Top Stories Tax Judgement of HC Annual Case Digest 2023 [Part 2] By Yogitha S. Yogesh – On January 4, 2024 2:33 pm – 35 mins read This Annual Case Digest analytically summarizes the key stories related to Tax judgements of various High Courts in India reported in Taxscan.in during the year 2023. These stories include judgements and observations of High Courts related to Income Tax, Goods and Service Tax(GST), Excise Duty, Service Tax, Customs Duty, etc. Bombay HC directs to Refund Amount Attached from Assessee in Absence of Proven Offence u/s 9(1) (b ) of FERA Act Shri Abdul Aziz Ahmed Ansari vs Union of India 2023 TAXSCAN (HC) 1180 The Bombay High Court directed to refund the amount attached from the assessee in the absence of proven offence under section 9(1) (b ) of the Foreign Exchange Regulation Act, 1973 (FERA). While allowing the appeal, the division bench comprising G S Kulkarni & Rajesh S Patil ordered that “ an amount of Rs.1,48,000/- shall be refunded by the respondent
to the petitioner within a period of four weeks from today with simple interest at the rate of 6% per annum from 12 May 1988.” Delhi HC Quashes Re-Assessment Order Mailed Without Mentioning Issuing Officers Name and Designation JINDAL EXPORTS AND IMPORTS PRIVATE LIMITED vs DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2023 TAXSCAN (HC) 1178 The Delhi High Court quashed the re-assessment order mailed without mentioning issuing officer’s name and designation. A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia set aside the notices under Section 148A(b) of the Act and orders under Section 148A(d) of the Act. Further allowed the appeal by granting liberty to the respondent/revenue to take further steps following the law. Value Fixed by Stamp Valuation Authority to be taken as Full Value of Consideration Calculating Capital Gains: Delhi HC Condemns Act of PCIT in Rubber Stamping Attempt of AO to Reopen Assessment SH.MANUJENDRA SHAH vs COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1181 The Delhi High Court condemned act of Principal Commissioner of Income Tax (PCIT) in rubber stamping attempt of the Assessing Officer (AO) to reopen assessment and observed that the value fixed by the stamp valuation authority, which is the circle rate, should be taken as the full value of the consideration while calculating capital gains. The Court concluded by noting that the PCIT i.e., the authority granting approval for reopening the reassessment proceedings, did not do better. PCIT, in fact, rubber-stamped the attempt of the AO to reopen the assessment. Paypal being the Payment System Operator shall comply with PMLA Requirements: Delhi HC PAYPAL PAYMENTS PRIVATE LIMITED vs FINANCIAL INTELLIGENCE UNIT INDIA & ANR 023 TAXSCAN (HC) 1186 In a significant case, the Delhi High Court held that Paypal being a payment system operator shall comply with
the Prevention of Money Laundering Act 2002 (PMLA) requirements. While allowing the petition the Court held that “PayPal is liable to be viewed as a payment system operator and consequently obliged to comply with reporting entity obligations as placed under the PMLA. The imposition of penalty in terms of the impugned order dated 17 December 2020 is, however, and for reasons aforenoted, quashed. The impugned order shall stand set aside to the aforesaid extent.” Exemption claim u/s 2(15) of Income Tax Act not allowable on Services provided by GS1 India as it was for Benefit of Trade and Business: Delhi HC COMMISSIONER OF INCOME TAX vs GS1 INDIA (FORMERLY EAN INDIA) 2023 TAXSCAN (HC) 1185 The Delhi High Court has held that an exemption claim under section 2(15) of the Income Tax Act is not allowable on services provided by GS1 India as it was for the
benefit of trade and business. A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia has set aside the impugned order passed by the Tribunal, in light of the observation of the Supreme Court in Ahmedabad Urban Development Authority. Charges u/s 24 of PMLA Act on Fraudulent Obtain of Money cannot Exonerate Before a Full-Fledged Trial: Calcutta HC Mili Ghosh vs Union of India & anr 2023 TAXSCAN (HC) 1187 The Calcutta High Court has held that charges under section 24 of the Prevention of Money Laundering Act (PMLA ), 2002 on fraudulent obtaining of money cannot exonerate before a full-fledged trial. As prima facie case is made out against the present petitioner in the facts and circumstances of the present case, she cannot be exonerated from the charges at this stage and before a full-fledged trial commences.”, the court held. No SCN issued Prior to upward Revision of Income: Delhi HC quashes Assessment Order u/s 147 of Income Tax Act S.B. DISTRIBUTORS vs INCOME TAX OFFICER 2023 TAXSCAN (HC) 1182 The Delhi High Court quashed assessment order issued under Section 147 of the Income Tax Act, 1961 as no Show Cause Notice (SCN) was issued prior to upward revision of income. For this purpose, the AO will issue a notice to the petitioner, whereby the date and time of the hearing will be indicated. Needless to say that the AO will pass a speaking assessment order, which would deal with the contentions embedded in the reply, if any, filed by the petitioner” the Bench concluded. Interest Allowable on Delayed Refunds from Central Excise Department on Deposit Made under Protest: Meghalaya HC The Principal Commissioner of Central Goods and Service Tax vs M/s Green Valliey Industries Pvt Ltd 2023 TAXSCAN (HC) 1189 The Meghalaya High Court has held that interest shall be allowable to the assessee o
n the delayed refunds from the Central Excise Department on the deposit made “under protest”. In result, the High Court of Meghalaya dismissed the Department’s appeal and upheld the decision of CESTAT, directing the Central Excise Department to pay interest to assessee on the delayed refund of the deposit made by the assessee “under Protest”. Non-violent Nature of Offence under PMLA: Punjab and Haryana HC Grants Bail to Rajiv Rattan Dhingra Arrested in Nature Heights Infra Scam Rajiv Rattan Dhingra vs Enforcement Directorate, Jalandhar Zonal Office 2023 TAXSCAN (HC) 1196 The Punjab and Haryana High Court granted bail to Rajiv Rattan Dhingra arrested in Nature Heights Infra Scam taking into consideration the non-violent nature of offence under the Prevention of Money Laundering Act, 2002 (PMLA). That apart, the alleged crime purportedly committed by the petitioner is non-violent in nature. In case, he is released on bail, there is no likely threat to the society. Since challan has been filed and trial has commenced, petitioner is not required for any custodial interrogation” the Court said. PMLA Offence: Punjab and Haryana HC grants Bail to MLA Kushaldeep Singh Dhillon in Disproportionate Assets Charge Kushaldeep Singh Dhillon vs State of Punjab 2023 TAXSCAN (HC) 1249 The Punjab and Haryana High Court granted bail to Member of Legislative Assembly (MLA) Kushaldeep Singh Dhillon, the petitioner in the disproportionate assets charge in the Prevention of Money Laundering Act,2002 (PMLA) offence. “Keeping in view the above said facts and circumstances, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail / surety bonds to the satisfaction of the concerned trial Court/ Duty Magistrate and subject to him not being required in any other case and subject to the condition that the petitioner would surrender his passport before the trial Court” the Court concluded. Transportation of Iron Ores without Payment of Royalty and Forest Development Tax: Karnataka HC dismisses Writ Petition by Former IFS Officer SRI S. MUTHAIAH vs STATE BY CBI/ACB 2023 TAXSCAN (HC) 1247 The Karnataka High Court dismissed writ petition by a former Indian Forest Service (IFS) Officer in the alleged offence of transportation of iron ores without the payment of required royalty and Forest Development Tax. “In the present case, it must also be kept in mind that any finding regarding mining operations in a