Tax Judgment of High Courts Annual Digest 2023 (Part-10)

Top Stories Tax Judgment of High Courts Annual Digest 2023 (Part-10) By Yogitha S. Yogesh – On January 7, 2024 11:37 am – 35 mins read This Annual Case Digest analytically summarizes the key stories related to Tax judgements of various High Courts in India reported in Taxsca.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. Challenge of Penalty Order passed under KVAT Act with Delay of 9 Years: Kerala HC dismisses Writ Petition on Gross Delay M/S. SHREE ABIRAMI ENGINEERING WORKS vs THE STATE TAX OFFICER 2023 TAXSCAN (HC) 1469 The Kerala High Court dismissed a writ petition citing gross delay as the penalty order passed under the Kerala Value Added Tax Act (KVAT Act), 2003 was challenged with a delay of 9 years. A Single Bench of Justice Dinesh Kumar Singh observed that “This Court does not find any ground to entertain such a belated petition, whereby the penalty order has been challenged before this Court.” “This Court finds that the writ petition is not maintainable on the ground of gross delay and laches in filing this writ petition. Therefore, the writ petition is hereby dismissed” the Court concluded. E.P Govindan, counsel appeared for the petitioner and Jasmin M.M, Government Pleader appeared for the respondents. Challenge of Assessment Order and Stay Petition:

Kerala HC directs Income Tax Commissioner to decide Stay Petition Expeditiously PALLIKARA KRISHNAKUTTY NAIR RAMACHANDRAN vs ADDITIONAL /JOINT/DEPUTY/ COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1464 The Kerala High Court directed Income Tax Commissioner to decide the stay petition expeditiously in the matter of challenge on assessment order and stay petition. A Single Bench of Justice CS Dias observed directed the 2nd respondent, Commissioner of Income Tax to consider and dispose of the stay petition, in accordance with law and as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of this judgment after affording the petitioner an opportunity of being heard. It was also made clear that if the 2nd respondent proposes to

pass any conditional interim order of stay, the Commissioner of Income Tax shall state reasons for the same and until such time orders are passed on the stay petition, all further proceedings pursuant to the assessment order and the notice issued by the Income Tax Officer shall stand deferred. Anil D.Nair, the Counsel appeared for the petitioner and Christopher Abraham, the Counsel appeared for the respondents. Non-Filing of ITR on Bonafide Belief of Exemption u/s 80P of Income Tax Act: Kerala HC directs to File ITR MUVATTUPUZHA HOUSING CO-OPERATIVE SOCIETY LTD vs THE INCOME TAX OFFICER 2023 TAXSCAN (HC) 1467 The Kerala High Court directed to Income Tax

Returns (ITR) as there was non-filing of the income tax returns on bonafide belief of the exemption under Section 80P of the Income Tax Act, 1961. A Single Bench comprising observed that “The present writ petitions are disposed of with liberty to the petitioners to file returns of their income within a period of one month from today. If the petitioners file their return of income within a period of one month from today, the assessing authority will examine the return in accordance with the law and pass the final assessment orders expeditiously.” Challenge of final order passed by Settlement Commissioner after 9 years: Calcutta HC dismisses Income Tax Appeal COMMISSIONER OF INCOME TAX

 

vs INCOME TAX SETTLEMENT COMMISSION AND SARMILA GHOSH 2023 TAXSCAN (HC) 1468 The Calcutta High Court dismissed an income tax appeal on the ground that the challenge of the final order passed by Settlement Commissioner was made after 9 years. A Division Bench of Justice Debangsu Basak and Md Shabbar Rashidi observed that “A period of nine years elapsed since the final order was passed by the Settlement Commission without the same being assailed by the parties thereto. In such circumstances, we are not minded to interfere with the appeal. Points of law raised are kept open.” Demand of 20% of Tax for Conditional Stay on Primary Agricultural Credit Society: Kerala HC directs Appellate Authority to decide Matter within 3 Months SOORANAD GRAMODHARANA SERVICE COOPERATIVE BANK

LTD vs THE CENTRAL BOARD OF DIRECT TAXES 2023 TAXSCAN (HC) 1466 The Kerala High Court directed the Appellate Authority to decide matter within 3 months in the matter of demand of 20% of tax for the conditional stay on a Primary Agricultural Credit Society. A Single Bench of Justice Dinesh Kumar Singh observed that “I find that this writ petition to be disposed of with a direction to the appellate authority to decide the appeal, within a period of three months without insisting upon pre-deposit of 20% of the assessed tax. The petitioner should co-operate in deciding the appeal expeditiously.” Notice Demanding Sales Tax issued after 3 Months Limitation u/s 86 of Finance Act when Assesee Prepared sale Tax Appeal: Kerala HC allows one Month to File Appeal KOLLAD SERVICE CO-OPERATIVE BANK LTD vs THE DEPUTY COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE 2023 TAXSCAN (HC) 1462 The Kerala High Court allowed one-month time to file an appeal under sales tax as the notice demanding sales tax was issued after a three-month limitation under section 86 of the Finance Act, 1994 when the assessee prepared a sales tax appeal. Considering the circumstance the single judge bench comprising

 

Justice Dinesh Kumar Singh petitioner was granted one month to file an appeal against the order. It was further held that “for one month from today, the impugned notice shall not be implemented.” Telephonic Intimation of Recovery Proceeding under CGST Act: Kerala HC directs to issue an Authenticated Copy of Assessment Order M/S SEASONAL TRIP vs SUPERINTENDENT 2023 TAXSCAN (HC) 1460 The Kerala High Court has directed the Goods and Service Tax (GST) Department to issue the authenticated copy of the assessment order as the recovery proceedings are initiated under the central Goods and Service Tax (CGST), 2017 through telephonic intimation. Considering the facts and circumstances, the single judge bench of Justice Dinesh Kumar Singh disposed of the writ petition with a direction to the 1st respondents to issue an authenticated copy of the order in original dated 16.12.2020 passed by the Assistant Commissioner, Central Tax and

Central Excise, Ernakulam Division, Cochin, within five days. The petitioner is free to take any statutory remedy applicable to him. Mismatch in GSTR-1 and GSTR-3B: Kerala HC sets aside Assessment Order under CGST passed without Affording Opportunity of Hearing JOSE PAUL vs STATE TAX OFFICER 2023 TAXSCAN (HC) 1461 The Kerala High Court set aside the assessment order under Central goods and Service Tax (CGST) passed without providing opportunity of hearing. The assessment order was based on the mismatch found in GSTR -1 and GSTR -3B. Considering the aforesaid fact and admitted position, the single judge bench of Justice Dinesh Kumar Singh allowed the writ petition

and set aside the impugned order in along with the notice. The petitioner was directed to appear before the 1st respondent on 29.09.2023 at 11.00 a.m. with all the records in his possession for finalising the fresh assessment order in accordance with the law. Claim of Income Tax Deduction on Expenditure under Mistake: Delhi HC sets aside Penalty Imposed without Providing Hearing ALLIED ENGINEERING WORKS PRIVATE LIMITED vs NATIONAL FACELESS ASSESSMENT CENTRE 2023 TAXSCAN (HC) 1457 In a recent case, the Delhi High Court set aside the penalty imposed under the Income Tax Act, 1961 without providing a hearing. The penalty was imposed on the act of wrongful claim of 200% income Tax deduction instead of 100%. A division bench comprising Justice Rajiv Shakdher and Justice Girish

