Tax Monthly Digest: November 2024
Kapil Dhyani
3 Dec 2024 9:30 AM IST
SUPREME COURT DRI Officers Can Issue Show-Cause Notices Under Customs Act : Supreme Court Allows Review Against 'Canon India' Judgment Case Details : COMMISSIONER OF CUSTOMS vs. M/S CANON INDIA PRIVATE LIMITED Case no.: R.P.(C) No. 000400 - / 2021 The Supreme Court today (November 7) held that the officers of the Directorate of Revenue Intelligence(DRI) have the power...
SUPREME COURT
Case Details : COMMISSIONER OF CUSTOMS vs. M/S CANON INDIA PRIVATE LIMITED
Case no.: R.P.(C) No. 000400 - / 2021
The Supreme Court today (November 7) held that the officers of the Directorate of Revenue Intelligence(DRI) have the power to exercise powers under the Customs Act, 1962 to issue show-cause notices and recover duties The Court held that DRI officers are "proper officers" to issue show cause notices under Section 28 of the Customs Act, 1962.
"Subject to the observations made in the judgment, the officers of the Directorate of Revenue Intelligence, Commissionates of Customs-Preventive, Directorate General of Central Excise Intelligence, and Commissionates of Central Excise and other similarly situated officers are "proper officers" for the purposes of Section 28 of the Customs Act and are competent to issue show-cause notices," the Court held.
Case title: M/S BHARTI AIRTEL LTD. v. THE COMMISSIONER OF CENTRAL EXCISE, PUNE
Case no.: CIVIL APPEAL NOS. 10409-10410 OF 2014
The Supreme Court in a recent decision held that mobile service providers (MSPs) could avail the benefit of Central Value Added Tax/CENVAT Credit over excise duties paid on items such as mobile towers and prefabricated buildings.
The bench of Justice BV Nagarathna and Justice N Kotiswar Singh observed that since mobile towers and PFBs could be detached and relocated, they qualified as movable properties and accessories in enhancing the functionality of the mobile service antenna attached on top of the tower. Thus, the items qualified as 'capital goods' or 'inputs' which were indispensable to provide effective mobile services (output) and MSPs can get a credit set-off on these items.
HIGH COURTS
Allahabad HC
Case title: M/S Ashish Traders v. State of U.P.
Case no.: WRIT TAX No. - 1882 of 2024
The Allahabad High Court has held that an assessee is entitled to fresh notices demanding unpaid tax or short tax under Section 73 of the Goods and Service Tax Act, 2017, if the initial notices were not duly communicated to the assessee.
A division bench of Chief Justice Arun Bhansali and Justice Vikas Budhwar relied on Ola Fleet Technologies Pvt. Ltd. v. State of UP (2024) whereby “benefit of doubt” was given to the assessee since notices issued to it did not show up on the assessee's portal under the tab "view notices and orders".
Case title: Ankur Vikram Singh Respondent v. State of UP
Case no.: WRIT TAX No. - 1869 of 2024
The Allahabad High Court has held that the owner of an electric vehicle which was purchased prior to October 14, 2022 cannot seek refund of tax citing a subsequent notification exempting the payment of One Time Tax.
Petitioner had sought refund of One Time Tax paid in respect of his Hybrid Vehicle purchased on October 13, 2022. The relief was sought on the strength of a notification issued by the State providing tax exemption for electric vehicles purchased and registered from the date of notification of the Uttar Pradesh Electric Vehicle Manufacturing and Mobility Policy, 2022 i.e. October 14, 2022.
Case title: M/S Lakhdatar Traders v. State Of Up And 2 Others
Case no.: WRIT TAX No. - 1852 of 2024
The Allahabad High Court has set aside the demand and penalty order passed under Section 129 of the Central Goods and Services Tax Act 2017 against a trader whose GST registration came to be suspended, after it found that the goods in transit were accompanied with proper tax invoice and e-way bill.
A division bench of Chief Justice Arun Bhansali and Justice Vikas Budhwar relied on M/s Sahil Traders v. State of U.P. and another, 2023 wherein a coordinate bench had held that once the goods were found with proper tax invoice and E-way bill, the consignee will be deemed owner and goods will have to be released in terms of Section 129(1)(a) of the CGST Act.
Case title: M/S Batra Henlay Cables v. State Of U.P. and 2 Others
Case no.: WRIT TAX No. - 1927 of 2024
The Allahabad High Court has dismissed a writ petition claiming exemption from payment of road tax on an electric vehicle purchased from Jammu.
The Court also found substance in State's argument that part of revenue is lost when vehicle is purchased from outside the State and therefore, it held, “instead of making it open-ended exemption, the State is well within its power to impose the condition of purchase of vehicle within the State.”
Case Title: M/s A.V. Pharma Thru. Its Prop. Smt. Madhu Vohra v. State of U.P. Thru. Prin. Secy. State Tax Lko. and 2 Ors.
Case no.: WRIT TAX No. - 264 of 2024
The Allahabad High Court has held the time extension notification dated 24.04.2023 extending time period for passing orders under Section 73(9) and 73(10) of the Uttar Pradesh Goods and Service Tax Act, 2017 will apply only from 31.03.2023 and not before that.
“… the notification dated 24.04.2023 would be applicable retrospectively but only from 31.03.2023 meaning thereby, if the time limit of three years prescribed in sub Section 10 of Section 73 read with sub Section 1 of Section 44 expired prior to 31.03.2023 then the notificaiton dated 24.04.2023 extending the time limit for passing of an order under sub Section 9 of Section 73 would not be applicable, apparently so,” held the Division Bench comprising Justice Rajan Roy and Justice Manish Kumar.