forest area or in non-forest area would have implication as regards other criminal cases also pending and accordingly, it may not be appropriate to jeopardize the cases against other accused by recording a finding as against the petitioner alone. Accordingly, this Court does not find any scope for interference and the Writ Petitions are dismissed” the Court concluded. Reopening Assessment u/s 147 of Income Tax Act Quoting Wrong PAN: Calcutta HC orders to Produce Relevant Records TRIBENI BARTERS PRIVATE LIMITED AND ANR vs INCOME TAX OFFICER 2023 TAXSCAN (HC) 1246 The Calcutta High Court ordered to produce relevant records as reopening of assessment under Section 147 of the Income Tax Act, 1961 was made after quoting wrong PAN number. A Single Judge Bench of Justice Md Nizamuddin observed that “Ms. Das De appearing for the respondent shall produce the relevant record particularly notice under Section 148A(b) of the Income Tax Act and order under Section 148A(d) of the Income Tax Act and all correspondences during the impugned proceeding. List this matter on 10th August, 2023 to enable Ms. Das De to produce the relevant records.” No Obligation on Bank to Deduct TDS from Interests on FD Paid to Jammu Development Authority:J & K and Ladakh HC Pr. Commissioner of Income Tax vs M/S The J&K Bank Ltd. 2023 TAXSCAN (HC) 1242 The Jammu and Kashmir and Ladakh High Court observed that there is no obligation on the bank to deduct Tax Deduction at Source (TDS) from interests on fixed deposit (FD) paid to Jammu Development Authority. “We further hold that the assessee was under no obligation to deduct TDS on interest payments made to the JDA on its fixed deposits in terms of Section 194A of the Income Tax Act. The JDA being a corporation established by the State Act. i.e the Development Act 1970 was, thus, outside the purview of sub-section (1) of Section 194A of the Income Tax Act” the Bench concluded. Calcutta HC quashes Assessment Notice u/s 154 of Income Tax Act issued against Dead Person GOUTAM SADHAN BOSE vs THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 46 AND ORS 2023 TAXSCAN (HC) 1244 The Calcutta High Court quashed an assessment notice under Section 154 of the Income Tax Act, 1961 issued against dead person. A Single Bench of Justice Md Nizamuddin observed that “Considering the facts and circumstances of the case as appears from record and submissions of the parties, this writ petition is disposed of by quashing the aforesaid impugned notice under Section 154 of the Income Tax Act. However, quashing of the notice will not be a bar on the part of the respondent Income Tax Authority concerned to issue any fresh notice in future in accordance with law.” Time Limit on ITC Claim u/s 16(4) of CGST Act Deemed Constitutional, Articles 14, 19(1)(g) and 300A Remain Intact: Andhra Pradesh HC Thirumalakonda Plywoods vs The Assistant Commissioner 2023 TAXSCAN (HC) 1239 The High Court of Andhra Pradesh has held that the time limit imposed on the claim of Input Tax Credit (ITC) under Section 16(4) of the Central Goods and Services Tax (CGST) Act, 2017 is not in violation of constitutional provisions. In conclusion, the division bench comprising Justice U. Durga Prasad Rao and Justice T. Mallikarjuna Rao dismissed the writ petition and upheld the constitutionality of the time limit prescribed for claiming ITC under Section 16(4) of the CGST Act citing that the same is not violative of Articles 14, 19(1)(g) and 300-A of the Constitution of India. Sec 16(2) of CGST Act has No Overriding Effect on Sec 16(4): Both Declared Mutually Exclusive & Independent: Andhra Pradesh HC Thirumalakonda Plywoods vs The Assistant Commissioner 2023 TAXSCAN (HC) 1239 The High Court of Andhra Pradesh has held that Section 16(2) of the Central Goods and Services Tax (CGST) Act, 2017 does not possess an overriding effect on Section 16(4), as both sections are considered mutually exclusive and independent in their operation. In conclusion, the division bench comprising Justice U. Durga Prasad Rao and Justice T. Mallikarjuna Rao dismissed the writ petition emphasising the interpretation and application of Section 16(2) and Section 16(4) of the CGST Act and thus resolved the complexities surrounding these Sections. Acceptance of Belated Returns with Late Fee Not a Ground to Exonerate Assessee from Time Limit for ITC Claim u/s 16(4): Andhra Pradesh HC Thirumalakonda Plywoods vs The Assistant Commissioner 2023 TAXSCAN (HC) 1239 The Andhra Pradesh High Court has held that the acceptance of belated returns of the assessee by the department along with the late fee is not a valid ground to exonerate the assessee from the time limit for Input Tax Credit (ITC) claim under Section 16(4) of the Andhra Pradesh Goods and Services Tax (APGST) Act and Central Goods and Services Tax (CGST) Act, 2017. In conclusion, the division bench comprising Justice U. Durga Prasad Rao and Justice T. Mallikarjuna Rao dismissed the writ petition filed by Thirumalakonda Plywoods against the Assistant Commissioner of State Tax and others. Mandatory 10% Pre-deposit for Filing GST Appeal is not Possible if Bank Account is Freezed: AP HC Condones Delay of 25 days M/S. S A IRON AND METAL vs THE ASSISTANT COMMISSIONER 2023 TAXSCAN (HC) 1241 In a major decision the Andhra Pradesh High Court condoned a delay of 25 days and noted that the mandatory 10% pre-deposit for filing Goods and Service Tax (GST) appeal is not possible if the bank account is freezed. “We are not convinced with the reasons assigned by the learned Commissioner in rejecting the appeal. Since, it is within the condonable period of limitation as the cause for the delay is suffice to entertain the appeal. On appreciation of the language employed under Section 107 (4) of CGST Act and in the back drop the factual and legal background, we are of the view that the impugned order deserves to be set aside” the Court noted. TDS not Deductible on Commission Paid to Non-Resident Agent Overseas: Delhi HC PR. COMMISSIONER OF INCOME TAX vs MAHARANI ENTERPRISES 2023 TAXSCAN (HC) 1238 The Delhi High Court has held that Tax Deducted at Source (TDS) is not deductible on commission paid to non-resident agents overseas. The division bench comprising of Justice Vibhu Bakhru and Justice Amit Mahajan observed that “there is no material on record to even remotely suggest that the non-resident, who had been paid the export commission had any permanent establishment in India; had carried on any business within the taxable territory in India; or had any business connection in India rendering them liable to pay tax under the Act.” While dismissing the appeal of revenue, the Court held that there is also no allegation that the payments made were not bona fide expenses. Compounding Fee not Tax or Duty: Delhi HC directs Legal Metrology Department to Refund Compounding Fee paid by Oil Marketing Companies INDIAN OIL CORPORATION LTD vs DIRECTOR OF LEGAL METROLOGY & ORS 2023 TAXSCAN (HC) 1235 The Delhi High Court directed Legal Metrology Department to refund compounding fee paid by Oil Marketing Companies and noted that compounding fee is not Tax or Duty. The Bench concluded by noting that “In view of the aforesaid, we find merit in the challenge raised by the appellants and find ourselves unable to uphold the view taken by the Single Judge that the prayer for refund of compounding fee was liable to be refused.” No Justification for Further Pre-Trial Incarceration: Punjab and Haryana HC Grants Bail in 4.61 crores Revenue Fraud Case Birender Singh vs State of Haryana 2023 TAXSCAN (HC) 1234 The Punjab and Haryana High Court granted bail in 4.61 crores revenue fraud case as there is no justification for further pre-trial incarceration. The Court further noted that if the petitioners fail to comply with this condition, then on this ground alone, the bail might be cancelled, and the complainant may file any such application for the cancellation of bail, and State shall file the said application. Remedy for Proceedings Lies before DRT on Initiation of Proceedings u/s 13(4) of SARFAESI Act: HP HC M/s Dynamic Sales vs District Magistrate 2023 TAXSCAN (HC) 1236 In a recent decision the Himachal Pradesh High Court ruled that the remedy for proceedings lies before the Debt Recovery Tribunal (DRT) on initiation of proceedings under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act). A Division Bench comprising Justices Tarlok Singh Chauhan and Ranjan Sharma observed that “The instant petition is not maintainable and is accordingly dismissed leaving open to the petitioner-firm to avail remedy under Section 17 of the SARFAESI Act as and when Section 13(4) thereof is invoked by the respondent-Bank. However, it is made clear that we have not expressed any opinion on the merits of the case and all issues are left open to be urged before the competent authority. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.” Cancellation of GST Registration: Madras HC directs GST Department to De-Freeze Bank Account on Payment of First Instalment of Tax Portion M/S. N.S. RATHINAM AND SONS PVT LTD vs THE COMMISSIONER OF GST AND CENTRAL EXCISE 2023 TAXSCAN (HC) 1237 In a recent decision the Madras High Court directed the Goods and Service Tax (GST) Department to de-freeze bank account on payment of first instalment of tax portion in the matter of cancellation of GST registration. A Single Bench of Justice S Srimathy observed that “Therefore, the petitioner is directed to pay the entire tax portion in four equal instalments. As far as the interest portion is concerned, that will be considered after the payment of the tax liability.” The Court further directed to pay the first instalment within a period of one week from the date of receipt of a copy of this order. On such payment the respondents are directed to de-freeze the petitioner’s bank account. The respondents were also directed to file counter affidavit. AO refused to Consider Bank Statement and DMAT account of Assesee: Delhi HC Sets aside Reassessment Order STANDARD CHARTERED BANK UK vs ASSISTANT COMMISSIONER OF INCOME TAX & ORS. 2023 TAXSCAN (HC) 1227 In a recent case, the Delhi High Court has set aside the reassessment order since the Assessing Officer (AO) refused to consider the bank statement and D- MAT account of the assessee. While allowing the appeal, the division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia the AO passed a fresh order. However, before the AO proceeds to pass a fresh order, he will furnish the petitioner with the information/material that he has in his possession. AO can’t Withhold DVAT Refund Towards Demand Which are not Recoverable: Delhi HC directs to Refund Amount RAMKY INFRASTRUCTURE LIMITED vs COMMISSIONER OF TRADE & TAXES 2023 TAXSCAN (HC) 1226 The Delhi High Court directed the Assessing Officer (AO) to refund the amount Delhi Value Added Tax (DVAT) Act since it was not recoverable. A division bench comprising Justice Vibhu Bakhru and Justice Amit Mahajan directed the concerned authority to refund the remaining withheld amount of amount ₹10,43,918/- along with interest with effect from 01.06.2015 and recompute the interest for the amount of ₹44,14,979/- as refunded in terms of the order dated 01.02.2023 and refund the interest due after adjusting the amount of ₹7,983/- already disbursed. GST Refund Rejected based on Mismatch without Considering Reconciliation Statement: Delhi HC directs to Reconsider the Matter M/S SHIVBHOLA FILAMENTS PRIVATE LIMITED vs ASSISTANT COMMISSIONER CGST & ANR 2023 TAXSCAN (HC) 1225 In a recent case, the Delhi High Court directed the Goods and Service Authority to reconsider the matter since the GST refund was rejected based on a mismatch without considering the Reconciliation statement. A division bench comprising Justice Vibhu Bakhru and Justice Amit Mahajan set aside the impugned Order and restored the petitioner’s applications for a refund before the Adjudicating Authority for determining the amount of refund payable to the petitioner after affording the petitioner an opportunity to be heard. Execution of Subsisting Government Contracts Awarded in pre or post-GST Regime without updating SOR: Calcutta HC directs to File representation before the Additional Chief Secretary Sunshine Enterprise & Ors vs The State of West Bengal & Ors. 2023 TAXSCAN (HC) 1219 The Calcutta High Court was directed to file representation before the additional secretary since the execution of subsisting government contracts awarded in the pre or post-Goods and Service Tax (GST) regime without updating the Schedule of Rates(SOR). After considering the issue, the single-judge bench of Justice Md. Nizamuddin directed the petitioner to file an appropriate representation before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from the date. “The Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representation after consulting with all other relevant departments concerned.”, the bench added. Kerala HC quashes Cancellation of GST Registration on Absence of Reasonable Opportunity of Being Heard M/S.AJIT ASSOCIATES ARCHITECTURAL CONSULTANTS PVT. LTD vs ASSISTANT COMMISSIONER 2023 TAXSCAN (HC) 1231 The Kerala High Court in a recent decision quashed cancellation of Goods and Service Tax (GST) Registration on absence of reasonable opportunity of being heard. “The requirement that the succeeding Officer should put the assessee on notice is thus better emphasised by the usage of the words “proper Officer” in the proviso to Section 29(2) of the GST Act. The necessary implication is that the proper officer has to hear the concerned person before cancelling the registration, which would mean that the assessee is put on notice by the succeeding officer also” the Bench concluded. Non-Constitution of GSTAT: Orissa HC orders to Deposit Entire Tax Demand as Interim Measure M/s. Neelachal Udyog vs Joint Commissioner of State Tax (Appeal) 2023 TAXSCAN (HC) 1233 In a recent decision the Orissa High Court ordered to deposit entire tax demand as interim measure after considering the fact of the non-constitution of Goods and Service Tax Appellate Tribunal (GSTAT). A Division Bench of Justices BR Sarangi and MS Raman observed 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 four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition.” Delhi HC quashes Income Tax Notice issued on Mistaken Belief that Entire Property is in Ownership of Alleged Tax Defaulter MRS. MANSI GARG AND ORS vs COMMISSIONER OF INCOME TAX AND ORS 2023 TAXSCAN (HC) 1232 The Delhi High Court quashed income tax notice issued on mistaken belief that entire property is in ownership of alleged tax defaulter. A Division Bench of Justices Girish Kathpalia and Rajiv Shakdher observed that “The respondents opted not to resist this writ action. Learned counsel for respondents who appeared in the High Court submitted on the basis of instructions that in the subject property, it is only the basement which is owned by Romesh Sharma and that Romesh Sharma has no right, title or interest in rest of the floors of the said property. That being so, the impugned notice issued by respondent no. 2 cannot survive.” The Bench further noted that so far as the rejection order, impugned in the present writ petition is concerned, the petitioners have to initiate fresh steps. For, the impugned rejection order issued by respondent no. 3 was not premised on the notice issued by respondent no. 2. “In view of above discussion, the writ petition is disposed of, thereby quashing the impugned notice issued by respondent no. 2” the Bench concluded. Protracted Administrative Delay would Defeat Substantive Rights of Noticee: Bombay HC quashes Service Tax Notice issued after 10 years Coventry Estates Pvt. Ltd vs The Joint Commissioner CGST and Central Excise & Anr. 2023 TAXSCAN (HC) 1230 In a recent decision a division Bench of the Bombay High Court quashed a service