Kathpalia observed that “since personal hearing was not granted, we are inclined to set aside the impugned order and the consequential notice.” The Assessing Officer (AO) was granted liberty to pass a fresh order after according personal hearing to the authorized representative of the petitioner. Further added that “the AO will pass a speaking order which will deal with all contentions of the petitioner, including the contention that this was not a case of misreporting.” Recovery Proceedings under Income Tax Act during pendency of Stay Application: Kerala HC directs Expeditious Hearing RAMACHANDRAN VIJAY vs ADDITIONAL COMMISSIOENR 2023 TAXSCAN (HC)

 

1456 The Kerala High Court directed to decide the stay application expeditiously as the appeal against the income tax assessment order was filed along with the stay application. A single judge bench of Justice Dinesh Kumar Singh directed the 2nd respondent to take up the Ext.P3 application for stay and decide the same expeditiously within a period of two months. For a period of two months, recovery proceedings in pursuance to Ext.P1 shall not be carried out against the petitioner. Confirmation of Differential Tax Demand on not being Entitled to Concessional Rate of Tax against ‘C’ Forms: Kerala HC enhances Number of Instalments to make Payment JASMINE KOCHUNNI vs THE STATE TAX OFFICER-V 2023 TAXSCAN (HC) 1449 The Kerala High Court enhanced the number of instalments to make payment in the matter of confirmation of differential tax demand on not being entitled to concessional rate of tax against ‘C’ Forms. A Division Bench comprising Dr Justice AK Jayasankaran Nambiar and Dr Justice Kauser Edappagath observed that “Taking note of the said submission of the learned counsel for the appellant and finding no reason to interfere with the order of the Tribunal that required the appellant to pay 20% of the disputed demand as a condition for grant of stay of recovery of the balance amounts pending disposal of the Second Appeal, we merely

modify the judgment of the Single Judge to increase the number of instalments to six equated successive monthly instalments instead of the three instalments granted by the learned Single Judge.” “We uphold the judgment of the Single Judge and dismiss the Writ Appeal. We make it clear that if the appellant pays the amount, directed to be paid by the Tribunal in the order impugned in the writ petition, in six equal and successive monthly instalments commencing from 01.10.2023, then the said payment shall be treated as in compliance with the directions of the Tribunal in the order aforementioned, and the Tribunal shall thereafter proceed to hear the appeal on merits” the Court concluded. Four Months Delay in Refunding Excess VAT Paid: Kerala HC directs to Process Refund within One Month FUTURE FRAMES vs DEPUTY

COMMISSIONER OF STATE TAX 2023 TAXSCAN (HC) 1455 The Kerala High Court directed to process the refund within one month as there was a months delay in refunding excess Value Added Tax (VAT) paid under the Kerala Value Added Tax Act, 2003. A single judge bench of Justice Dinesh Kumar Singh disposed of the writ petition with direction to the 1st/2nd respondents to process Exhibit P-2 application of the petitioner for refund of the excess tax amount paid by him as per Exhibit P-1 order within one month. No Income Tax Liability on Compensation Awarded by MACT: Kerala HC directs to Refund TDS Deducted MALINI vs CHIEF COMMISSIONER OF INCOME TAX (TDS) 2023 TAXSCAN (HC) 1454 The Kerala High Court directed to refund Tax Deducted at Source (TDS) which was

deducted and deposited by the Insurance Company from the compensation paid to the petitioners as no Income Tax liability arose on compensation awarded by the Motor Accidents Claims Tribunal (MACT). A single-judge bench comprising Justice Dinesh Kumar Singh granted liberty to the petitioners to apply to the 1st respondent within ten days from today and the 1st respondent Commissioner of Income Tax (TDS), Kerala shall process the said application and refund the TDS amount deducted and deposited by the Insurance Company from the compensation paid to the petitioners. Such refund should be processed within one month after applying by the petitioners. Relief to Lulu International: Kerala HC quashes Assessment Order passed in absence of Consideration of Reply M/S. LULU INTERNATIONAL SHOPPING MALLS PRIVATE LIMITED vs DEPUTY COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1450 In a major relief to Lulu

International Shopping Malls Private Limited, the Kerala High Court quashed an assessment order passed in the absence of consideration of the reply filed by the petitioner. A Single Bench of Justice Dinesh Kumar Singh observed that “The liability of the tax is a civil liability. Principles of natural justice ought to be adhered to, while finalizing the assessment proceedings in respect of tax.” “I am of the view that the assessing officer has proceeded in a hurried manner to some extent, which is in violation of the principles of natural justice. Therefore, the impugned order is set aside and the respondents are directed to open the window for uploading objection to the show cause notice. No further time will be granted to the petitioner for the purpose” the Bench concluded. Retaining of Seized Cash Which includes Demonetised

2000 Rs Note for 6 months without Issuing SCN: Kerala HC directs to Release Cash T.H. FAZIL vs STATE TAX OFFICER 2023 TAXSCAN (HC) 1459 The Kerala High Court directed to release of cash as the department retained the seized cash which included a demonetised 2000 Rs note for 6 months without issuing a show cause notice(SCN). Considering the aforesaid facts, the single judge bench of Justice Dinesh Kumar Singh allowed the writ petition and directed the respondents to release the cash seized from the petitioners and credit the same to the account of the petitioners within five days. Failure of AO to Inquire into Documents of Foreign Remittance of 9 Crores: Delhi HC sets aside order Passed U/s 148 of Income Tax Act QUICKROUTES INTERNATIOANL PRIVATE LIMITED vs DEPUTY COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1451 The Delhi High Court set aside the order passed under section 148 of the Income Tax Act, 1961 as

the Assessing Officer failed to inquire about documents of foreign purchase which led to the foreign remittance of 9 Crores. The Division comprising Justice Rajiv Shakdher and Justice Girish Kathpalia bench comprising viewed that before passing the impugned order dated 01.05.2023, the AO could have called upon the petitioner to submit not only the SPA but also perhaps a letter of confirmation from IDFC. The Court set aside the impugned order, with liberty to the AO to pass a fresh order after he has called upon the petitioner to submit the requisite documents in support of its defence about the commencement of reassessment proceedings. Delay of 6 Months: Kerala HC quashes Rectification Application by Income Tax Department M/S RAMANTHALI SERVICE CO-OPERATIVE BANK LTD vs INCOME TAX OFFICER 2023 TAXSCAN (HC) 1452 The Kerala High Court quashed a rectification application filed by the Income Tax Department with a delay of 6 months. A Single Bench of Justice Dinesh Kumar Singh observed that “In view of the above, I find that the application filed by the Department seeking rectification of the order dated 14.03.2017 in respect of the petitioner was not maintainable and it was filed much

beyond the six months’ period of limitation prescribed under Section 254(2) of the Income Tax Act, 1961.” Non Filing of Income Tax Returns on belief of Exemption u/s 80P of Income Tax Act: Kerala HC directs to file ITR within 1 month MUVATTUPUZHA HOUSING CO-OPERATIVE SOCIETY LTD vs THE INCOME TAX OFFICER 2023 TAXSCAN (HC) 1453 The Kerala High Court directed to file the income tax returns within 1 month in the matter regarding non- filing of income tax returns on belief of exemption under Section 80P of the Income Tax Act, 1961. A Single Bench of Justice Dinesh Kumar Singh observed that “The present writ petitions are disposed of with liberty to the petitioners to file returns of their income within a period of one month from today. If the petitioners file their return of income within a period of one month from today, the assessing authority will examine the return in accordance with the law and pass the final assessment orders expeditiously.” Non-Consideration of Rectification Application for 4 years: Kerala HC directs ITO to decide Matter expeditiously DR.