Case Title: Agmotech Fabrics Private Limited v. State of Uttar Pradesh and Ors.
Case no.: WRIT TAX No. - 1757 of 2024
While deciding a case relating to Input Tax Credit, the Allahabad High Court has held that a quasi-judicial body must provide an opportunity of hearing to a person before imposing liability on them.
The Division Bench comprising Justice Shekhar B. Saraf and Justice Vipin Chandra Dixit held that as per the doctrine of audi alteram partem (let the other side be heard as well), such orders cannot be passed without providing the assessee a proper opportunity to make present their case. It was held that documents relied upon by the authorities while passing orders must be provided to party who is being held liable.
Bombay HC
Case Title: Credit Agricole CIB Services Private Limited v. Union of India & Ors
Case Number: WPL.No.23325 of 2024
The Bombay High Court stated that refund rejection order passed without hearing opportunity violates rule 92(3) of CGST Rules, 2017 and principles of natural justice.
The Bench of Justices M. S. Sonak and Jitendra Jain observed that “……in any event, proviso to Rule 92(3) of the CGST Rules, 2017, contemplates reasonable opportunity to be heard, implying that such hearing should be after the assessee files the reply within the time prescribed in the show cause notice.”
Calcutta HC
Case title: Principal Commissioner Of Income Tax-5, Kolkata Vs M/S. Delta Dealers Private Limited
Case no.: ITAT/148/2024
The Calcutta High Court has held that it cannot indulge in factual examination of the material produced or not produced by an assessee-company to explain the share capital and premium received by it, in an appeal filed under Section 260A of the Income Tax Act.
A division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya thus refused to interfere with an ITAT order which deleted additions made by the Assessing Officer towards “unexplained” share capital and share premium of Rs.15,51,00,000/- under Section 68.
Case title: Principal Commissioner Of Income Tax Central 2 Kolkata Vs Gpt Sons Pvt Ltd
Case no.: ITAT/195/2024
The Calcutta High Court has refused to apply Section 292B of the Income Tax Act, 1961 to a scrutiny notice issued in an amalgamating company's name, despite the Assessing Officer being aware about the company's amalgamation.
Department claimed that neither the assessee nor the amalgamating company informed the Assessing Officer about the scheme of amalgamation being approved by the High Court. However, the Court noted that in the reasons to believe which was appended to the notice the assessing officer has specifically referred to the details regarding the amalgamation.
Case Title: Anita Agarwal vs. Union of India
Case no.: Writ Petition No. 1474 of 2023
The Bombay High Court recently clarified that an exporter (Petitioner) is entitled to interest u/s 56 of the CGST Act for the period starting from the expiry of 60 days from the date of filing the shipping bill up to the date of grant of refund, although during the interregnum, the exporter's name was red flagged on the Customs' portal.
The High Court held so while considering the prayer for interest on delayed payment of refund of tax as per Section 56 of the CGST Act, 2017.
Case Title: Apollo Tyres vs. Union of India
Case no.: Writ Petition No. 15498 of 2024
The Bombay High Court recently clarified that writ courts shall not trench upon an alternate remedy provided by statute (Income tax Act) for granting any relief, by assuming jurisdiction under Article 226 of the Constitution.
Similarly, writ courts shall not act as a court of appeal against the decision of the lower court or Tribunals, to correct errors of fact, observed the Division Bench of Justice M. S. Sonak and Justice Jitendra Jain.
Case Title: B.V. Jewels vs. Union of India
Case Number: Writ Petition No. 2423 of 2024
The Bombay High Court ruled that the demand for interest u/s 28AA of the Customs Act raised for non-payment of demand, within three months of raising the demand, is properly tenable on the part of the Customs Authority.
Interest u/s 28AA is automatic, when there is a default or delay in payment of duty, added the Court.
Case Title: Oberoi Constructions vs. Union of India
Case Number: Writ Petition (L) No. 33260 of 2023
The Bombay High Court held that circumstances in which the appeals require some percentage of the demanded tax to be pre-deposited, do not render the appellate remedies any less efficacious. The High Court held so while considering an issue as to whether the demands are covered under the exemption notification or the notification providing for nil rate of taxes.
The Division Bench of Justice M S Sonak and Justice Jitendra Jain observed that the practice of instituting petitions bypassing the statutory remedies only to avoid a pre-deposit cannot be encouraged.
Case Title: Delphi World Money vs. Union of India
Case Number: Writ Petition No. 28914 of 2024
Observing that provisional acknowledgement automatically generated on Department portal shows that the requisite pre-deposit has been made, the Bombay High Court held that the Assessee had duly complied with the necessary pre-deposit required u/s 107(6) of the CGST Act.
The Division Bench of Justice M.S Sonak and Justice Jitendra Jain observed that in a similar matter in Bytedance (India) Technology Pvt Ltd vs. UOI [W.P (L) No.23724 of 2024], it was held by this court that “On the amount of pre-deposit, there is enough evidence annexed to the petition that the sum has been deposited and even the receipt is annexed to the petition. Therefore, to say that there is no pre-deposit in the impugned order is incorrect”.
Case title: Esjaypee Impex vs. Union of India
Case no.: Writ Petition No. 3793 of 2024
The Bombay High Court ruled that when the Revenue Dept. did not allege any malice on the part of Assessee in the context of disposal of the proceedings, then inaction on the part of Adjudicating Authority to dispose of the proceedings cannot be attributed to Assessees.
Finding that the Authority had passed the final order after a lapse of more than 16 years from the date of CESTAT's order, the Division Bench of Justice Ashwin D. Bhobe and Justice M.S Sonak observed that such inordinate delay in the conclusion of show cause notice will surely prejudice the petitioners.
