electronics Pvt. Ltd. and Surinder Pal and Sons-HUF.
A Single Bench of Justice Anita Sumanth of Madras High Court directed the Goods and Services Tax (GST) Department to release the blocked website to download C Form for the petitioner.
The bench observed that the Petitioner has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand is blocked from use. Upon the enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/s Ramco Cements Ltd can be extended only to those dealers that are party to the decision.
A Division Bench of the Delhi High Court has recently refused to condone revenue’s delay of 309 days in filing the appeal against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) that reduced the penalty imposed on Customs Broker Licence of the respondent to forfeiture of security deposit.
The bench also noted the infirmity caused by lack of service of notice on the respondent-assessee, along with the lack of sufficient reason for the delay in filing and rejected the appeal.
In a recent decision, a Single Bench of Justice Md. Nizamuddin of Calcutta High Court invalidated the reassessment order made by the Assessing Officer (AO) in violation of Section 148 of the Income Tax Officer, 1961, without the necessary clearance from the relevant authority.
The High Court noted that the Income Tax Authorities concerned would not be prevented from starting any further legal procedures in the future after seeking approval from the proper specified authority due to the quashing of the contested notice and related proceedings.
A Division Bench of Jammu & Kashmir and Ladakh High Court held in favour of the assessee that sales tax is not applicable on goods and material purchased by it from outside the State against C-Forms for the purpose of erecting/establishing transmission lines, substations and power grids.
According to the panel, it was abundantly clear from the definition of “sale” as it stood as of 15 May 1997 that the transfer of property in the form of goods or in any other way involved in the performance of a work contract constituted a “sale” as defined by Section 2(L) of the Central Goods and Services Tax Act and was subsequently subject to tax.
The Rajasthan High Court stated that if declarations, as in the present case, are digitally authenticated in the manner prescribed under Rule 26 of the CGST, non-submission of physically signed and scanned declarations may only be an irregularity, but not an illegality.
The Bench of Acting Chief Justice Manindra Mohan Shrivastava and Justice Anil Kumar Upman thus held that, “impugned order rejecting claim of refund and depriving the petitioner of the refund to which it may be entitled, without any authority of law, cannot be allowed to be sustained”, allowing the refund claim of the assessee.
Calcutta HC quashes Order against Resigned Director without connection to Alleged Offence under WB VAT Act Sushil Kumar Gupta & Ors. vs State of West Bengal & Anr. CITATION:2023 TAXSCAN (HC) 775
The Calcutta High Court has recently quashed the order directed against a resigned director who had no connection to the actual offence alleged to be committed under the West Bengal Value Added Tax Act, 2017.
The Bench of Justice Subhendu Samanta observed that, “It appears that the impugned order passed by the learned Magistrate is a cryptic one and he has not assigned any reason for passing the impugned order.”
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