N UTHAMAN vs THE INCOME TAX OFFICER 2023 TAXSCAN (HC) 1448 The Kerala High Court directed the Income Tax Officer (ITO) to decide matter regarding consideration of rectification application for 4 years. A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the instruction on behalf of the respondents, the petitioner is granted ten days time from today to file rectification application before the 1st respondent physically and the said rectification application shall be considered and order in accordance with law shall be passed by the 1st respondent expeditiously. Till the rectification application is decided by the 1st respondent, all proceedings in pursuance to Exhibit P-3 demand notice shall be kept in abeyance.” PF and ESI amount Paid after Due date due to National Holiday is Amenable to Deduction: Delhi HC M/S. AERO CLUB vs ASSISTANT COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1435 The Delhi High Court has held that provident fund (PF)and Employee State Insurance (ESI) amount paid after due date due to National Holiday is amenable

 

to deduction. The division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia relied on the decision of the court in the case of Pepsico ltd, wherein it was held that “ since the due date fell on a date which was a National Holiday, the deposit could have been made by the respondent/assessee only on the date which followed the National Holiday. Section 10 of the General Clauses Act would help the respondent/assessee to tide over the objections raised on behalf of the appellant/revenue.” The question of law, as framed, is answered in favour of the appellant/assessee and against the respondent/revenue. Calcutta HC strikes down Penalty in absence of Taxable Supply: Order U/s 129(3) of CGST Act remanded citing Inadequate Reasons & Non-consideration of petitioner’s objections DRB INFRATSTRUCTURE PVT LTD vs STATE OF WEST BENGAL AND ORS 2023 TAXSCAN (HC) 1446 The High Court of Calcutta, Circuit Bench at Jalpaiguri, has struck down a penalty imposed under Section 129(3) of the West Bengal Goods and Services Tax (WBGST)/Central Goods and Services Tax (CGST) Act, 2017 on the finding that there is no taxable supply effected by the petitioner. The single bench of Justice Ravi Krishan Kapur directed the