Case Title: Grasim Industries vs. Chief Commissioner of Income Tax
Case Number: Writ Petition (LODG.) No. 17982 of 2024
The Bombay High Court recently clarified that the Chief Commissioner of Income Tax ought to have addressed the issues/justification as flagged by the taxpayer in supporting its case for grant of waiver of interest u/s 234C.
Such approach of Chief Commissioner of Income Tax would show non-application of mind to the material contentions raised by the petitioner/ assessee, added the Court.
Delhi HC
The Delhi High Court has made it clear that once scrutiny assessment is held under Section 143 of the Income Tax Act but due to a mistake of the Assessing Officer there is under assessment of income, reopening assessment under Section 147 of the Income Tax Act, 1961 is not permissible.
“...AO specifically records in the reasons that it was a 'mistake' which resulted in under assessment of the income…It is, therefore, manifest that AO has not attributed the alleged escapement of income to any failure on the part of petitioner but to a mistake and lack of verification on its own part. Petitioner cannot be allowed to suffer because of lapse of the AO.,” a division bench of Justices Yashwant Varma and Ravinder Dudeja observed.
Case title: Pr. Commissioner Of Income Tax Delhi -11 v. Sangeeta Jain
Case no.: ITA 1092/2018
The Delhi High Court has held that in order to invoke Section 263 of the Income Tax Act, 1961, the Principal Commissioner must satisfy “twin conditions”, i.e. form an opinion that the order passed by the Assessing Officer is “erroneous” and “prejudicial” to the interests of the Revenue.
The provision confers power of revision upon the Principal Commissioner or Commissioner, as the case may be.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma observed, “Twin conditions have to be met for assuming jurisdiction under Section 263 of the Act, and the PCIT has to form an opinion that the order passed by the AO is “erroneous” and “prejudicial to the interests of the Revenue.”
Case title: Commissioner Of Income Tax (Tds)-2 Delhi v. Turner General Entertainment Networks India Pvt. Ltd.
Case no.: ITA 547/2024
The Delhi High Court recently explained when an action for imposition of penalty under Section 271C of the Income Tax Act, 1961 can be said to have been “initiated”. Court held that the expression 'action for imposition of penalty is initiated' clearly refers to the date on which the first introductory step for such action is taken.
Case title: Commissioner Of Income Tax (Tds)-1 v. M/S Adma Solutions Pvt. Ltd.(Formerly Known As M/S Infovision Information Services Pvt.Ltd.)
Case no.: ITA 272/2019
The Delhi High Court has made it clear that incorrect mention of assessee's name in a notice issued to it for default in deduction of tax at source is a mere clerical error.
A division bench of Justices Yashwant Varma and Ravinder Dudeja thus held that show cause notice and penalty order passed under the previous name of a company cannot be rendered void.
Case title: Sanjay Bhandari v. Income Tax Office
Case no.: CRL.M.C. 805/2020, CRL.M.A. 3314/2020, CRL.M.A. 10806/2020, CRL.M.A. 10808/2020
The Delhi High Court has held that initiation of prosecution under Section 51 of the Black Money (Undisclosed Foreign Income and Assets and Imposition of Tax) Act, 2015 is not dependent on completion of assessment proceedings initiated against an accused under Section 10 to determine tax evasion.
Justice Dinesh Kumar Sharma observed, “Section 48 of the Black Money Act makes it clear that the offences and prosecution which falls in Chapter V of the Black Money Act are independent of any order made under this Act. It is relevant to note that the assessment under the Black Money Act is being made under Section 10, which falls in Chapter III of the Act…The initiation of the prosecution is not dependent on the completion of assessment, if the conditions as required under Section 51 Black Money Act are fulfilled.”
Case title: Commissioner Of Income Tax (TDS) - 2 v. National Highway Authority Of India
Case no.: ITA 1145/2017
The Delhi High Court has held that 'capital grant subsidy' which may be extended by the National Highways Authority of India to its contractors is not liable to TDS deduction under Section 194C of the Income Tax Act, since such grant cannot be construed as payment for a “work”.
Section 194C requires deduction of tax at source on any sum which may be paid to a contractor for carrying out any work. Capital grant subsidy is financial support which is rendered by NHAI to its Concessionaires in relation to projects where the revenue that the Concessionaire generates is less than the expected projection, rendering it unable to recover the total project cost.
[Confiscation] No Provision For Waiver Of Show Cause Notice U/S 124 Of Customs Act: Delhi High Court
Case title: Ms Shubhangi Gupta v. Commissioner Of Customs & Ors.
Cae no.: W.P.(C) 10772/2024
The Delhi High Court recently came to the rescue of an OCI cardholder whose luxury watch was confiscated by the Customs Department when she landed at IGI Airport, without issuance of any show cause notice under Section 124 of the Customs Act, 1962.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma rejected the Department's contention that the woman had herself waived the notice. It observed, “The seized goods are required to be returned, if a notice under Section 124 of the Act is not issued within the period as prescribed…Concededly, there is no provision for waiver of the notice as prescribed under the statute.”
Case title: M/S Hcc Vccl Joint Venture v. Union of India
Case no.: W.P.(C) 10940/2023
The Delhi High Court has held that refunds, be it from the balance left in Electronic Cash or the Electronic Credit Ledger, are treated at par and the Commissioner under the Central Goods and Services Tax Act may withhold both in exercise of its powers under Section 108.
Section 108 empowers the revisional authority to place in abeyance “any order” made under the CGST Act, which in its opinion could be said to be illegal, improper or prejudicial to the interest of the Revenue.