tax notice issued after a span of 10 years. “In our opinion, the directions as made in such order are required to be read in the facts and circumstances of the case before the Court. It also cannot be said that any concrete proposition of law has been laid down in the said order to the effect that even if there exists a gross, unjustifiable and inordinate delay in adjudication of the show cause notice, the Revenue could nonetheless proceed to adjudicate the same” the Court said. Time Limit u/s 153 of Income Tax Act Prevails over Assessment Time Limit u/s 144C of Income Tax Act: Bombay HC Shelf Drilling Ron Tappmeyer Limited vs Assistant Commissioner of Income Tax 2023 TAXSCAN (HC) 1229 In a major decision the Bombay High Court observed that the time limit under Section 153 of the Income Tax Act, 1961 prevails over assessment time limit prescribed under Section 144C of the Income Tax Act, 1961. A Division Bench of Justices Firdosh P Pooniwalla and KR Shriram observed that “In our view, the assessment has to be concluded within twelve months as provided in Section 153(3) of the Income Tax Act when there has been remand to the AO by the ITAT under Section 254 of the Income Tax Act. Within this twelve-month prescribed, the AO has to ensure that the entire procedure prescribed under Section 144C of the Income Tax Act is completed and pass a final assessment order.” Gujarat HC Upholds Eligibility for Sabka Vishwas (Legacy Dispute Resolution) Scheme as Service Tax Liabilities Admitted & Paid Before Cut-Off Date M/S FTA HSRP SOLUTIONS PVT. LTD vs UNION OF INDIA 2023 TAXSCAN (HC) 1228 The High Court of Gujarat has upheld the eligibility of M/S. FTA HSRP Solutions Pvt. Ltd. to avail the benefits under the Sabka Vishwas (Legacy Dispute Resolution) Scheme (SVLDRS), 2009 as the service tax liabilities were already admitted and paid before the cut-off date of 15th January 2020, as required by the scheme. The division bench comprising Justice Biren Vaishnav and Justice Devan M. Desai ruled in favour of the assessee, quashing the two orders and directing the revenue authorities to accept the assessee’s declaration and close the matter. Delhi HC sets aside Reassessment Order passed without Considering Reply of Assessee RIYA GANGWANI vs ASSISTANT COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1224 In a recent case, the Delhi High Court set aside the reassessment order passed without considering the reply of the assessee. It was evident that the bank statement and the D-MAT for the concerned AY have not been noticed. set aside the impugned order dated 24.03.2023 passed under Section 148 A(d), and the consequent notice of even date, i.e., 24.03.2023 issued under Section 148 of the Act. While allowing the appeal, the division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia has directed the AO to pass a fresh order, albeit after taking into account the reply filed by the petitioner. Income Tax Exemption u/s 10(23C)(iiiac) allowable When 50% of Total Receipts of Grant Received by Institute of Liver and Biliary Sciences from Govt: Delhi HC COMMISSIONER OF INCOME TAX vs M/S INSTITUTE OF LIVER AND BILIARY SCIENCES 2023 TAXSCAN (HC) 1222 The Delhi High Court has held that the Income Tax exemption under section 10(23C)(iiiac) of the Income Tax Act, 1961 is allowable only when 50% of total receipts of grants are received by the Institute of Liver and Biliary Sciences from Government. A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia held that “If interest is included, then, grant-in-aid provided to the respondent/assessee is more than 50% of the total receipts.” Delay in Issuance Notice u/s 148A(b) Due to Technical Glitches on ITBA: Delhi HC quashes Reassessment Proceeding HIMANSHU INFRATECH PVT LTD vs INCOME TAX OFFICER & ORS 2023 TAXSCAN (HC) 1223 In a significant case, the Delhi High Court quashed the reassessment proceedings as the delay in issuance notice under section 148A(b) of the Income Tax Act, 1961 due to technical glitches on the Income Tax Business Application (ITBA). A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia quashed the impugned notice under Section 148A(b) and the impugned order under Section 148A(d) of the Income Tax Act, 1961. GST appeal cannot be Rejected on Non-Supply of Certified Copies: Orissa HC M/s. Ashish Kumar Kar vs Central Board of Indirect Taxes and Customs Dept of Revenue 2023 TAXSCAN (HC) 1217 In a recent case, the Orissa High Court held that Goods and Service Tax (GST) appeal cannot be rejected on non-supply of certified copies. A Division bench comprising Dr Justice B R Sarangi and Justice Murahari Sri Raman observed that nothing has been placed on record to that extent and mechanically the same has been rejected showing a non-supply of the certified copies. While allowing the petition the court set aside the order and remitted the matter back to the appellate authority to entertain the same. Consent of Parties for Extending Arbitral Period need not Necessarily be in Writing: Himachal Pradesh HC Balak Ram and others vs NHAI 2023 TAXSCAN (HC) 1216 The Himachal Pradesh Court recently observed that the consent of parties for extending arbitral period need not necessarily be in writing. The Court of Justice Jyotsna Rewal Dua observed that “In view of above discussion on facts & law, it has to be held that consent of the parties envisaged under Section 29A(3) of the 2015 Arbitration & Conciliation Act for extending the arbitral period need not necessarily be either express or in writing. There can be a deemed consent, an implied consent of the parties, which can be gathered from their acts and conduct.” LOC issued by Income Tax Dept due to Assessee Lacks of Contact: Bombay HC lifts Travel Bans on Assessee to Accompany Pregnant Daughter in Law Aarti Ramesh Chaurasia vs Deputy Director of Income Tax & Ors 2023 TAXSCAN (HC) 1221 The Bombay High Court lifted the travel ban on the assessee in the case of the Look Out Circular (LOC) issued by the Income Tax Department due to the lack of contact since she had to accompany her pregnant daughter-in-law to visit the doctor. A division bench comprising Justice G.S. Patel & Justice Neela Gokhale stayed the LOC until 10th September 2023 since the Petitioner proposes to travel to Dubai to accompany her pregnant daughter-in-law to the doctor. The permission was subject to usual conditions. Further held that the immigration authorities at all ports of departure including all airports will permit the Petitioner passage and permit the Petitioner to take his flights out of the country irrespective of whether the Income Tax Department has notified them or not and irrespective of whether this suspension is noted in the immigration authorities’ systems or not. Bombay HC Stays Customs Demand on Pending of Review Petition before Supreme Court in Canon India case Elite Aromas vs Union Of India 2023 TAXSCAN (HC) 1218 The Bombay High Court stayed customs demand on pending of the review petition before the Supreme Court in Canon India case. A Division Bench of Justices Jitendra Jain and GS Kulkarni observed that “After hearing learned counsel for the parties, it appears that the issues are not different from what the Court considered in the case of Idea Cellular Ltd., Viral Kanubhai Mehta and in the case of Irfan Hajiosman Nursumar. We accordingly pass similar orders on the present proceedings. Hence, Rule. Respondents waive service.” The Court concluded by noting that “As and by way of ad-interim relief, we stay the impugned order, however, liberty to the respondents to make an application for vacating of the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd.” Inadvertent Tax Payment: Gujarat HC directs Refund of IGST with Interest TAGROS CHEMICALS INDIA PVT. LTD vs UNION OF INDIA 2023 TAXSCAN (HC) 1215 In a recent decision the Gujarat High Court ordered the refund of Integrated Goods and Service Tax (IGST), with interest in an inadvertent tax case.