proper officer to consider the response submitted by the petitioner on February 13, 2023, and to issue a reasoned order within eight weeks from the date of the judgment. The petitioner has been instructed to maintain the bank guarantee they had furnished in compliance with an interim order dated June 16, 2023. This bank guarantee is to remain in force until the final resolution of the representation, the bench directed. The judgment underscores the importance of providing transparent and robust reasoning in the orders and decisions, ensuring that the taxpayers’ objections are adequately considered before imposing penalties. Challenge of Assessment after 4 Years: Kerala HC Directs GST Dept to decide Payment of GST Dues in Instalments KRISHNA STEEL ROLLING MILLS vs DEPUTY COMMISSIONER OF STATE TAX 2023 TAXSCAN (HC)1444 The Kerala High Court directed the GST Department to decide payment of GST dues in instalments in the matter of challenge of assessment after 4 years. A Single Bench of Justice Dinesh Kumar Singh observed that “This Court does not find this writ petition as maintainable against the assessment order that was passed in 2019. If the petitioner wants to deposit the tax in instalments, the petitioner may approach the Commissioner within a period of seven days from today, and then the Commissioner should decide the application within another period of seven days thereafter for granting instalments for payment of arrears of tax as assessed by the assessing authority.” Blocking Electronic Credit Ledger without granting Opportunity of Hearing: Kerala HC directs Re-adjudication M/S. M J GOLD vs JOINT COMMISSIONER 2023 TAXSCAN (HC) 1445 The Kerala High Court directed re-adjudication in the matter of blocking electronic credit ledger without granting the opportunity of hearing. The Court further directed that if the decision making process is delayed or the first respondent, Joint Commissioner of State Tax, is unable to take a decision tomorrow, the petitioner’s electronic credit ledger shall be unblocked to enable the petitioner to file its return. The first respondent shall make earnest efforts to pass fresh orders as above tomorrow itself. Allegation of uploading of Non-Signed Assessment Order in GST Portal: Kerala HC dismisses Writ Petition on Availability of Digitally Signed copy KOTTUKAPPILLIL GEOGY GEORGE vs THE STATE TAX OFFICER 2023 TAXSCAN (HC) 1443 The Kerala High Court dismissed a writ petition on availability of digitally signed copy in the matter of allegation of uploading non-signed assessment order in the GST Portal. A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the aforesaid submission of Government Pleader, I find no substance in the present writ petition. Therefore, the writ petition is dismissed leaving open the liberty of the petitioner to avail any other alternate remedy, if it is available in accordance with law.” Harisankar V. Menon, counsel, appeared for the petitioner as well as Reshmitha Ramachandran, Government Pleader, appeared for the respondents. CIT (A) has the power to Annul Assessment Order under the Income Tax Act: Delhi HC SATEESH KUMAR vs INCOME TAX OFFICER WARD 2023 TAXSCAN (HC) 1436 The Delhi High Court has held that the Commissioner of Income Tax (CIT (A)) has the power to Annul the Assessment Order under the Income Tax Act, 1961. The bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia prime facie viewed that the appeal was not maintainable and held that “the Commissioner of Income Tax (Appeals) [“CIT(A)”] had wide powers, whereby, if he was convinced of the case set up by the assessee, he could annul the assessment order, which would include the power to set it aside. Annulment of the assessment order would lead to its cancellation. In other words, the assessment order would cease to exist, relegating parties to the position obtained before the order was passed.” Assessment of Income by NFAC without considering Deposited Amount: Kerala HC directs Income Tax Dept to dispose Appeal KC SANTHOSH vs ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1441 The Kerala High Court directed the Income Tax Department to dispose of the appeal in relation the assessment of income by the National Faceless Assessment Centre (NFAC) without considering the deposited amount. A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the facts and circumstances, the second respondent is directed to consider and dispose of the appeal in accordance with law, preferably within a period of three months. It is made clear that if Exhibit P2 appeal is not taken up for final hearing within three months as directed above, the second respondent should make every endeavour to decide the application for condonation of delay and also stay petition.” Income Tax Addition of 6 Crores on Income Derived From House Property Abutting Assessee’s Hotel: Delhi HC dismisses Appeal as matter Pending Before SC PR.COMMISSIONER OF INCOME TAX vs C J INTERNATIONAL HOTELS LTD 2023 TAXSCAN (HC) 1440 The Delhi High Court dismissed the appeal on the issue of an Income tax addition of 6 crores on income derived from house property under the Income Tax Act, 1961 abutting the assessee’s hotel. The appeal was dismissed as the matter was pending before the Supreme Court. The court Justice Rajiv Shakdher and Justice Girish Kathpalia held that if the appellant/revenue is to succeed in the said SLP, parties will abide by the decision rendered by the Supreme Court in these appeals as well. Income Tax Refund Not Received by Assesee Even After 2 Months: Delhi HC directs Revenue to Refund after Inquiry by CBDT PROGRESSIVE INFOTECH PRIVATE LIMITED vs UNION OF INDIA & ORS 2023 TAXSCAN (HC) 1437 The Delhi High Court in a recent case directed the Income Tax department to refund the amount which was not given to the assessee even after a delay of 2 months. The court was also directed to do as needed after an inquiry by the CBDT (Central Board of Direct Tax). “If this position is correct, certainly CBDT needs to inquire, as the determination qua AY 2021-22 was made as far back as 27.12.2022, whereas the determination about the refund qua AY 2020-21 was made on 08.02.2023, as the interest that has accrued in the meanwhile is a drain on the public exchequer.”, the division bench comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju observed. The Court directed the respondents/revenue to ensure that the refund amount is remitted to the petitioner within two (2) weeks. Bogus Purchase, Claim of Expense Denied without Corroborative Evidence: Delhi HC quashes Reassessment Order LUV IMPEX PRIVATE LIMITED vs INCOME TAX OFFICER WARD 15 (1) & ANR 2023 TAXSCAN (HC) 1439 The Delhi High Court quashed the reassessment as alleging a Bogus Purchase, the claim of expense denied without corroborative evidence. A division bench comprising Justice Rajiv Shakdher and Justice Anish Dayal viewed that the AO did not consider bank statements and tax invoices to be relevant evidence. It also appeared that the petitioner placed on record documents to demonstrate that the transactions had been made through a banking channel. “Despite these documents having been placed by the petitioner/assessee before the AO, the AO concluded that the petitioner had nothing to submit by way of a proper explanation regarding the transactions in issue. It was viewed by the court that if AO had material to demonstrate that the sellers were dubious or non-existent, that material/information should have been put to the petitioner.”, the Court held. The Court set aside the impugned order, with the liberty to AO to pass a fresh order. Relief to Amadeus IT Group: Delhi HC condones delay of 170 days in re-filing Income Tax Appeal COMMISSIONER OF INCOME TAX – INTERNATIONAL vs AMADEUS IT GROUP SA 2023 TAXSCAN (HC) 1438 The Delhi High Court condoned the delay of 170 days in re-filing the Income Tax Appeal by Amadeus IT group and disposed of the petition as there was no question of law to be considered. Since this aspect was not argued before the statutory authorities, a division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia dismissed the petition in the absence of a question of law. No provision in CETA or CEA which is akin to Section 149 of Income Tax Act: Delhi HC dismisses Appeal by Commissioner of Customs COMMISSIONER OF CUSTOMS vs M/S M.D. OVERSEAS 2023 TAXSCAN (HC) 1434 The Delhi High Court dismissed the appeal by the commissioner of customs as no provision in CETA or CEA which is akin to Section 149 of the Income Tax Act, 1961. All the relevant documents which could have been filed at the time of exports, were available as it is in original form and format without any change as such and were submitted along with the application for amendment of the shipping bills etc. on 14 March 2017. The respondents specifically stated in the application that no claim would be made by them under Paragraph (3) of the Relevant