Case title: Rakesh Kumar Saini v. The Power Finance Corporation Ltd
Case no.: W.P.(C) 12196/2024
The Delhi High Court has made it clear that an investor of 'Capital Gain Tax Exemption Bonds' cannot seek premature withdrawal through judicial intervention. A single bench of Justice Sanjeev Narula ruled that such an act would defeat the legislative intent behind Section 54EC of Income Tax Act, 1961.
The provision stipulates that long-term capital gain will not be charged on an assessee if he invests in certain specified bonds (which come with a lock-in period).
Case title: M/S Akash Garments India Pvt Ltd v. Union Of India & Anr.
Case no.: W.P.(C) 5892/2024
The Delhi High Court has reiterated that the GST Department must record reasons that weigh on it to propose retrospective cancellation of an assessee's registration.
Citing absence of such reasons in the case at hand, the division bench of Justices Yashwant Varma and Dharmesh Sharma said cancellation of Petitioner's GST registration would stand only from the date of issuance of the Show Cause Notice.
Case title: Himanshu Garg v. Assistant Commissioner Of Income Tax, Circle-36 (1)
Case no.: ITA 548/2024
The Delhi High Court has refused to interfere with an ITAT order declining capital gain exemption under Section 54F of the Income Tax Act, 1961 with respect to a property described as “makaan” (house) in the registered sale deed but in actuality having a brick kiln construction.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma said, “The AO had, on inspection, found that there was brick-kiln on the property in question. Photographs of the same were placed on record and have been reproduced by the learned ITAT in the impugned order.”
Case title: Vivo Mobile India Private Limited v. Customs Authority For Advance Rulings & Anr
Case no.: CUSAA 24/2024
The Delhi High Court has held that it is not the technology which is used in the product that decides its HSN classification under the Customs Tariff Heading (CTH) for the purposes of Customs Tariff Act, 1975.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma held that it is rather the product, which may be created using a particular technology, which decides the HSN classification.
Case title: Shri Pawan Kumar Jaggi v. ACIT Central Circle-25 New Delhi
Case no.: ITA 2/2023
The Delhi High Court has made it clear that it cannot fault the estimation of an Assessing Officer regarding the quantum of deposits made by an assessee in an undisclosed foreign bank, when the latter himself fails to produce the account statement.
“Counsel for the Assessee also concedes that in the absence of the Assessee producing the relevant material, the AO was well within his right to make an estimate bearing in mind the income profile of the Assessee. We find it difficult to accept that any interference with the estimation of the deposit made in the bank account, are called for in the absence of Assessee producing his own bank account statement,” a division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma held in the 'peculiar' facts of the case.
Case title: Sandeep Hooda v. Pr. Commissioner Of Income Tax-7, Delhi & Anr.
Case no.: ITA 450/2024
Putting together a structure of plywood sheets cannot be construed as constructing a residential house,” the Delhi High Court has held.
It thus upheld an ITAT order which disallowed capital gains exemption to the appellant-assessee under Section 54 of the Income Tax Act, 1961 on the ground that a mere 'makeshift' structure was raised in the name of residential house.
Case title: Sequential Technology International India Pvt. Ltd.(Formerly Known As Omniglob Information Technologies(India)Pvt.Ltd) v. Addl. CIT, Spcl.Range-7,
Case no.: ITA 34/2020
The Delhi High Court recently directed a Transfer Pricing Officer (TPO) to determine afresh the inclusion of a comparable entity with respect to an assessee, this time taking into consideration the latter's objections on 'functional dissimilarity' of the two.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma ruled, “Assessee's contention that E4e Healthcare is functionally dissimilar to the assessee and therefore, could not be included as a comparable, has not been considered by any authority…Accordingly, the matter is restored before the learned TPO, to the limited extent, to examine the inclusion of E4e Healthcare as a comparable entity.”
Case title: Pr. Commissioner Of Income Tax -7, Delhi v. Naveen Kumar Gupta
Case no.: ITA 401/2022
The Delhi High Court has held that Section 153C of the Income Tax Act, 1961 does not by itself preclude an Assessing Officer from reopening assessments under Section 147/148 of the Act, on the basis of information found during a search conducted under Section 132 or requisition made under Section 132A of Act in respect of another person.
However, it clarified that the jurisdiction under Section 147 will stand barred when the AO decides to proceed under Section 153C. It reasoned that the Act does not contemplate parallel assessment proceedings.
Case title: The Pr. Commissioner Of Income Tax-6 v. Nucleus Steel Pvt. Ltd.
Case no.: ITA 978/2018
The Delhi High Court has made it clear that once an assessee offers explanation about nature and source of a credit transaction standing in its books, the burden of proof to show that such explanation is unsatisfactory shifts on the Assessing Officer.
A division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma further held that in evaluating the transaction so explained by the assessee, the AO cannot examine the commercial viability of such transaction.
Case Title: Experion Hospitality Pvt. Ltd. v. Income Tax Officer & Ors.
Case Number: W.P.(C) 10542/2015
The Delhi High Court stated that once nature and source of receipts have been satisfactorily proved and AO has not contradicted information given by assessee, there lies no cause for initiating the reassessment action.
The Division Bench of Justices Yashwant Varma and Ravinder Dudeja observed that “…Once the nature and source of receipts have been satisfactorily explained/proved and AO has not contradicted the explanation/information given by the assessee, there lies no cause for initiating the reassessment action for the impugned AYs 2008-09 & 2011-12.”
