Tax Cases Weekly Round-Up:26 June To 2 July, 2022

Madras High Court:

IBC Proceedings Can't Dilute Rights Of The Income Tax Department To Reopen Assessment: Madras High Court

Case Title: M/s. Dishnet Wireless Limited versus the Assistant Commissioner of Income Tax (OSD)

The Madras High Court has ruled that proceedings under the Insolvency and Bankruptcy Code (IBC), 2016 cannot dilute the rights of the Income Tax Department to reopen the assessment under Section 148 of the Income Tax Act, 1961.

The Court noted that the Resolution Plan submitted by the assessee did not contemplate any concession from the Income Tax Department, even though notice under Section 148 of the Income Tax Act was issued to the assessee prior to the submission of the Resolution Plan.

Writ Petition Not Maintainable If Alternative Statutory Remedy Was Available With The Taxpayer: Madras High Court Reiterates

Case Title: M/s. Progressive Stone Works Versus The Joint Commissioner (ST)

Citation: 2022 LiveLaw (Mad) 271

The Madras High Court has reiterated that a writ petition is not maintainable if an alternative statutory remedy was available to the taxpayer.

"The petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007. Therefore, this writ petition cannot be entertained ignoring the statutory dispensation", the Single Bench of Justice C. Saravanan observed.

Meghalaya High Court:

AssesseeTo Be Given Minimum 7 Days Time To Respond To The Reassessment Notice: Meghalaya High Court

Case Title: Highgrowth Commodities Trade Private Limited Versus The Principal Commissioner of Income Tax & Ors.

The Meghalaya High Court bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh has held that the assessee should be given a minimum of 7 days' time to respond to the reassessment notice.

The assessee had challenged the notice under Section 148 of the Income Tax Act, 1961 on the ground that the notice had been issued without following the mandatory procedure under Section 148A of the Income Tax Act.

Rajasthan High Court :

Protection Plea: Rajasthan High Court Permits Police To Charge Married Couple If It Has Adequate Income

Case Title: Pooja Gurjar & Anr. v. State Of Rajasthan & Ors.

Citation: 2022 LiveLaw (Raj) 199

While hearing a protection petition filed by a married couple before the Rajasthan High Court, the vacation bench of Justice Sameer Jain observed that if the petitioner's income is more than taxable income under the Income Tax Act, 1961, the Superintendent of Police after considering the financial aspect may charge appropriate financial charges from them.

ITAT:

Fee Paid For Client Referral Services Is A Normal Business Payment And Not FTS: ITAT Delhi

Case Title: M/s. Hemera India Pvt. Ltd. versus DCIT

The Delhi Bench of ITAT has ruled that fees paid by the assesssee to a non-resident for providing services of introduction of clients would fall in the definition of payments made to an intermediary and the same cannot be said to be a technical service.

The Bench, consisting of Anubhav Sharma (Judicial Member) and Shamim Yahya (Accountant Member), held that the remittances made by the assessee to its intermediary for providing client referral services would not come within the scope of 'fees for technical services' (FTS) under Section 9(1)(vii) of the Income Tax Act, 1961 and that the same was a normal business payment.

Expenditure Incurred After Set-Up of Business Is Allowable As Deduction, Even If No Business Income Is Earned By The Assessee : ITAT Chennai

Case Title: RBL Hotels Private Limited versus ACIT

The Chennai Bench of ITAT has ruled that once the business of an assessee is set-up, all the expenditure incurred by it would be allowable as deduction, notwithstanding the fact that no business income was earned by the assessee during the relevant year.

The Bench, consisting of Mahavir Singh (Vice President) and Manoj Kumar Aggarwal (Accountant Member), reiterated that there may be an interval between the setting-up of a business and the commencement of a business, however, all the expenses incurred during the said interval would be available as deduction.

Reassessment Proceedings Can't Be Initiated On Same Set Of Facts Available: ITAT

Case Title: Bombay Real Estate Development Co. P. Ltd. Versus ITO

The Mumbai Bench of the Income Tax Appellate Tribunal (ITAT) has held that the reassessment proceedings cannot be initiated by applying a fresh application of mind to the same set of facts available at the time of the original scrutiny assessment proceedings.

The ITAT observed that where the reasons recorded by the Assessing Officer disclose no more than a mere change of opinion, the reassessment proceedings and assessment order pursuant thereto are liable to be quashed.

AAR :

Supply Of Printed Leaflet Product As Per Content Supplied By Recipient Is A "Composite Supply": AAR

Applicant's Name: Coronation Arts Crafts

The Tamil Nadu Authority of Advance Ruling (AAR) comprising of T.G. Venkatesh and K. Latha has held that the supply of printed leaflet products as per content supplied by the recipient is a composite supply as defined under Section 2(30) of the CGST/TNGST Act 2017 with "Supply of service of printing" as the principal supply

Supply Of U-Bolt And Front Spring Bolt Made Up Of Steel Attracts 18% GST: AAR

Applicant's Name: Ultra Tech Suspension Private Limited

The Uttarakhand Authority of Advance Ruling (AAR) consisting of members Anurag Mishra and Rameshwar Meena has ruled that 18% GST is payable on the supply of UBolt and Front Spring Bolt made up of steel.