Notification. Resultantly, there was no reason to hold otherwise and nothing more was required to be done on the part of the respondents. Therefore, we find no legal infirmity, perversity or incorrect approach adopted by the learned CESTAT in passing the impugned orders dated 24 February 2020 thereby allowing the respondents the benefit of STR based on the exports made during the relevant period.”, the Court viewed while dismissing the appeal. Filing ITC Refund within Time prescribed u/s 54(1) of CGST Act: Delhi HC directs to Process Refund MAHALAXMI EXPORTS vs COMMISSIONER OF DELHI GOODS AND SERVICES TAX AND ANOTHER & ORS. 2023 TAXSCAN(HC) 1432 The Delhi High Court directed to process refund as Input Tax Credit (ITC) refund was filed within the time prescribed under Section 54(1) of the Central Goods and Service Tax Act, 2017. A Division Bench comprising Justices Vibhu Bakhru and Amit Mahajan observed that “The notification no. 13/2022-Central Tax dated 05.07.2022 expressly provides that the period commencing from the 1 st day of March, 2020 to 28th February, 2022, would be excluded, inter alia, for the purposes of filing the refund application under Section 54 or Section 55 of the CGST Act. Undisputedly, the petitioner’s application for refund was within the time limit as prescribed under Section 54(1) of the CGST Act, if the said period is excluded.” The Court further directed the respondents to process the petitioner’s refund application along with the applicable interest within a period of two weeks from today. Relief to Rolls Royce: Delhi HC quashes Form 3 issued under DTVSV Act to Re-calculate on basis of Counter Affidavit filed ROLLS ROYCE INDUSTRIAL POWER (INDIA) LIMITED vs CIT (IT) 2023 TAXSCAN (HC) 1433 In a recent ruling the Delhi High Court quashed Form 3 issued under Direct Tax Vivad Se Vishwas Act, 2020 (DTVSV Act) to re-calculate on the basis of the counter affidavit filed and thereby grating major relief to Rolls Royce industrial Power (India) Limited. A Division Bench comprising Justices Rajiv Shakdher and Girish Kathpalia observed that “Accordingly, as agreed by counsel, the impugned forms issued to the petitioner are set aside. Liberty is however, given to the respondents/revenue to rework the calculations on the basis of stand taken in the counter-affidavit and thereafter, issue fresh forms, as deemed fit. After fresh forms are issued, if still aggrieved, the petitioner will have liberty to assail the same in accordance with the law.” An interim direction requiring the petitioner to deposit a cumulative amount of Rs.7,33,15,591/- with the designated authority. The counsel for the petitioner submitted that this amount was deposited. Hence the Court directed that the said amount will be released to the petitioner within the next six (6) weeks. Obtaining Interim Order on Income Tax Proceedings through suppressions of material facts amount to Contempt of Court: Calcutta HC directs to pay 1.5 lakhs to WB Legal Services Authority AMBER COMMODEAL PRIVATE LIMITED vs INCOME TAX OFFICER 2023 TAXSCAN (HC) 1431 The Calcutta High Court directed to pay 1.5 lakhs to West Bengal (WB) Legal Services Authority and observed that suppression of material facts during income tax proceeding in obtaining interim order is contempt of the Court. A Single Bench of Justice Md Nizamuddin observed that “The act and conduct of the petitioner in suppressing the material fact and misleading the Court in obtaining the interim order even by not disclosing the aforesaid fact to his lawyer is highly depreciable and amounting to contempt of Court also. It is also the matter of record that the very same assessee petitioner has committed similar offence in respect of the earlier assessment year 2015-16 and had obtained an interim order and taking note of such conduct of the petitioner, the writ petition of the petitioner was dismissed with exemplary cost.” “This type of petitioner who dare to commits such offence before the highest Court of the State deserves to be prosecuted for repeatedly misleading and suppressing before the Court in obtaining the interim order. However, this Court is sparing him with a warning that in future if one more such type of case is found against him, he will be prosecuted and in this case he is spared from any prosecution on condition of making payment of costs of Rs. 1,50,000/- to the West Bengal State Legal Services Authority within a week from date and to file receipt of payment of the same before the Court on 3rd October, 2023” the Court noted. Availment of Fictitious Loan of Rs 40 lakhs: Delhi HC directs AO to furnish Relevant Material to Support Allegation RAKESH KUMAR MOHINDROO vs INCOME TAX OFFICER WARD 59(3) DELHI AND ANR 2023 TAXSCAN (HC) 1430 The Delhi High Court directed the Assessing Officer (AO) to furnish relevant material to support allegation in the matter of the availment of fictitious loan of Rs 40 lakhs. A Division Bench of Justices Rajiv Shakdher and Girish Kathpalia and observed that “Since the principal allegation levelled against the petitioner is that he had availed a fictitious loan of Rs.40,00,000/- from BKR, the AO will furnish the relevant material which will establish the said allegation. In case any fresh material is furnished, the petitioner will be given an opportunity to respond to the same.” 2 days time to file Response to Income Tax Notice: Delhi HC quashes Notice u/s 148A(d) of Income Tax Act SRIVENKATESHWAR TRADEX PRIVATE LIMITED vs PRINCIPAL COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1429 The Delhi High Court quashed notice issued under Section 148A(d) of the Income Tax Act, 1961 as there was only 2 days time to file response to the income tax notice. A Division Bench comprising Justices Rajiv Shakdher and Girish Kathpalia observed that “Therefore, we would be entering into an area of uncertainty if we were to accept that in this case, the two (2) days granted to the petitioner via the notice dated 27.03.2023 was sufficient. The statute, as indicated above, provides a specific timeframe and therefore, that leeway would have to be granted to the assessee. Having regard to the fact that the responses to notices form part of the impugned order dated 31.03.2023 passed under Section 148A(d) of the Income Tax Act, in our view, the best way forward would be to set aside the said order with liberty to the AO to pass a fresh order.” Consignee is Deemed Owner if Invoice or other Specified Document is Accompanying Goods: Allahabad HC Western Carrier India Ltd vs State Of U.P 2023 TAXSCAN (HC) 1425 The Allahabad High Court ruled that the consignee is deemed owner if the invoice or any other specified document is accompanying the goods. A Division Bench of Justices Ashwani Kumar Mishra and Syed Aftab Husain Rizvi observed that “It is hereby clarified that if the invoice or any other specified document is accompanying the consignment of goods, then either the consigner or the consignee should be deemed to be the owner. If the invoice or any other specified document is not accompanying the consignment of goods, then in such case, the proper officer should determine who should be declared as the owner of the goods.” “We are of the view that the department ought to have considered the petitioner’s prayer for release of goods and vehicle upon compliance of the provisions would include the power to set it aside. Annulment of the assessment order would lead to its cancellation. In other words, the assessment order would cease to exist, relegating parties to the position obtained before the order was passed.” Assessment of Income by NFAC without considering Deposited Amount: Kerala HC directs Income Tax Dept to dispose Appeal KC SANTHOSH vs ADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1441 The Kerala High Court directed the Income Tax Department to dispose of the appeal in relation the assessment of income by the National Faceless Assessment Centre (NFAC) without considering the deposited amount. A Single Bench of Justice Dinesh Kumar Singh observed that “Considering the facts and circumstances, the second respondent is directed to consider and dispose of the appeal in accordance with law, preferably within a period of three months. It is made clear that if Exhibit P2 appeal is not taken up for final hearing within three months as directed above, the second respondent should make every endeavour to decide the application for condonation of delay and also stay petition.” Income Tax Addition of 6 Crores on Income Derived From House Property Abutting Assessee’s Hotel: Delhi HC dismisses Appeal as matter Pending Before SC PR. COMMISSIONER OF INCOME TAX vs C J INTERNATIONAL HOTELS LTD 2023 TAXSCAN (HC) 1440 The Delhi High Court dismissed the appeal on the issue of an Income tax addition of 6 crores on income derived from house property under the Income Tax Act, 1961 abutting the assessee’s hotel. The appeal was dismissed as the matter was