Case title: Pr. Commissioner Of Income Tax Delhi -11 v. Sangeeta Jain
Case no.: ITA 1092/2018
The Delhi High Court has held that sale deed is not a document issued by the revenue authorities or any government authority which would certify the agricultural nature of a land. “A sale deed primarily reflects the transaction between the parties and the terms of sale, but it does not, in itself, verify the land's classification as agricultural for the taxation purposes. Therefore, heavy reliance on the sale deed to establish the agricultural character of the land would be misplaced,” a division bench of Justices Vibhu Bakhru and Swarana Kanta Sharma held.
Case title: Pr. Commissioner Of Income Tax – 04 v. M/S Gragerious Projects Pvt. Ltd.
Case no.: ITA 90/2020
The Delhi High Court has made it clear that when the Revenue proposes to impose penalty on an assessee under Section 271(1)(c) of the Income Tax Act, 1961 for alleged 'concealment of particulars of income' or for 'furnishing inaccurate particulars of income'- it must specify which one of the two charges it seeks to press and the Revenue cannot be permitted to club both.
A division bench of Justices Yashwant Varma and Ravinder Dudeja reasoned that the proceedings for initiating penalty are penal in nature, which may result in imposition of penalty ranging from 100 to 300% of the taxability and therefore, the chargemust be “unequivocal and unambiguous”.
Case title: Designco v. UoI (and other connected matters)
Case no.: W.P.(C) 14477/2022
The Delhi High Court has held that a misclassification or an incorrect classification of goods to be imported or exported would not ipso facto amount to collusion, wilful misstatement, or suppression of facts under Section 28AAA Customs Act, 1962.
In its 91-page judgment, the Court also pointed out that the MEIS certificate is issued under the provisions of the Foreign Trade (Development and Regulation) Act, 1992 and held that the power to cancel or suspend it vests in the Director General of the licensing authority alone.
Case title: NRA Iron And Steel Pvt Ltd v. Income Tax Department & Ors.
Case no.: W.P.(C) 3537/2021
The Delhi High Court has held that a review petition, against the orders passed in SLP by the Supreme Court, is “Disputed Tax” under Section 2(1)(j) of the Direct Tax Vivad Se Vishwas Act, 2020 and the review petitioner would be eligible to take benefit of “Vivad Se Vishwas Scheme”.
Section 2(1)(j) defines disputed tax in relation to Appeal, Writ Petition or Special Leave Petition pending as on the specified date, in this case January 31, 2020.
Case title: Designco v. UoI (and other connected matters)
Case no.: W.P.(C) 14477/2022
The Delhi High Court has held that pursuant to an audit in respect of assessment of imported or exported goods under Section 99A of the Cutoms Act, 1962, the proper officer is liable to apprise the auditee of the objections which according to it arise in respect of the assessment.
A division bench of Justices Yashwant Varma and Ravinder Dudeja discussed the power that stands enshrined in Section 99A (Audit) and stands further articulated in the Audit Regulations, particularly Regulation 5.
Case title: Niraj Silk Mills v. Commissioner Of Customs (ICD) (and other connected matters)
Case no.: CUSAA 26/2022
The Delhi High Court has held that where enhancement of valuation of goods by the proper officer for the purpose of determining Customs duty is accepted by the importer under protest, for expeditious clearance, it cannot be said that the importer has waived its right to question the reassessment. Pertinent to note that Section 17 of the Customs Act, 1962 relates to 'Assessment of duty'. Sub-section (5) provides that in a case where the importer confirms his acceptance of the reassessment in writing, the proper officer would stand relieved of the obligation of passing a speaking order in respect of such reassessment. In all other cases where the reassessment is not acceded to, the proper officer is obliged to pass a speaking order.
Gauhati HC
Case title: M/s Surya Construction v. Union of India and others
Case No.: WP(C)/6469/2021
The Gauhati High Court has made it clear that interest on refund under Section 244A of the Income Tax Act, 1961 applies only to those cases where refund is delayed by the Income Tax Department.
Justice Devashis Baruah thus declined interest to a construction contractor, whose TDS was deposited in the wrong PAN number by the Defence Ministry's Border Roads Organisation.
Case title: M/S Chayanika Handloom Products And Anr v. State Of Assam And 12 Ors
Case No.: WP(C)/4258/2024
The Gauhati High Court has held that the words “Turnover” and “Income Tax Return” are different and exemption to a bidder from submitting the former in a tender process would not exempt it from furnishing the ITR, for the prescribed years.
“The primary purpose of reporting Annual Turnover is to provide a clear picture of a company's revenue-generating capacity. It is often a critical criterion for assessing a bidder's financial strength in tender applications. An Income Tax Return serves to comply with tax obligations and inform the government about the taxpayer's financial status, ensuring accurate taxation based on total income,” Justice Michael Zothankhuma held.
Gujarat HC
Case Title: Venus Macro Prints Pvt. Ltd. v/s State of Gujarat
Case no.: R/SPECIAL CIVIL APPLICATION NO. 14547 of 2024
Quashing an order of the tax authority which rejected a GST Appeal due to non-submission of a certified copy, the Gujarat High Court said that when an appealed order is available on a common portal and can be directly accessed by the Appellate Authority, there should be no need to submit a “certified copy” to confirm its authenticity.
The court further underscored that in today's age insistence on certified copy of orders which can be obtained directly from the website of judicial and quasi-judicial bodies is "regressive in nature and puts a premium on needless archaism".
Himachal Pradesh HC
Case title: M/s Lakhwinder Singh Stone Crusher v. Union of India & ors.
Case no.: CWP No. 8637/2023
The Himachal Pradesh High Court has dismissed a writ petition challenging notifications issued by the Central government for levy of GST on Royalty paid by a Mineral Concession Holder for mining concession granted by the State.