The Court further went on to note that the conditions mentioned in the aforesaid notification clearly envisages that all the conditions are not to be fulfilled or complied with by the petitioner but the conditions are to be complied with by the exporter. The petitioner uploaded the refund claim on 12.3.2021 however, the respondent on a technical ground did not grant the refund and passed the impugned order dated 22.6.2021. “The order dated 22.6.2021 passed by the respondents is hereby quashed and set aside and the respondents are directed to refund the amount of 23,09,100/- with interest applicable as per law within reasonable time from the date of receipt of copy of this judgment. Rule is made absolute” the Bench concluded. Publishing of DGFT Circular Granting 4% of SAD Refund on Official Website Amounts to Public Notice: Kerala HCM/S. ELITE GREEN PVT LTD vs UNDER SECRETARY 2023 TAXSCAN (HC) 1214 In a recent decision the Kerala High Court observed that the publishing of the Indian Directorate General of Foreign Trade (DGFT) Circular granting 4% of special additional duty (SAD) refund on an official website amount to public notice. A Single Bench of Justice Dinesh Kumar Singh observed that “I do not find substance in the submission of the Counsel for the petitioner that the public notice was not issued regarding Circular No.18/2013-Cus. dated 29.04.2013. If the said Circular was published on the official website of the DGFT, it amounts that the public notice was given about the Circular.
” Application u/s 34 Arbitration Act Remains ‘Stillborn’ for Purpose of Stay without Pre-Deposit under Section 19 of MSMED Act: Calcutta HC The Board of Major Port Authority for the Shyama Prasad Mookerjee Port vs Marine Craft Engineers Private Limited. 2023 TAXSCAN (HC) 1213 The Calcutta High Court in a recent decision observed that an application under Section 34 of the Arbitration Act remains ‘Stillborn’ for the purpose of stay without pre-deposit under Section 19 of the Micro, Small and Medium Enterprises Development Act, 2006. For the second issue the Court of Justice Moushumi Bhattacharya observed that “Since the petitioner has admittedly not made the pre-deposit under section 19 of the MSMED Act, the section 34 application filed by the petitioner remains eclipsed in the eye of law as the foundation for a prayer for stay of the arbitral award under section 36(2) of the 1996 Act. Therefore, the present application for stay of the impugned award filed under section 36(2) of the 1996 Act cannot be entertained as the said application is foisted on a stillborn section 34 application.” Remedy Against Provisional Attachment Must be Availed under Rule 159(5) under CGST Rules Before Approaching Court:
Allahabad HC Smt. Lalita vs Central Goods And Service Tax 2023 TAXSCAN (HC) 1212 The Allahabad High Court has held that remedy against provisional attachment must be availed Rule 159(5) of the Central Goods and Service Tax Rules, 2017 before approaching court. Since the bank account of the petitioner has remained attached since April 2022 a division bench comprising Pritinker Diwaker, Chief Justice and Ashutosh Srivastava, Justice directed the petitioner to approach respondent no. 1 within two weeks from today, under Rule 159 (5) by filing objections the respondent no. 1 shall make all endeavour to take a decision thereupon as per law expeditiously preferably within three weeks of filing such objection under Rule 159 (5) of the CGST rules, 2017. Tax Dept Rejected Refund Application Stating They can Keep it in Abeyance Until An appeal Filed: Patna HC Deprecates Conduct of State Tax Authority and Restores Application Progressive Constructions Limited a Private Limited vs The State of Bihar through Commissioner of State Tax 2023 TAXSCAN (HC) 1211 In a recent case, the Patna High Court deprecates the conduct of state tax authorities in rejecting refund applications stating they can keep it in abeyance until an appeal is filed and restored application. The Division bench comprising Chief Justice K. Vinod Chandran and Justice Partha Sarthy deprecated the conduct of the Officer in the strongest of terms and allowed the writ petition by setting aside the impugned order. Shri D.V. Pathy, counsel appeared for the petitioner and Shri Vikash Kumar, counsel appeared for the respondents.
ATM Management Services Provided to Banks Not Liable to VAT as No Sale or Transfer of Ownership or Possession involved, only Service Tax Applies: Karnataka HC FIS PAYMENT SOLUTIONS vs THE STATE OF KARNATAKA 2023 TAXSCAN (HC) 1210 The High Court of Karnataka has held that the Automated Teller Machine (ATM) Management Services provided by service provider companies to the banks are not liable to Value Added Tax (VAT) as there is no sale, transfer of ownership or possession involved in such transactions. The bench cited relevant judgments, including those of the Supreme Court and the Andhra Pradesh High Court and established that the transaction did not involve a transfer of right to use goods, which is a prerequisite for levying VAT and held that ATM Management Services were not liable for VAT. In conclusion, the single bench of Justice S R Krishna Kumar allowed both writ petitions filed by the petitioner and quashed the re-assessment orders and demand notices issued by the respondent revenue authorities. Mere use of word ‘Arbitration’ or ‘Arbitrator’ not enough to Constitute Arbitration Agreement: Delhi HC PURE DIETS INDIA LIMITED vs LOKMANGAL AGRO INDUSTRIES LTD. 2023 TAXSCAN (HC) 1209 In a recent decision the Delhi High Court observed that mere use of word ‘arbitration’ or ‘arbitrator’ not enough to constitute an arbitration agreement.
A Single Bench of Justice Jyoti Singh concluded that “I am unable to discern an unambiguous, certain or unequivocal intent of the parties from a reading of Clause 15.7 to resort to arbitration as mode of settlement of their disputes arising out of Agreement. In fact, the plea of the Petitioner is further negated by incorporation of Clause 15.2 in the Agreement which is an exclusive jurisdiction Clause providing for adjudication of disputes through Courts at Delhi.” Plea before Delhi HC on Issue of Communications to Suppliers of Assessee without Valid Provisional Attachment Order: GST Dept Ensures to be “More Careful” REDAMANCY WORLD vs ADDITIONAL DIRECTOR GENERAL GOODS AND SERVICES TAX INTELLIGENCE 2023 TAXSCAN (HC) 1208 In a plea before the Delhi High Court on the issue of communications to suppliers of assessee, Redamancy World without valid provisional attachment order and the GST Department ensured before the Delhi High Court to be “More Careful”.
A Division Bench comprising Justices Vibhu Bakhru and Amit Mahajan observed that “We do not find that there is any specific noting in the files, to the effect that such an action is necessary in the facts of the present case. Although, the files produced today indicate that there are allegations of wrongful availment of Input Tax Credit by the petitioner and the respondent authorities are also investigating the chain of suppliers; there is no order passed by the Commissioner recording his satisfaction that orders of provisional attachment are necessary to safeguard the interests of Revenue.” Satish Aggarwala, counsel who appeared for the respondents assured before the Delhi High Court that respondents will be more careful in future in ensuring that orders such as attachment of the bank accounts or assets is issued strictly in accordance with the provisions of the CGST Act. Goods in Transit cannot be Treated as non-Traceable in Presence of Tax Invoice, E-Way Bill and Bilty: Allahabad HC M/S Bhawani Traders vs State of U.P 2023 TAXSCAN (HC) 1204 In a recent decision the Allahabad High Court held that goods in transit cannot be treated as non-traceable in the presence of Tax invoices, E-Way bills and Bilty.