pending before the Supreme Court. The court Justice Rajiv Shakdher and Justice Girish Kathpalia held that if the appellant/revenue is to succeed in the said SLP, parties will abide by the decision rendered by the Supreme Court in these appeals as well. Income Tax Refund Not Received by Assesee Even After 2 Months: Delhi HC directs Revenue to Refund after Inquiry by CBDT PROGRESSIVE INFOTECH PRIVATE LIMITED vs UNION OF INDIA & ORS 2023 TAXSCAN (HC) 1437 The Delhi High Court in a recent case directed the Income Tax department to refund the amount which was not given to the assessee even after a delay of 2 months. The court was also directed to do as needed after an inquiry by the CBDT (Central Board of Direct Tax). “If this position is correct, certainly CBDT needs to inquire, as the determination qua AY 2021-22 was made as far back as 27.12.2022, whereas the determination about the refund qua AY 2020-21 was made on 08.02.2023, as the interest that has accrued in the meanwhile is a drain on the public exchequer.”, the division bench comprising Justice Rajiv Shakdher and Justice Tara Vitasta Ganju observed. The Court directed the respondents/revenue to ensure that the refund amount is remitted to the petitioner within two (2) weeks. Bogus Purchase, Claim of Expense Denied without Corroborative Evidence: Delhi HC quashes Reassessment Order LUV IMPEX PRIVATE LIMITED vs INCOME TAX OFFICER WARD 15 (1) & ANR 2023 TAXSCAN (HC) 1439 The Delhi High Court quashed the reassessment as alleging a Bogus Purchase, the claim of expense denied without corroborative evidence. A division bench comprising Justice Rajiv Shakdher and Justice Anish Dayal viewed that the AO did not consider bank statements and tax invoices to be relevant evidence. It also appeared that the petitioner placed on record documents to demonstrate that the transactions had been made through a banking channel. “Despite these documents having been placed by the petitioner/assessee before the AO, the AO concluded that the petitioner had nothing to submit by way of a proper explanation regarding the transactions in issue. It was viewed by the court that if AO had material to demonstrate that the sellers were dubious or non-existent, that material/information should have been put to the petitioner.”, the Court held. The Court set aside the impugned order, with the liberty to AO to pass a fresh order. Relief to Amadeus IT Group: Delhi HC condones delay of 170 days in re-filing Income Tax Appeal COMMISSIONER OF INCOME TAX – INTERNATIONAL vs AMADEUS IT GROUP SA 2023 TAXSCAN (HC) 1438 The Delhi High Court condoned the delay of 170 days in re-filing the Income Tax Appeal by Amadeus IT group and disposed of the petition as there was no question of law to be considered. Since this aspect was not argued before the statutory authorities, a division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia dismissed the petition in the absence of a question of law. No provision in CETA or CEA which is akin to Section 149 of Income Tax Act: Delhi HC dismisses Appeal by Commissioner of Customs COMMISSIONER OF CUSTOMS vs M/S M.D. OVERSEAS 2023 TAXSCAN (HC) 1434 The Delhi High Court dismissed the appeal by the commissioner of customs as no provision in CETA or CEA which is akin to Section 149 of the Income Tax Act, 1961. All the relevant documents which could have been filed at the time of exports, were available as it is in original form and format without any change as such and were submitted along with the application for amendment of the shipping bills etc. on 14 March 2017. The respondents specifically stated in the application that no claim would be made by them under Paragraph (3) of the Relevant Notification. Resultantly, there was no reason to hold otherwise and nothing more was required to be done on the part of the respondents. Therefore, we find no legal infirmity, perversity or incorrect approach adopted by the learned CESTAT in passing the impugned orders dated 24 February 2020 thereby allowing the respondents the benefit of STR based on the exports made during the relevant period.”, the Court viewed while dismissing the appeal. Filing ITC Refund within Time prescribed u/s 54(1) of CGST Act: Delhi HC directs to Process Refund MAHALAXMI EXPORTS vs COMMISSIONER OF DELHI GOODS AND SERVICES TAX AND ANOTHER & ORS. 2023 TAXSCAN (HC) 1432 The Delhi High Court directed to process refund as Input Tax Credit (ITC) refund was filed within the time prescribed under Section 54(1) of the Central Goods and Service Tax Act, 2017 A Division Bench comprising Justices Vibhu Bakhru and Amit Mahajan observed that “The notification no. 13/2022-Central Tax dated 05.07.2022 expressly provides that the period commencing from the 1 st day of March, 2020 to 28th February, 2022, would be excluded, inter alia, for the purposes of filing the refund application under Section 54 or Section 55 of the CGST Act. Undisputedly, the petitioner’s application for refund was within the time limit as prescribed under Section 54(1) of the CGST Act, if the said period is excluded.” The Court further directed the respondents to process the petitioner’s refund application along with the applicable interest within a period of two weeks from today. Relief to Rolls Royce: Delhi HC quashes Form 3 issued under DTVSV Act to Re-calculate on basis of Counter Affidavit filed ROLLS ROYCE INDUSTRIAL POWER (INDIA) LIMITED vs CIT (IT) 2023 TAXSCAN (HC) 1433 In a recent ruling the Delhi High Court quashed Form 3 issued under Direct Tax Vivad Se Vishwas Act, 2020 (DTVSV Act) to re-calculate on the basis of the counter affidavit filed and thereby grating major relief to Rolls Royce industrial Power (India) Limited. A Division Bench comprising Justices Rajiv Shakdher and Girish Kathpalia observed that “Accordingly, as agreed by counsel, the impugned forms issued to the petitioner are set aside. Liberty is however, given to the respondents/revenue to rework the calculations on the basis of stand taken in the counter-affidavit and thereafter, issue fresh forms, as deemed fit. After fresh forms are issued, if still aggrieved, the petitioner will have liberty to assail the same in accordance with the law.” An interim direction requiring the petitioner to deposit a cumulative amount of Rs.7,33,15,591/- with the designated authority. The counsel for the petitioner submitted that this amount was deposited. Hence the Court directed that the said amount will be released to the petitioner within the next six (6) weeks. Obtaining Interim Order on Income Tax Proceedings through suppressions of material facts amount to Contempt of Court: Calcutta HC directs to pay 1.5 lakhs to WB Legal Services Authority AMBER COMMODEAL PRIVATE LIMITED vs INCOME TAX OFFICER 2023 TAXSCAN (HC) 1431 The Calcutta High Court directed to pay 1.5 lakhs to West Bengal (WB) Legal Services Authority and observed that suppression of material facts during income tax proceeding in obtaining interim order is contempt of the Court. A Single Bench of Justice Md Nizamuddin observed that “The act and conduct of the petitioner in suppressing the material fact and misleading the Court in obtaining the interim order even by not disclosing the aforesaid fact to his lawyer is highly depreciable and amounting to contempt of Court also. It is also the matter of record that the very same assessee petitioner has committed similar offence in respect of the earlier assessment year 2015-16 and had obtained an interim order and taking note of such conduct of the petitioner, the writ petition of the petitioner was dismissed with exemplary cost.” “This type of petitioner who dare to commits such offence before the highest Court of the State deserves to be prosecuted for repeatedly misleading and suppressing before the Court in obtaining the interim order. However, this Court is sparing him with a warning that in future if one more such type of case is found against him, he will be prosecuted and in this case he is spared from anyprosecution on condition of making payment of costs of Rs. 1,50,000/- to the West Bengal State Legal Services Authority within a week from date and to file receipt of payment of the same before the Court on 3rd October, 2023” the Court noted. Availment of Fictitious Loan of Rs 40 lakhs: Delhi HC directs AO to furnish Relevant Material to Support Allegation RAKESH KUMAR MOHINDROO vs INCOME TAX OFFICER WARD 59(3) DELHI AND ANR 2023 TAXSCAN (HC) 1430 The Delhi High Court directed the Assessing Officer (AO) to furnish relevant material to support allegation in the matter of the availment of fictitious loan of Rs 40 lakhs. A Division Bench of Justices Rajiv Shakdher and Girish Kathpalia and observed that “Since the principal allegation levelled against the petitioner is that he had availed a fictitious loan of Rs.40,00,000/- from BKR, the AO will furnish the relevant material which will establish the said allegation. In case any