A division bench of Acting Chief Justice Tarlok Singh Chauhan and Justice Satyen Vaidya observed that a nine-Judge Bench of the Supreme Court in Mineral Area Development Authority & anr. vs. M/s Steel Authority of India & anr. (2024) said there is no specific provision in the Mines and Minerals (Development and Regulation) Act 1957 imposing limitations on the taxing powers of the State. Royalty under Section 9 of the MMDR Act is not in the nature of a tax. Section 9 MMDR Act does not impose any limitation on the power of States to tax minerals. The limitations imposed by Section 9 on royalties do not amount to limitations on the State's powers.
Case title: General Manager, Punjab Roadways Pathankot v. Excise & Taxation Commissioner-cum-Revisional Authority and ors.
Case no.: CWP No. 9777 of 2014
The Himachal Pradesh High Court recently directed the Punjab Roadways to clear the interest due upon it for delayed payment of passenger tax and surcharge to the HP government.
A division bench of Acting Chief Justice Tarlok Singh Chauhan and Justice Satyen Vaidya observed that the body first failed to deposit any tax with the authorities of Himachal Pradesh despite the fact that it had been running its buses within its territory, and then disputed liability of interest.
Kerala HC
Case Title: Manjoo and Company v. The Assistant Commissioner of Income Tax Central Circle
Case Number: I.T.A.NO.40 OF 2020
The Division Bench of Kerala High Court comprising Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “the concern of the Assessing Authority, while passing a consequential order, has to be limited to those specific issues that have been remanded to it for consideration by the Commissioner…”
Section 263 of the Income Tax Act, 1961 empowers the Commissioner of Income Tax to revise any order passed under the Income-tax Act, 1961, which is erroneous insofar as it is prejudicial to the interest of the revenue.
Case Title: Kings Infra Ventures Ltd. v. The Assistant Commissioner of Income Tax
Case Number: ITA NO. 28 OF 2023
The Kerala High Court stated that while determining the assessment of relevant years assessing authority cannot determine the assessment for earlier years without enquiry.
The Division Bench of Justices A.K. Jayasankaran Nambiar and Syam Kumar V.M. observed that “…….we fail to understand how the assessing authority, as well as the First Appellate Authority, while considering assessment proceedings for the assessment years 2011-12 could have embarked upon an enquiry with regard to the nature and extent of business that was carried on by the assessee during the assessment years from 1999- 2000 to 2009-10…”
Case Title: M/s Knowell Realtors India Pvt. Ltd. v. Assistant Commissioner of Income Tax
Case Number: I.T.A.NO.38 OF 2023
The Kerala High Court has stated that income from the sale of immovable properties is to be treated as 'capital gains,' not 'business income' for taxation purposes.
The Division Bench of Justices A.K. Jayasankaran Nambiar and K.V. Jayakumar observed that “the requirement of ensuring uniformity and consistency in tax assessments cannot be overlooked, especially while categorizing the nature of the activity carried on by an assessee to earn its income for the purposes of taxation.”
Case Title: Baiju George v. Commissioner Of Goods And Service Taxes Department
Case Number: WP(C) NO. 33866 OF 2024
The Kerala High Court stated that the medical condition cited by the assessee is not sufficient grounds to justify condoning a four-year delay in filing the appeal.
The Bench of Justice Gopinath P. observed that “the assessee has not made out any ground for grant of relief in the writ petition. Admittedly, the assessee filed appeals against the orders only in the month of February 2024 i.e., four years after the date on which the orders against which the appeal was sought to be filed had been issued.”
Case Title: The Assistant Commissioner Of State Tax v. Bhima Jewellery And Diamonds P. Ltd.
Case Number: WA NO. 1652 OF 2020
The Kerala High Court stated that the department cannot reopen an assessment that has already been settled by issuing a fresh notice if the period of limitation had expired before the date of the amendment extending the timeline for reopening.
The Division Bench of Justices A.K. Jayasankaran Nambiar and K.V. Jayakumar observed that “…….no doubt, in those cases where the erstwhile period of limitation of five years had already expired before the date of the amendment of Section 25(1) in 2017, the Revenue would not be permitted to re-open assessments that had been settled, through a fresh notice issued thereafter invoking the six-year period of limitation.”
Case Title: Kerala Infrastructure and Technology For Education v. Union Of India
Case Number: WP(C) NO. 12864 OF 2024
The Kerala High Court stated that financial grants provided to the assessee for covering daily operational expenses do not qualify as payment (consideration) for any services that the assessee might be providing and are not liable to tax.
The Bench of Justice Gopinath P. observed that “The assessee has only received grants to meet its day-to-day expenses including salary, allowances etc. Such payment cannot be deemed to be a consideration for the alleged services rendered or for goods supplied by the assessee. The revenue has no case that the activity of the assessee falls within Scheduled-I”.
Case : Pinnacle Vehicles and Services Pvt Ltd v. Joint Commissioner
Case no.: WP(C) NO. 25724 OF 2024
A single bench of the Kerala High Court has referred to the division bench the issue relating to the cross-empowerment of State officials under Section 6(1) of the Goods and Services Act.
Justice P Gopinath passed the reference order in a writ petition filed by a company challenging a show-cause notice issued by the State authorities.
Orissa HC
Case title: Alok Kumar Mohapatra v. Income Tax Officer, Khurda and others
Case no.: WP(C) No.4470 of 2023
The Orissa High Court has made it clear that an entry in the dispatch register maintained by the Revenue is not primary evidence to show service of notice on an assessee.
Petitioner claimed the said intimation of adjustment of refund never saw the light of the day. The Revenue on the other hand submitted that intimation was sent to the Petitioner and the system clearly says date of service to have been on 5th April, 2012.