A Division Bench comprising of Justices Ashutosh Srivastava and Pritinker Diwaker observed that “The E-way Bills being the documents of title to the goods were accompanying the goods hence, the conclusion of the revenue that the petitioner was not the owner of the goods is patently erroneous. Consequently, the penalty proceedings were liable to be initiated under Section 129(1)(a) and not 129(1)(b) as has been done in the present case.” Services Rendered Abroad amount to Export Services, GST Not Applicable: Bombay HC Jar Productions Private Limited vs The Union of India & Ors. 2023 TAXSCAN (HC) 1286 In a recent case the Bombay High Court no Goods and Service Tax (GST) applicable to Services rendered abroad since it amount to export services. A division bench comprising Justice S V Gangapurwala & Justice M G Sewlikar held that “the recipient petitioner has rendered services to the ASCL abroad i.e. in U.K. Therefore, GST does not apply to the services rendered abroad as they amount to the export of services.” While allowing the appeal, the Court set aside the orders. Shri Prasad Paranjape appeared for the Petitioner and Shri Pradeep Jetly, appeared for the Respondent. Calcutta HC directs WB Govt to take necessary steps to Pay Extra Tax liability for Execution of ongoing Government Contracts given under both Pre and Post GST Tapan Debnath vs
The State of West Bengal & Ors. 2023 TAXSCAN (HC) 1284 A Single bench of Justice Md. Nizamuddin of Calcutta High Court directed the West Bengal Government to take necessary steps to pay the extra liability for the execution of ongoing government contracts given under either Pre or Post Goods and Services Tax (GST) regime. The High Court also recorded that the Additional Chief Secretary, while taking decision on the representation to be filed by the petitioner, shall act in accordance with law and pass a reasoned and speaking order on merit and after considering all the judgements of different High Courts upon which petitioners intend to rely. Reuse of E-way Bills and Tax Invoices shows Intention to Evade Tax Payment: Punjab and Haryana HC M/s Bright Road Logistics vs State of Haryana and others 2023 TAXSCAN (HC) 1282 In a recent judgment pronounced by the Punjab and Haryana High Court, Justices G.S. Sandhawalia and Harpreet Kaur Jeewan noted that the act of utilising E-way bills and tax invoices again suggests a deliberate effort to avoid making proper tax payments and upheld the penalty imposed by the First Appellate Authority of GST. While dismissing the appeal, the Punjab and Haryana High Court clearly stated that “‘Intention to evade payment of tax’ is an essential ingredient, for initiating proceedings against a person under section 130 of the said Act. In the present case, the petitioner had tried to reuse the e-way bills and the tax invoices, as such the intention to evade the payment of tax is impliedly proved on record. Hence, the order passed by the Proper Officer under Section 129 as well as under Section 130 of the CGST Act, 2017 read with the provisions of IGST Act, 2017 is legal and valid and has been rightly upheld by the appellate authority.”
Burden of Purchaser is Limited to verify GST registration on GST Portal and not expected to Speak about Suppliers’ manner of Obtaining Registration: Andhra Pradesh HC M/S. ARHAAN FERROUS AND NON-FERROUS SOLUTIONS PVT.LTD vs THE DEPUTY ASSISTANT COMMISSIONER 2023 TAXSCAN (HC) 1283 In a recent ruling, the Andhra Pradesh High Court (HC) has stated that the obligation or duty of the buyer is confined to proving that they genuinely acquired goods from the seller in exchange for valuable payment. This can be accomplished by confirming the Goods and Services Tax (GST) Registration through the GST portal. The 1st respondent shall release the detained goods in favour of 1st petitioner on his deposit of 25% of their value and executing personal bond for the balance and he shall also release the vehicles in favour of the 2nd petitioner (the transporter engaged by the 1st petitioner) in the respective writ petitions on their executing personal security bonds for the value of the vehicles as determined by concerned Road Transport Authority
. Excess Stocks should Represent Income from Undisclosed Sources: Orissa HC Dismisses Appeal by Income Tax Department Principal Commissioner of Income vs Dimple Murarka 2023 TAXSCAN (HC) 1278 In a significant ruling the Orissa High Court, dismissed an appeal filed by the Income Tax Department and observed that excess stocks should represent income from undisclosed sources. A Division Bench of Justices Arindam Sinha and SK Mishra observed that “Here, the Tribunal noted that the PCIT had only come upon an inflated stock statement and there was no inquiry or verification in respect thereof. We do not find any substantial question of law arises in the appeal for admission. It is dismissed.” Allotment of Shares in Scheme of Amalgamation is not Construed as Transfer u/s 47(vii) of Income Tax Act: Delhi HC BANYAN REAL ESTATE FUND MAURITIUS vs ASSISTANT COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1279 The Delhi High Court held that the allotment of shares in a scheme of amalgamation was not construed as transfer under Section 47(vii) of the Income Tax Act,1961.
The two-member bench comprising Rajiv Shakdher and Girish Kathpalia stayed the order passed under Section 148A(d) of the Income Tax Act and the consequent notice issued under Section 148 of the Income Tax Act. Relief to Punjab and Sind Bank: Delhi HC allows Refund of Rs.1.3 crores Deposited by Bank on ground of Involvement of Public Funds PUNJAB AND SIND BANK vs ADDL. COMMISSIONER OF INCOME TAX-TDS 2023 TAXSCAN (HC) 1280 The Delhi High Court granted relief to the Punjab and Sind Bank by allowing the refund of the amount Rs. 1,36,04,250/- deposited by the bank on the ground of involvement of public funds. The two-member bench comprising Rajiv Shakdher and J Girish Kathpalia held that the revenue had to refund the amount deposited by the petitioner bank amounting to Rs.1,36,04,250/-. No Authority given to ITAT to recall an Order passed u/s 254(2) of Income Tax Act after expiry of four years: Delhi HC COMMISSIONER OF INCOME TAX vs L.G. ELECTRONICS INC. KOREA 2023 TAXSCAN (HC) 1281 The Delhi High Court held that the Income Tax Appellate Tribunal (ITAT) had no power to recall an order in the exercise of power under section 254(2) of the Income Tax Act, 1961 after the expiry of four years. The two-member bench comprising Rajiv Shakdher and Girish Kathpalia closed the appeal and granted liberty to the appellant/revenue to file a writ petition, given the judgment of Lachman Dass Bhatia Vs. Assistant Commissioner of Income Tax.
No Recovery of Refunded Cess Amount by Revenue Department: J&K and Ladakh HC dismisses Appeal Filed with Delay of 1488 days Commissioner Central GST and Central Excise J&K vs Intex Industries SIDCO Industrial Complex 2023 TAXSCAN (HC) 1277 The Jammu and Kashmir and Ladakh High Court dismissed appeal filed with delay of 1488 days and upheld the ruling that no recovery of refunded cess amount by the Revenue Department. A Division Bench of the High Court comprising Chief Justice N Kotiswar Singh and Justice Wasim Sadiq Nargal observed that “In view of the above, what has been said by the Division Bench of this Court in order dated 23.05.2022 passed in CEA No. 10/2020 and also upheld by the Supreme Court, same applies on all counts to the application on hand. Accordingly, the appeal bearing No. CEA No. 117/2023 is dismissed along with connected applications(s) being barred by limitation.” Payment of Service Tax under Category of ‘Mining Services’ based on Circular by Central Government: Bombay HC directs to File Matter before Designated Officer International Association of Drilling Contractors vs Union of India & Ors 2023 TAXSCAN (HC) 1276 In the matter of payment of Service Tax under the category of ‘Mining Services’ based on Circular by Central Government, the Bombay High Court directed the petitioners, International Association of Drilling Contractors (South Central Asia Chapter) and Anr, to file the matter before the Designated Officer.