fresh material is furnished, the petitioner will be given an opportunity to respond to the same.” 2 days time to file Response to Income Tax Notice: Delhi HC quashes Notice u/s 148A(d) of Income Tax Act SRIVENKATESHWAR TRADEX PRIVATE LIMITED vs PRINCIPAL COMMISSIONER OF INCOME TAX 2023 TAXSCAN (HC) 1429 The Delhi High Court quashed notice issued under Section 148A(d) of the Income Tax Act, 1961 as there was only 2 days time to file response to the income tax notice. A Division Bench comprising Justices Rajiv Shakdher and Girish Kathpalia observed that “Therefore, we would be entering into an area of uncertainty if we were to accept that in this case, the two (2) days granted to the petitioner via the notice dated 27.03.2023 was sufficient. The statute, as indicated above, provides a specific timeframe and therefore, that leeway would have to be granted to the assessee. Having regard to the fact that the responses to notices form part of the impugned order dated 31.03.2023 passed under Section 148A(d) of the Income Tax Act, in our view, the best way forward would be to set aside the said order with liberty to the AO to pass a fresh order.” Consignee is Deemed Owner if Invoice or other Specified Document is Accompanying Goods: Allahabad HC Western Carrier India Ltd vs State Of U.P 2023 TAXSCAN (HC) 1425 The Allahabad High Court ruled that the consignee is deemed owner if the invoice or any other specified document is accompanying the goods. A Division Bench of Justices Ashwani Kumar Mishra and Syed Aftab Husain Rizvi observed that “It is hereby clarified that if the invoice or any other specified document is accompanying the consignment of goods, then either the consigner or the consignee should be deemed to be the owner. If the invoice or any other specified document is not accompanying the consignment of goods, then in such case, the proper officer should determine who should be declared as the owner of the goods.” “We are of the view that the department ought to have considered the petitioner’s prayer for release of goods and vehicle upon compliance of the provisions Question of Limitation to be Computed from Date on which Date Rectification Order was passed: Kerala HC directs to file Appeal u/s 107of GST Act MOUNT VELOUR RUBBER WORKS (P) LTD vs ADDITIONAL COMMISSIONER CITATION: 2023 TAXSCAN (HC) 1608 The Kerala High Court directed to file appeal under Section 107 of the Goods and Service Tax Act (GST), 2017 and ruled that the question of limitation to be computed from the date on which date the rectification order was passed. A Single Bench of Justice Dinesh Kumar Singh observed that “In the above circumstances, the present writ petition is dismissed as withdrawn with liberty to the petitioner to file an appeal against the impugned rectification order under Section 107 of the GST Act, 2017. The appellate authority should consider the question of limitation with effect from 19.07.2023, on which date the rectification order came to be passed.” Gauhati HC allows Interim Stay on Coercive Measures on issue of Refund/Adjustment of Advance Tax paid to Income Tax Dept GREENLAM INDUSTRIES LIMITED vs DIRECTORATE GENERAL OF INCOME TAX (SYSTEMS) CITATION: 2023 TAXSCAN (HC) 1603 The Gauhati High Court has granted interim relief to the Writ Petitioner, Greenlam Industries Limited, from coercive measures on the issue of refund/adjustment of advance tax paid to the Income Tax Department. Notable, the question of maintainability of the writ petition was kept open and shall be decided at the stage of admission hearing, the bench stated while directing to list the matter on 17th November, 2023. Bail Application on PMLA Offence: Delhi HC Refuse to Grant Bail to Under Trial Prisoner SAMEER MAHANDRU vs DIRECTORATE OF ENFORCEMENT CITATION: 2023 TAXSCAN (HC) 1606 The Delhi High Court refused to grant bail to an under-trial Prisoner who submitted a bail application on the Prevention of Money-Laundering Act (PMLA) 2002. The petition was sought to extend the bail granted by thejudge. Justice Swarana Kanta Sharma viewed that there are no grounds to enlarge the applicant on regular bail in the present ECIR and disposed of the present bail application along with all pending applications. Administrative Circular will not operate as Fetter on Commissioner as it is Quasi Judicial Authority: Kerala HC dismisses Writ petition against Income Tax Order T.S. AJI vs INCOME TAX OFFICER CITATION: 2023 TAXSCAN (HC) 1605 The Kerala High Court observed that the administrative circular will not operate as a fetter on the commissioner as it is a quasi-judicial authority and dismissed the writ petition against the income tax order. With aforesaid observation, the single bench of Justice Dinesh Kumar Singh disposed of the present writ petition and dismissed the Pending interlocutory application/s, if any, in the writ petition. Claim of Income Tax Extinguishes with Post Approval of Resolution Plan by NCLT: Delhi HCMONNET ISPAT AND ENERGY LIMITED vs ASSISTANTCOMMISSIONER OF INCOME TAX, & ANR. CITATION: 2023 TAXSCAN (HC)1604 The Delhi High Court held that the claim of income tax is extinguished with post-approval of the resolution planby the National Company Law Tribunal (NCLT). A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia disposed of the writ petition in terms of the CIT(A) order. The interim order dated 24.12.2019 shall stand vacated and the pending interlocutory applications are closed. Madras HC directs Income Tax Dept to lift Attachment of Pension Account considering old Age of Pensioner G.K.Reddy vs The Deputy Commissioner of Income Tax CITATION: 2023 TAXSCAN (HC) 1602 The Madras High Court directs the income tax department to lift the attachment of the pension account considering the age and ailment of the Pensioner. The Court held that the appellant is entitled to operate the pension account and make all transactions with the amount lying therein, excluding a sum of Rs.1,35,000/- and the direction issued by the Judge in the order impugned was confirmed. Further directed the Appellate Commissioner to dispose of the appeals on merits and as per law, within three months. Challenge of SCN vires of Rule 31 A of CGST Rules: Sikkim HC stays SCN DELTA CORP LIMITED vs UNION OF INDIA CITATION: 2023 TAXSCAN (HC)1601 The Sikkim High Court stayed the show cause notice issued under Rule 31 A of the Central Goods and Service Tax Rules (CGST Rules), 2017 as it is ultra vires of the Constitution of India. The Deputy Solicitor General of India on behalf of respondent no.1 and the Additional Advocate General on behalf of respondent no.2 accept notice and waive formal notice thereof. Justice Bhaskar Raj Pradhan directed the respondents to file their response to the interim application praying for a stay of the proceedings within two weeks. The respondents shall maintain the status quo as of today. The counsel for the parties is requested not to delay the hearing of the interim application. Denial of Request for Hearing Via Video Conferencing: Delhi HC setsaside Assessment order under Income Tax Act KARUNA ABHUSHAN PRIVATE LIMITED vs ASSESSMENT UNIT CITATION: 2023 TAXSCAN (HC) 1598 The Delhi High Court set aside the assessment order passed under the Income Tax Act,1961 whereby the request of hearing via video conferencing was denied. The Court directed the Assessing Officer to decide afresh. A division bench comprising Justice Rajiv Shakdher and Justice Girish Kathpalia viewed that “the best way forward would be to set aside the impugned assessment order dated 18.05.2023 with liberty to the AO to pass a fresh order, albeit, as per law. The AO will have the liberty to pass a fresh assessment order after abiding by the principles of natural justice.” Kerala HC Orders Expedited Resolution of KGST Appeal & Stay Petition, Halts Enforcement of Demand Notice Citing Pending Adjudication MATHEW SCARIA vs DEPUTY COMMISSIONER OF STATE TAX CITATION: 2023 TAXSCAN (HC) 1597 The High Court of Kerala has issued a directive to expedite the resolution of the Kerala Goods and Services Tax (KGST) appeal and stay petition, thereby halting the enforcement of the demand notice against Mathew Scaria, the proprietor of Hotel Thushara International, Kodenchery, Kozhikode. The court’s directive has brought temporary relief to Mathew Scaria and his hotel business, as the enforcement of the demand notice has been put on hold. The ruling underscores the importance of expeditious consideration of appeals and stay applications, which is crucial in maintaining a fair and efficient tax adjudication process under the KGST system. Rejection of Refund Claim of ITC under GST: Delhi HC allows Refund based on Shipping Bill and Invoices STAR PUBLISHERS DISTRIBUTORS vs ASSISTANT COMMISSIONER OF CGST CITATION: 2023 TAXSCAN (HC) 1588 The Delhi High Court allowed the refund of Input Tax Credit (ITC) under Goods and Service Tax(GST) based on the shipping bill and