Division bench of Justices Arindam Sinha and MS Sahoo observed, “Entry made in the system is not primary evidence. It has to be based on something to show that the assessment order denying the exemption claim was informed to petitioner.”
Madhya Pradesh HC
Case title: Rakesh Agrawal v. Central Board Of Direct Taxes And Others
Case no.: WRIT PETITION No. 16139 of 2024
The Madhya Pradesh High Court has held that an order passed under Section 148A(d) of the Income Tax Act 1961 is not an appealable order, therefore, the only remedy with an aggrieved party is to invoke writ jurisdiction of the High Court.
Proceedings under Section 148A are initiated when Income Tax officers suspect that a taxpayer may have concealed income during any assessment year. Section 148(1)(b) contemplates issue of show cause to provide an opportunity of hearing to the assessee. Sub-section (1)(d) empowers the Assessing Officer to decide whether reassessment notice under section 148 should be issued to the assessee.
Hence, an order passed under Section 148(1)(d) is not final determination of escapement of income.
Case Title: Principal Commissioner v. Ramesh Chandra Rai
Case Number: INCOME TAX APPEAL No. 272 of 2022
The Madhya Pradesh High Court ruled that if an assessee has already included income from an Association of Persons (AOP) or Body of Individuals (BOI) in their taxable income, any post-tax share received from the AOP/BOI cannot be taxed again in the assessee's hands.
The Division Bench of Justices Sushrut Arvind Dharmadhikari and Anuradha Shukla observed that “……the assessee was a member of an association of persons or body individuals, share of members of such association of persons or body individuals were chargeable to tax on their total at the maximum marginal rate or any higher rate…”
Madras HC
Case Title: The Commissioner of Income Tax, Chennai v. M/s. Johnson Lifts Pvt. Ltd.
Case Number: T.C.A.No.54 of 2015
The Madras High Court ruled that any amount received in advance for services should be treated as the income of the assessee and is, therefore, subject to income tax.
The Division Bench of Justices R. Suresh Kumar and C. Saravanan observed that “if “Accounting Standards” are properly applied by an assessee, the “accounting income” for the payment of income tax will be available. However, if an assessee fails to adopt “Accounting Standards” properly for computation of income, the discretion is vested with the Assessing Officer under Section 145(3) of the Income Tax Act, 1961.”
Case Title: The Triplicane Permanent Fund Ltd. v. The Tamil Nadu Sales Tax Appellate Tribunal
Case Number: W.P.Nos.11208
The Madras High Court stated that assessee is liable to tax on consideration received from sale of unredeemed articles by auctioneers.
The Division Bench of Justices Anita Sumanth and G. Arul Murugan observed that “the levy of penalty under Section 12(3)(a), in the case of non-filing of returns, is, automatic. Admittedly, the assessee has not filed the returns and hence, the basis of assessment would be irrelevant.”
Case Title: Nalin Gupta v. Commissioner of Customs
Case Number: W.A.No.2542 of 2024
The Madras High Court stated that a request for cross-examination of a witness in a Show Cause proceeding cannot be allowed if no reply on merits has been provided by the noticee.
The Division Bench of Justices R. Suresh Kumar and C. Saravanan observed that “………the question of entertaining an application for cross-examination of the witnesses without any reply on merits by a notice in a show cause proceeding is to be eschewed and should not to be allowed.”
Case Title: Lakshana Cotton Spinning Mills Limited v. The Commercial Tax Officer
Case Number: W.P.Nos.33613
The Madras High Court ruled that recovery actions against the directors of a company cannot be initiated if the status of the assessee is non-existent.
The Division Bench of Justices Anita Sumanth and G. Arul Murugan observed that “while in the case of amalgamation, it is only the apparent and outer shell of the company which is destroyed…. However, in the case of dissolution, the entity wholly ceases to exist.”
Case Title: EIH Associated Hotels Ltd vs. CIT
Case Number: T.C.A.No.1249 of 2010
The Madras High Court recently ruled that the expenditure incurred for payment of foreclosure premium for restructuring loan and obtaining fresh loan at a lower rate of interest is allowable as business expenditure u/s 37(1) of the Income Tax Act.
Such ruling came while dealing with a case where scrutiny proceedings were initiated, leading in revisional assessment u/s 263, based on the assumption that assessment order was prejudicial to the interest of Revenue Department, and resultant disallowance of payment of foreclosure premium as a business expenditure.
Case Title: M/s. SPK and Co. v. The State Tax Officer
Case Number: W.P.(MD)Nos.27787
The Madras High Court stated that limitation period for challenging assessment orders under section 107 of GST Act commences from the date of rejection of the rectification application filed under section 161.
The Bench of Justice K. Kumaresh Babu observed that “…the period of limitation for challenging the order of assessment shall start ticking from the date of rejection of the rectification application…”
Patna HC
Case Title: M/s Barhonia Engicon Private Limited v. The State of Bihar
Case Number: Civil Writ Jurisdiction Case No.4180 of 2024
The Patna High Court has rejected a petition challenging Notifications extending timeline for issuance of Orders under Section 73(10) of the GST Act.
The Division Bench, comprising Chief Justice K. Vinod Chandran and Justice Partha Sarthy was dealing with the case where the assessees/petitioners filed writ petition against Notification Nos. 13/2022-Central Tax, 9/2023-Central Tax & 56/2023-Central Tax which extended the dates for issuing orders under Section 73(10) of the GST Act.