“In a petition which is filed by the association, it may not be appropriate for us to examine the validity of the impugned circular. The same is already subject matter of contention in the show cause notice issued to one of the petitioner’s member M/s. Transocean Offshore International Ventures Ltd., and it would be for such member of the petitioner, who would be entitled to raise all contentions in regard to the circular by raising all permissible contentions in law and on facts. If such contentions are raised, certainly they fall for consideration of the Designated Officer who would, if at all, is to adjudicate the show cause notice” the Court concluded. Economic Offender found Financially Poor: Telangana HC reduces Surety amount imposed by Economic Offences Court from Rs. 2 lakhs to Rs. 25,000 Vallikkadan Mazhoo vs The Superintendent of Customs 2023 TAXSCAN (HC) 1275 A Single Bench of Justice G. Anupama Chakravarthy of Telangana High Court reduced the surety amount imposed by the Economic Offences Court from Rs. 2 lakhs to Rs. 25,000 on grounds that the offender was found financially poor.
Thus, the bench decided that “The petitioner is directed to be released on bail on condition of his executing a personal bond for a sum of with one surety for a likesum to the satisfaction of Special Judge for Economic Offences, Hyderabad.” S. Ganesh, Assistant Public Prosecutor appeared on behalf of the Respondent, state. Non-Providing of Accountant General Report on which, Property Tax is Demanded Amounts to Natural Justice Violation: Karnataka HC Grants Relief to Rockline Entertainments M/S. ROCKLINE ENTERTAINMENTS PVT. LTD vs COMMISSIONER BBMP 2023 TAXSCAN (HC) 1274 In a major relief to Rockline Entertainments, the Karnataka High Court ruled that non-providing of Accountant General report on which, property tax is demanded amounts to natural justice violation.
“Non-providing of Accountant General report on which, the tax demand is based as could be found from the impugned order passed in Miscellaneous Appeal, would amount to violation of principles of natural justice. Any document which is relied upon by respondent-BBMP to determine the tax liability ought to be furnished to the assessee, so that the assessee would be in a position to answer the same” the Court concluded. Movement of Vehicle Carrying Diesel without Proper Invoice and Transport Document in Violation of TNVAT Act: Madras HC orders Rs 1 Lakh as Security Penalty M/s.Kumutham Agencies vs State Tax Officer-II 2023 TAXSCAN (HC) 1273 The Madras High Court ordered to pay Rupees one lakh as security penalty as the movement of the seized vehicle carrying diesel was without proper invoice and transport document in violation of the Tamil Nadu Value Added Tax Act, 2006
(TNVAT Act). The Court further directed that considering the fact that the product in the vehicle is diesel which is prone to inflammable, Court is inclined to order provisional release of the vehicle, subject to the petitioner paying the disputed tax that has been arrived in the impugned order and a further sum of Rs.1,00,000/- (Rupees One Lakh Only) towards security penalty imposed within a period of seven days from the date of receipt of a copy of this order. Delhi Excise Policy Case: Delhi HC Grants Bail to YSRCP MP’s Son Raghav Magunta on Medical Grounds RAGAHAV MAGUNTA vs DIRECTORATE OF ENFORCEMENT 2023 TAXSCAN (HC) 1272 The Delhi High Court granted bail to Yuvajana Sramika Rythu Congress Party (YSRCP) Member of Parliament (MP’s) son, Raghav Magunta on medical grounds in the much-discussed Delhi Excise Policy case. A Single Judge Bench of Justice Dinesh Kumar Sharma observed that “It is a matter of the record that the affidavit filed by the E.D. is only on the peculiar facts and circumstances and therefore this order may not be taken as a precedent for benefit of other accused persons and may also not be taken as a precedent in any other case.
Let the petitioner be released on regular bail on furnish a personal bond of Rs. 2,00,000/- (Rupees Two Lakhs) with two sureties of like amount to the satisfaction of the learned Trial Court on the following terms and conditions”. “In view of the statement made and the facts narrated herein above, the interim bail granted vide order dated 18.07.2023 for four weeks on medical grounds is made absolute” the Court noted. Deposit of Balance Amount Payable under Direct Tax Vivad Se Vishwas Act Delayed on Unforeseen Circumstances: Allahabad HC Condones Delay of 3 Days Digvendra Pratap Singh vs Union Of India 2023 TAXSCAN (HC) 1270 The Allahabad High Court condoned delay of 3 days on the ground that the deposit of balance amount payable under Direct Tax Vivad Se Vishwas Act (DTVSVA) delayed on unforeseen circumstances. “In view of the law mentioned above, as well as considering the pleadings and perusal of record, the Court is of the view that a delay of three days in depositing the arrears of tax of Rs. 8,67,137/- deserves to be condoned, and the amount balance tax deposited by the petitioner be accepted by the respondents treating the same well within time as per the scheme of the Direct Tax Vivad Se Vishwas Act, 2020 and also the impugned order /letter, passed by Central Board of Direct Tax, is hereby quashed” the Court concluded. TDS Deduction on Unsecured Loan: Calcutta HC Confirms Order u/s 148A(d) of Income Tax Act SAFEX COMPLEX PRIVATE LIMITED vs UNION OF INDIA AND ORS 2023 TAXSCAN (HC) 1271 The Calcutta High Court confirmed an order under Section 148A(d) of the Income Tax Act, 1961 in the matter relating to Tax Deduction at Source (TDS) deduction on unsecured loan. A Single Bench of Justice Md Nizamuddin observed that “Considering the facts and circumstances of this case and the records produced by the learned advocate appearing for the respondents,
I am not inclined to interfere with the impugned order under Section 148A(d) of the Income Tax Act, 1961 and accordingly this writ petition being WPO 1288 of 2023 is dismissed”. Bombay HC Quashes MVAT Review Order Disallowing Deductions for Works Contract Project Citing Excess Scope & Misapplied Deductions Kalpataru Power Transmission Ltd vs State of Maharashtra 2023 TAXSCAN (HC) 1269 The High Court of Bombay has quashed the Maharashtra Value Added Tax (MVAT) Review Order that disallowed deductions for Works Contract Project citing excess scope and misapplied deductions on the part of the revenue authorities. The division bench comprising Justice G. S. Kulkarni and Justice Jitendra Jain ruled in favour of Kalpataru Power Transmission Ltd., stating that the review order was passed without jurisdiction and in violation of the principles of natural justice. In result, the writ petition is allowed and the review order as well as the order rejecting the rectification application were quashed. Bank’s “Secured Debts” Prevail Over Revenue’s “First Charge” in Property Recovery, SARFAESI and RDB Acts Override KGST and KVAT Act Claims:
Kerala HC STATE BANK OF INDIA vs STATE OF KERALA REP 2023 TAXSCAN (HC) 1268 The High Court of Kerala has held that banks and financial institutions hold priority over revenue authorities’ “First Charge” when recovering debts through property sales. The single bench of Justice Devan Ramachandran held that the Banks/Financial Institutions have priority over the Revenue’s claim in recovering their debts under the SARFAESI Act and RDB Act. In result, the writ petitions are allowed and the respective orders or actions of the Revenue are quashed or set aside. Members of Families Bound by Terms of Arbitration Agreement Executed between Heads of Two Branches of Families, on Signing Agreement: Delhi HC MRS VINNU GOEL vs MR SATISH GOEL & ORS 2023 TAXSCAN (HC) 1267 In a major decision a Single Judge Bench of the Delhi High Court ruled that the members of the families are bound by the terms of arbitration agreement executed between the heads of two branches of families, on signing the arbitration agreement.