invoices and set aside the rejection of the refund claim of ITC. Since there was no controversy as to the evidence produced by the petitioner in respect of the exports before the Adjudicating Authority, the court allowed the writ petition and the respondents were directed to process the petitioner’s claim for refund along with applicable interest. Kerala HC sets aside Demand of Balance Tax Deposit as Assessee already Remitted Amount u/s 55 of KVAT Act PYRAMID ARCHITECTS AND ENGINEERS vs STATE TAX OFFICER CITATION: 2023 TAXSCAN (HC) 1585 The Kerala High Court in a recent decision set aside the demand of balance tax deposit as assessee already remitted amount under section 55 of the Kerala Value Added Tax Act, 2023. A division bench comprising Justice A Muhamed Mustaque & Justice Shoba Annamma Eapen set aside the condition imposed by the third respondent to deposit 10% of the balance tax demand for both years if the petitioner had already remitted the amount under section 55 of the KVAT Act. Kerala High Court Extends Stay on Coercive Actions Citing Pending VAT Appeal before 1st Appellate Authority P. SOMARAJAN vs DEPUTY COMMISSIONER OF STATE TAX CITATION: 2023 TAXSCAN (HC) 1594 The High Court of Kerala has extended the stay on coercive actions against the assessee P. Somarajan, the proprietor of Hotel Nila Palace in Cheerankavu, Kollam. The extension of the stay comes in light of the pending Value Added Tax (VAT) appeal before the 1st Appellate Authority. The bench emphasised the importance of preserving the rights of individuals and business owners who may be subjected to coercive actions by government authorities while their legal appeals are pending. In result, the bench allowed the review petition filed by the petitioner and also extended the stay on coercive actions against the petitioner until November 30, 2023, due to the pending VAT appeal. Rectification application against Rejection of FTC Claim: Kerala HC directs to Consider Condonation Application for 234 Days Delay PADMANABHAN VISWANATHAN vs ASSISTANT DIRECTOR OF INCOME TAX CITATION: 2023 TAXSCAN (HC) 1581 The Kerala High Court directed to consider condonation application for 234-day delay in filing an appeal on rectification application against the Rejection of the Foreign Tax Credit (FTC) Claim. The single judge bench of Justice Dinesh Kumar Singh the appellate authority to consider the application for condonation of delay expeditiously, preferably within two months and if delay is condoned, the appellate authority should take up the stay application filed by the petitioner and dispose of the same expeditiously. Order passed by Adjudicating Authority can be appealed before Appellate Tribunal u/s 26 of PMLA: Delhi HC GOLD CROFT PROPERTIES PVT LTD vs DIRECTORATE OF ENFORCEMENT CITATION: 2023 TAXSCAN (HC) 1582 The Delhi High Court held that any order passed by the adjudicating authority can be appealed before an appellate tribunal under section 26 of the Prevention of Money Laundering Act, 2002 ( PMLA). The bench comprising Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad observed that “the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. Kerala HC allows to Discharge of Road Tax liability Instalment Payment SHAHUL HAMEED vs JOINT REGIONAL TRANSPORT OFFICER CITATION: 2023 TAXSCAN (HC) 1590 The Kerala High Court allowed the petitioner to discharge the road tax liability instalment payment as the petitioner prayed for the same. Shahul Hameed, the petitioner filed the petition with the limited prayer to allow him to discharge the tax liability for the period from 01.04.2022 to 30.09.2023 in respect of the stage carriage KL-54-E-2642 in instalments. It was further held that “If the petitioner fails to make payment of any of the instalments, the authorities would be free to take appropriate action for the realisation of the tax. “ Principal Commissioner has Revisional Power to Interfere Assessment order even if it is Pending Before CIT(A): Kerala HC dismisses Writ Petition M/S PRESTIGE MARKETING DIVISION vs PRINCIPAL COMMISSIONER OF INCOME TAX CITATION: 2023 TAXSCAN (HC) 1580 The Kerala High Court held that the principal commissioner has revisional power to interfere assessment order even if it is pending before CIT(A) and dismissed the Writ petition. The Single judge bench of Justice C.S. Dias held that “the first respondent has the revisional power to interfere with the assessment order as provided under Sec.263 of the Act, till the disposal of the appeal. Furthermore, I do not find any prejudice being caused to the petitioner because, if at all the petitioner is aggrieved by the order that is to be passed by the Assessing Officer, in compliance with the direction in Ext P5 order, the petitioner can very well challenge the said order also in an appeal, notwithstanding the pendency of the appeal filed against order.” The Court dismissed the writ petition, reserving the right of the petitioner to challenge the order by law. Section 264 can be Triggered for Making Corrections When Assesee Fails to Claim Amenable Deduction under Income Tax Act: Delhi HC PUNEET DHANDA vs PRINCIPAL COMMISSIONER OF INCOME TAX & ANR. CITATION: 2023 TAXSCAN (HC) 1576 The Delhi High Court held that Section 264 of the Income Tax Act, 1961 can be triggered for making corrections when the assessee fails to claim amenable deduction under the Income Tax Act, 1961. Further held that “since the petitioner/assessee passed away during the pendency of the writ petition, necessary steps were taken for bringing the legal heirs of record. Similar steps will also be taken by Mr Krishanan to bring his legal heirs on record before the concerned statutory authorities. set aside the impugned order.” Section 220(2) of Income Tax Act has no Retrospective Effect, Noliability to pay Interest on Tax Crystallised: Kerala HC CATHERINE THOMAS vs PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX CITATION: 2023 TAXSCAN (HC) 1573 The Kerala High Court has held that Section 220(2) of the Income Tax Act, 1961 has no retrospective effect and no liability to pay interest on tax crystallised. Smt.Nisha John, counsel appeared for the petitioner and Sri. Christopher Abraham, Standing Counsel appeared for the Income Tax Department. As the Finance Act itself makes it clear it has come into effect from 01.10.2014 and therefore, by no stretch of imagination its operation cannot be said to be retrospective. Considering the said position of law, the court comprising Justice Dinesh Kumar Singh held that the petitioner cannot be held to default in making the payment of tax which was crystallized by order. Therefore, Section 220(2) would not empower the Department to levy interest on the tax assessed which has already been paid. Question of Limitation to be Computed from Date on which DateRectification Order was passed: Kerala HC directs to file Appeal u/s 107of GST Act MOUNT VELOUR RUBBER WORKS (P) LTD vs ADDITIONAL COMMISSIONER CITATION: 2023 TAXSCAN (HC) 1608 The Kerala High Court directed to file appeal under Section 107 of the Goods and Service Tax Act (GST), 2017 and ruled that the question of limitation to be computed from the date on which date the rectification order was passed. A Single Bench of Justice Dinesh Kumar Singh observed that “In the above circumstances, the present writ petition is dismissed as withdrawn with liberty to the petitioner to file an appeal against the impugned rectification order under Section 107 of the GST Act, 2017. The appellate authority should consider the question of limitation with effect from 19.07.2023, on which date the rectification order came to be passed.” Gauhati HC allows Interim Stay on Coercive Measures on issue ofRefund/Adjustment of Advance Tax paid to Income Tax Dept GREENLAM INDUSTRIES LIMITED vs DIRECTORATE GENERAL OF INCOME TAX (SYSTEMS) CITATION: 2023 TAXSCAN (HC) 1603 The Gauhati High Court has granted interim relief to the Writ Petitioner, Greenlam Industries Limited, from coercive measures on the issue of refund/adjustment of advance tax paid to the Income Tax Department. Notable, the question of maintainability of the writ petition was kept open and shall be decided at the stage of admission hearing, the bench stated while directing to list the matter on 17th November, 2023. Bail Application on PMLA Offence: Delhi HC Refuse to Grant Bail to Under Trial Prisoner SAMEER MAHANDRU vs DIRECTORATE OF ENFORCEMENT CITATION: 2023 TAXSCAN (HC) 1606 The Delhi High Court refused to grant bail to an under-trial Prisoner who submitted a bail application on the Prevention of Money-Laundering Act (PMLA) 2002. The petition was sought to extend the bail granted by thejudge. Justice Swarana Kanta Sharma viewed that there are no grounds to enlarge the applicant on regular bail in the present ECIR and disposed of the present bail application along with all pending applications.

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