The AAR observed that the applicant's spring pins were made of various types of steel and had the appearance of springs. Hence, the AAR ruled that they were covered under the subheading "Other," by the CTH 7320, which aptly covers iron or steel springs and leaves for springs.

CESTAT:

Extended Period Of Limitation Can Be Invoked Only When"Suppression Of Facts" Is Wilful To Evade Tax : CESTAT

Case Title: M/s T.S. Motors India Private Ltd. Versus Commissioner of CGST & Central Excise, Lucknow

The Allahabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that even when an assessee has suppressed facts, the extended period of limitation can be evoked only when "suppression" is shown to be wilful with intent to evade the payment of service tax.

Empty Packaging Material Of Cenvatable Input Is Not Liable For Payment As Excise Duty Or As CENVAT Credit: Reiterates Ahmedabad CESTAT

Case Title: Cadila Healthcare Ltd. versus C.C.E. & S.T.-Vadodara-I

The Ahmedabad Bench of CESTAT has ruled that empty packaging material of cenvatable input is not liable for payment either as excise duty or as CENVAT credit under Rule 6(3) of the CENVAT Credit Rules, 2004.

Short Payment Of Excise Duty Is Not Sufficient To Invoke The Extended Period: CESTAT

Case Title: M/s. MIRC Electronics Ltd. Versus Commissioner of GST & Central Excise, Mumbai

The Mumbai Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) consisting of Ajay Sharma (Judicial Member) has held that a short payment of excise duty is not sufficient in order to invoke the extended period.

Scrap Generated After The Process Of Manufacture Is Not Includible In Assessable Value Of The goods Cleared By The Job Worker: CESTAT

Case Title: M/s. Unimech Industries Private Limited Versus The Commissioner of Central Excise

The Chennai Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has ruled that the scrap generated after the process of manufacture is not includible in the assessable value of the goods cleared by the job worker to the principal manufacturer.

TCS Collected Under Income Tax Act On Sale Of Goods Cannot Be Included In The Assessable Value For Charging Excise Duty: Ahmedabad CESTAT

Case Title: Yashraj Containeurs Ltd. versus C.C.E. & S.T.-Daman

The Ahmedabad Bench of CESTAT has ruled that the amount of TCS collected under theIncome Tax Act, 1961 on the sale of goods cannot be considered as an additional consideration flowing to the assessee from the buyer of the goods and, therefore, the TCS collected by the assessee cannot be included in the assessable value for charging Excise Duty.

The Bench, consisting of Mr. Ramesh Nair (Judicial Member) and Mr. Raju (Technical Member), held that since the TCS was collected by the assessee as a tax and not as an additional consideration, and since the said TCS was deposited to the income tax department, therefore, it could not be said that the amount of TCS collected by the assessee belonged to it.

Notifications/Policy:

Haryana Electric Vehicle (EV) Policy, 2022; Several Incentives For Manufacturers And Buyers

The Haryana Government has approved the Haryana Electric Vehicle (EV) Policy, 2022, declaring 2022 as the "Year of the Electric Vehicles" in Haryana.

Key Highlights Of The Recommendations Made By The GST Council In Its 47th Meeting

The GST Council, in its 47th Meeting held on the 28th and 29th of June, 2022, has made certain recommendations relating to changes in the GST rate. Certain changes were also recommended relating to the GST law and procedure.

GST Council Constitutes GoM For GST Appellate Tribunal; Supreme Court Had Directed The Centre That A Tribunal Must Be There

GST Council, in its 47th Meeting held on the 28th and 29th of June, 2022, has decided to constitute a Group of Ministers (GoM) to address the concerns raised by the States relating to the constitution of the GST Appellate Tribunal as well as for recommending appropriate amendments to the CGST Act, 2017.

The Supreme Court, in a PIL filed in 2021 by Advocate Amit Sahni, seeking constitution of the GST Appellate Tribunal, had directed the Central Government that an Appellate Tribunal has to be there.

Appointment Committee Approves The Appointment of Nitin Gupta As CBDT Chairman

Notification No. 31/1/2022

The Appointment Committee of the Cabinet has approved the appointment of IRS Officer Nitin Gupta as the chairperson of the Central Board of Direct Taxes (CBDT).

Chip Import Monitoring System Is Applicable For Air/Sea Shipments: DGFT

Policy Circular No. 40/2015-2020

The DGFT has clarified that the importer may include multiple products with one registration number, however, a separate registration number is required for each shipment. The DGFT further clarified that the Chip Import Monitoring System (CHIMS) is applicable for air/sea shipments also, and that the CHIMS registration can also be made on the same day of arrival of import.