“The submission of the counsel for the plaintiff that the parties to the present suit cannot be referred to arbitration, as defendant no.8 is not a signatory to the MoU also cannot be accepted. It is relevant to note that the defendant no.8 is the daughter of the plaintiff and the defendant no.1” the Court added. PMLA: Karnataka HC Stays ED’s Money Laundering Case Against CPI(M) Leader’s Son Bineesh Kodiyeri In a significant money laundering case against Binnesh Koderi. who is the son of Former CPI(M) Leader Kodiyeri Balakrishnan, the Karnataka High Court stayed the Enforcement Department (ED) Proceeding under PMLA Act, after the Arrest. A single judge bench of Justice Hemant Chandangoudar then ordered “In Interim order as prayed for insofar it relates to the petitioner herein. List this matter after two weeks.” The special court is likely to frame charges against him on August 18. Tax Effect Less than Threshold Limit Fixed by CBDT: Calcutta HC Dismisses Appeal by Income Tax Department PRINCIPAL COMMISSIONER OF INCOME TAX-2 vs M/S. DEEPAK INDUSTRIES LTD 2023 TAXSCAN (HC) 1265 The Calcutta High Court dismissed an appeal by the Income Tax Department as the tax effect was less than the threshold limit fixed by the Central Board of Direct Taxes (CBDT). “As could be seen from the above table, the total tax is Rs.80,05,462/-. Thus, it is clear that the tax effect in the instant case is less than the threshold limit fixed by the CBDT. Hence the revenue cannot pursue this appeal. Accordingly, the appeal stands disposed of on the ground of low tax effect and the substantial questions of law are left open” the Court concluded. No Tax Concession to Company as Promoters Gifted Shares to Company instead of Sale to Avoid Capital Gain Tax:
Delhi HC PR DIRECTOR GENERAL OF INCOME TAX vs M/S THE INDIAN PLYWOOD MFG. CO. PVT. LTD. & ANR. 2023 TAXSCAN (HC) 1264 In a recent decision the Delhi High Court ruled that there can be no tax concession to company as promoters gifted shares to the company instead of sale to avoid capital gain tax. A Division Bench of Justices Vibhu Bakhru and Amit Mahajan held that “Neither the order dated 26.02.2013 nor the impugned order indicate that the BIFR had examined the transactions, which had led to the capital gains arising in the hands of the Company or the context in which additional concessions were sought. In view of the above, the impugned order cannot be sustained. The same is set aside. The Income Tax Department is not required to grant any further concessions contrary to the Income Tax Act, to the Company.” No Additional Concession Could be Included in BIFR Scheme by
Income Tax Dept without any Extension or Modification: Delhi HC PR DIRECTOR GENERAL OF INCOME TAX vs M/S THE INDIAN PLYWOOD MFG. CO. PVT. LTD. & ANR. 2023 TAXSCAN (HC) 1264 The Delhi High Court in a recent decision observed that no additional concession could be included in Board for Industrial and Financial Reconstruction (BIFR) Scheme by Income Tax Department without any extension or modification. “In view of the above, there is merit in the contention that the Scheme sanctioned by the BIFR had expired. The Scheme contemplated measures for exceeding the net worth within the period specified in the Scheme and in the manner as stipulated therein viz by settlement with banks and workmen, repayment of statutory dues in instalments over a specified period of time, and infusion of funds by the promoters and sale of certain assets, and other measures” the Court noted. Bombay HC quashes Income Tax Notice seeking Reopening of Assessment on Incorrect Facts Arvind Sahdeo Gupta vs Income Tax Officer 2023 TAXSCAN (HC) 1266 In a recent decision the Bombay High Court quashed an income tax notice seeking reopening of the assessment on incorrect facts. A Division Bench comprising Justices Vrushali V Joshi and AS Chandurkar observed that
“The notice suffers from fundamental factual errors. An exceptional case thus having been made out to interfere in exercise of writ jurisdiction, the impugned notice issued under Section 148 of the Income Tax is quashed and set-aside. Consequentially, further steps taken by the respondents based on said notice would no longer survive.” Trial Court should decide GST Fraud case on Evidence Uninfluenced by Observations in Bail Order: Punjab and Haryana HC Directorate General of Goods and Service Tax Intelligence vs Sahil Garg 2023 TAXSCAN (HC) 1261 The Punjab and Haryana High Court observed that Trial Court should decide GST Fraud case on evidence uninfluenced by observations in bail order. The Court further noted that the impugned order passed by the Additional Sessions Judge, is ordered to be modified to the extent that the observations in the said order were made only for the purposes of disposal of the bail application and the trial Court shall decide the main case on the basis of the evidence led by both the parties,
uninfluenced by the observations made in the impugned order. Electricity Excluded from ‘Goods’; Assessment Order should comply with Section 25(1) of KVAT Act: Kerala HC M/S.SRINIVASA BUILDERS vs THE COMMERCIAL TAX OFFICER 2023 TAXSCAN (HC) 1259 In a major decision the Kerala High Court ruled that electricity is excluded from ‘Goods’ and assessment order should comply with Section 25(1) of Kerala Value Added Tax Act, 2003 (KVAT Act). “Therefore, the charge against the petitioner could, at best, be one of filing of an incorrect return and not of suppression of taxable turnover or attempt to evade tax. In the above circumstances, the essential ingredient under Section 25(1) would not be available to sustain an order of assessment on best judgment” the Bench noted. Relief to Max Life Insurance: Delhi HC directs Income Tax Dept to Refund Rs 221 Crores of Excess Outstanding Demand MAX LIFE INSURANCE COMPANY LIMITED vs ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2023 TAXSCAN (HC) 1260 In a major relief to Max Life Insurance Company Limited, the Delhi High Court directed the Income Tax Department to refund excess outstanding demand of Rupees 221 crores. A Division Bench of Justices Rajiv Shakdher and Girish Kathpalia observed that “The respondents/revenue will refund the amount which is in excess of 20% of the outstanding demand, i.e., Rs.221,03,71,862/-, concerning AY 2017-18. The said sum will also include Rs.12,68,20,270/-, that was sought to be adjusted against the disputed demand for AY 2017-18 by respondent no.1.”
The Court further noted that the CIT(A) will endeavour to dispose of the appeal at the earliest. The amount will be remitted as expeditiously as possible, though, not later than six (6) weeks from the date of receipt of this order, along with applicable interest. Alchemist Group Case: Jharkhand HC grants Bail to Director of Company alleged of Cheating Investors on False Promises Krishna Kabir vs Union of India through Central Bureau of Investigation 2023 TAXSCAN (HC) 1263 The Jharkhand High Court granted bail to the Director of Company alleged of cheating investors on false promises in the much-celebrated Alchemist Group Case. A Single Bench of Justice Gautam Kumar Choudhary observed that “Considering the submissions of learned counsel and considering that the chargesheet has already been submitted and the fact as discussed above, the anticipatory bail application is allowed.” “Hence, in the event of his arrest or surrender within a period of three weeks from the date of receipt of a copy of this order before the learned court below, the petitioner named above shall be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees One Lakh) with two sureties of the like amount each to the satisfaction of learned Court below and subject to the condition that one of the Bailors must be Income Tax Payee and subject to the conditions laid down under Section 438(2) Cr. P.C” the Court concluded.