Rajasthan HC
Case Title: M/s Sunshine Exim v. Directorate General Of GST Intelligence Jaipur Zonal Unit
Case Number: D. B. Civil Writ Petition No. 16379/2024
The Rajasthan High Court stated that the provisional attachment under Section 83 of the CGST Act ceases after one year and cannot be attached again without giving fresh reasons. The Division Bench, consisting of Chief Justice Manindra Mohan Shrivastava and Justice Ashutosh Kumar, was dealing with a case in which the assessee challenged the department's attachment of their bank account on the grounds that, according to Section 83(2) of the CGST Act, the provisional attachment of a bank account ceases to have effect after one year.
Telangana HC
Case title: Srinivasa Resorts Limited vs The Commissioner Of Income Tax, A.P.
Case no.: INCOME TAX TRIBUNAL APPEAL NO.87 OF 2008
The Telangana High Court has held that the expenditure incurred by a hotel on replacement of damaged items is a current expenditure, allowable under Section 37 of the Income Tax Act, 1961.
Section 37 of Income Tax Act states that any business expenditure, excluding capital expenditure and the individual's personal expenses, that is spent for the business's operations shall be applicable for deduction from business income.
A division bench of Justices Sujoy Paul and Namavarapu Rajeshwar Rao was dealing with a Hyderabad based 5-Star Hotel's plea to decide whether the expenditure incurred by it comes under current expenditure or capital in nature.
Case title: Babulal Jain vs The Income Tax Officer
Case no.: ITTA No. 319 of 2007
The Telangana High Court has held that for purposes of taxation, “accumulated profits” of a company are to be calculated after adjusting depreciation as per the Income Tax Act, 1961.
In ruling so, a division bench of Chief Justice Alok Aradhe and Justice J. Sreenivas Rao cited two rulings of the Bombay High Court which held that “depreciation as granted in accordance with the rates prescribed by the Income-tax Act would have to be deducted for ascertaining the accumulated profits.”
Case title: The Commissioner Of Income Tax-III Hyderabad v. M/s. Satiofi Healthcare India Private Limited
Case no.: INCOME TAX TRIBUNAL APPEAL No.138 of 2007
The Telangana High Court has held that the amount received by the developer of Hepatitis-B vaccine, under a co-marketing agreement with PFIZER Company, is a capital receipt not liable to tax.
A division bench of Chief Justice Alok Aradhe and Justice J. Sreenivas Rao reasoned that the developer-assessee's right to promote, market, distribute or sell the vaccine or a new competitive product to a third party was taken away under the agreement.
TRIBUNAL
Case title: M/s. Ashutosh Upadhyay v. Commissioner, CGST
Case Number: SERVICE TAX APPEAL NO. 50325 OF 2019
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has stated that even if service tax is paid under reverse charge mechanism by service recipient, it is the service recipient who can take credit of tax so paid and not service provider.
The Bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that “…so long as the service tax is paid on a taxable service and such taxable service is an input service, the service recipient can take credit. There is no provision for the service provider to take credit of the service tax paid on its output service…”
Case Title: M/s. Rajasthan Co-Operative Dairy Federation Limited v. Commissioner of Central GST, Jaipur
Case Number: SERVICE TAX APPEAL No. 52954 OF 2018
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has stated that once the consideration (service fee) is refunded by the Assessee to the service recipient, the transaction between the two parties no longer qualified as a 'service' and no service tax would be leviable thereupon.
The Bench of Dr. Rachna Gupta (Judicial Member) and Hemambika R. Priya (Technical Member) has observed that “…the waiver of service fee must be understood as the re-negotiation of the invoice value, which has been reduced from a fixed amount to NIL…”
Assessee Is Not Responsible For Disclosing Individual Transactions In ST-3 Returns: CESTAT
Case Title: Commissioner of Central Goods & Service Tax, Delhi South Commissionerate v. M/s Haamid Real Estate Pvt. Ltd.
Case Number: SERVICE TAX APPEAL NO. 52273 OF 2018
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has stated that ST-3 Return does not require transaction wise details. There is neither any responsibility on the assessee nor any scope to disclose individual transactions in the ST-3 returns.
The Bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that “it is the responsibility of the Central Excise Officer with whom the Returns are filed to scrutinise them and if necessary, make the best judgment assessment under section 72 of the Finance Act and issue an SCN under Section 73 of the Finance Act within the time limit. If the officer does not do so, and any tax escapes assessment, the responsibility for it rests on the officer.”
Case Title: M/s Tripti Alcobrew Pvt. Ltd. v. Commissioner of Central Excise & CGST
Case Number: SERVICE TAX APPEAL NO. 52898 OF 2018
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has stated that the transfer of a license constitutes a “deemed sale” under article 366(29A)(d) of the Constitution and, therefore, any consideration received from it cannot be subjected to service tax.
The Bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that “…..The consideration received by the assessee on the execution of the License Agreement cannot, therefore, be subjected to service tax nor can such consideration be clubbed with the consideration received by the assessee under the Lease Deed so as to be subjected to service tax under “renting of immovable property” service.”
Case Title: M/s Ambuja Cements Limited v. Commissioner (Appeals), Central Goods & Service Tax, Central Excise
Case Number: EXCISE APPEAL NO. 51427 OF 2022
The New Delhi Bench of Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has stated that the assessee is entitled to CENVAT credit of the service tax paid on the goods transport agency (GTA) services received by the assessee to transport the goods from its factory to the buyer's premises sold on FOR (free on road) destination basis.
The Bench of Justice Dilip Gupta (President) and P.V. Subba Rao (Technical Member) has observed that ““place of removal” shifts to the buyer's premises and the assessee is entitled to CENVAT credit of the service tax paid on GTA services availed to transport the goods to the buyer's premises.”
