May 2019 ERNAKULAM BRANCHkochiicai.org/assets/uploads/file-19.pdf · Ernakulam Branch of SIRC of ICAI 3 BRANCH ACTIVITIES – March 2019 3 FOR MEMBERS CPE SEMINARS / MEETINGS / CONFERENCES

NEWSLETTER

ERNAKULAM BRANCH OF SIRC OF THE INSTITUTE Of CHARTERED ACCOUNTANTS OF INDIA

May 2019

Issue No: 97Vol: III

INSIDEChairman’s MessageBranch ActivityJudicial Decisions on Direct TaxesJudicial Decisions on Indirect Taxes

CA. Jay Chhaira, Chairman, Committee on Professional Development & NPO inaugurating the Residential Refresher Course at Lake Palace Backwater Resort, Alleppey

Delegates of the Residential Refresher Course at Lake Palace Backwater Resort, Alleppey

February 2019NEWSLETTER

2 Ernakulam Branch of SIRC of ICAI

Chairman’s Message

Chairman’s Message

One more busy month and a busy bank audit season has passed. I am sure most of the members will be slightly relaxed and I hope that you would have found some time to take a break and go for a vacation. We at ICAI Ernakulam conducted a Three Day Residential Refresher Course at Lake Palace Backwater Re-sort, Alleppey. Nearly 25 families joined us for the RRC. It was a great chance for the members to share some good moments with their families and professional colleagues. We had some excel-lent technical sessions for the members to update themselves, while we also had houseboat cruise and an evening filled with fun, entertainment and laughter. I thank all the participants of the RRC for making the programme a grand success. I also thank my colleagues in the managing committee and the staff team of Ernakulam Branch for coordinating the programme and making all the arrangements.

We are now looking forward to a busy season with the due date for filing of GST Annual Return approaching, followed by the due date for filing Income Tax Returns for non-corporate assesses not coming under the ambit of tax audit and audit under Com-panies Act. Understanding the need of the members, we have scheduled a one day CPE seminar for members on Audit under Companies Act on May 17, 2019 followed by a two-day national seminar on GST under the aegis of the Indirect Taxes Commit-tee of ICAI on May 31 and June 01, 2019. On May 25, 2019 we will also be conducting an evening CPE seminar on GST Annu-al Return and Overview of GST Audit by CA. Ganesh Prabhu, Chennai. I request all members to attend these programmes and update themselves.

The certificate course on preparation of appeals, drafting of deeds & documents and representation before appellate author-ities and statutory bodies is underway. The course was inaugu-rated by our Past President CA. R.Bupathy. The course will con-clude on May 26, 2019. So far we have received good feedback about the classes.

On Apr 24th 2019 the Branch organised a “CA Awareness Pro-gramme” at YMCA Ernakulam, which was attended by more than 300 students and parents. The programme was huge success and was well appreciated. We commenced the CA Foundation (Nov 2019) batch on Apr 29, 2019 which is being presently at-tended by almost 100 students. The intensive revision classes for both final and intermediate for the May 2019 attempt has just concluded. The regular classes for the next exams and the man-datory courses will also be announced soon.

Our CSR activities are also going on in full swing. This month we will be donating sewing machines to needy people who lost their sewing machines, which was their basic source of liveli-hood, during the floods. In the month of June at the time of school re-opening, we will be providing note books, school bags and other basic essentials to poor and needy children.

The triennial orientation programme for members of the Man-aging Committees of branches and Regional Council was con-ducted by SIRC under the leadership of Chairman of SIRC, CA. Jomon K George on May 7th and 8th, 2019 at Hotel Le’ Meridian, Kochi. Central Council members from the southern region, mem-

bers of the Southern Indian Regional Council (SIRC) and Manag-ing Committee members from 45 branches spread across South India attended the programme in Kochi. All the participants were enriched with insights in to the functioning of ICAI and were also advised how the branches of ICAI should function. Ernakulam Branch was appreciated for all its good work, especially for being prompt in responding to requests for submission of comments and suggestions to exposure drafts to Head Office. During the last month we have submitted our comments / suggestions to Exposure Draft on Accounting Standard (IND AS) 34 on Inter-im Financial Reporting and Accounting Standard (IND AS) 17 on Leases. We have also submitted our suggestions for pre-budget memorandum on Direct and Indirect taxes. I take this opportunity to express our gratitude to our members, CA. Jobby George, CA. Rahul Joseph and CA. Rosilina who provided their comments to the branch and to CA. Salim A and CA. Allen Joseph for coordi-nating and finalising the comments sent to IASB. I also thank CA. P.T.Joy, Immediate Past Chairman and CA. Lukose Joseph, Past Chairman who helped us to gather and collate suggestions from various members for the pre-budget memorandum on direct and indirect taxes, which we have submitted to the respective central committees of ICAI.

In order to reach out to the members in a better and faster way, we have started broadcasting messages to members over social media apps, ‘WhatsApp’ and ‘Telegram’. Please note our number 8301025388 and save it to your devise, so that you are able to receive our messages. We are also in the process of updating the triennial members directory of Ernakulam Branch. I hope you would have received our mass email in this regard. Kindly update your profile and contact details at the earliest. The updated data as on June 10, 2019 will be considered as final and will be for-warded for designing and printing. So we humbly request you to update the same well before June 10, 2019.

We, the entire Managing Committee of Ernakulam Branch ex-press our gratitude to all the members and students for the sup-port and encouragement that you have been providing. We need more of it to march ahead and do our best at your service.

Jai Hind! Jai ICAI!

CA.Sreenivasan P.R

Chairman

Ernakulam Branch of SIRC of ICAI

May 2019NEWSLETTER

3Ernakulam Branch of SIRC of ICAI

BRANCH ACTIVITIES – March 2019

3

FOR MEMBERS

CPE SEMINARS / MEETINGS / CONFERENCES / WORKSHOPS / LIVE WEBCAST

The branch has conducted a Three-day Residential Re-fresher Course (RRC) on 26th April – 28th April, 2019 at Lake Palace Backwater Resort, Alleppey. The residential refresher course was organized by the Committee on Pro-fessional Development & NPO of ICAI.

On the 1st day of the course the topics deliberated were on “Use of technology for professionals and UDIN compli-ance” and “Audit of private limited companies – issues and compliance under recent changes in audit report”. The sessions were chaired by CA. P.T. Joy and CA. M.C. Jo-seph and the speakers were CA. Dungar Chand U Jain, Madurai and CA. Pramod Jain respectively.

On the second day CA. Yathavakila V.V. Sivaram Prasad chaired the session on “Cash transactions under Income Tax Act and black money (Undisclosed Foreign Income & Assets) and Imposition of Tax Act, 2015” and CA. Satish Kumar Gupta, Jaipur handled the session. The other ses-sion of the day on the topic “Innovate or evaporate” was taken by CA. Jay Chhaira and CA. P.R. Krishnakumar chaired the session. One of the unique feature of the refresher course was that on the 2nd day, the conference was on a fully air conditioned House Boat with a confer-ence hall of 350+ seating capacity, Audio Video Presenta-tion facilities, Public Address system and modern lighting system. First in the history of the branch that a conference is arranged in a house boat with these unique features.

“Accounting and Auditing Standards – an update” and “Important aspects in record keeping and documentation under GST” were the topics deliberated on the third day of the refresher course. CA. Jomon K George and CA. V. Shankara Narayanan took the session and the session was chaired by CA. K.P.Paulson and CA. Balagopal Ra-mamohan. Around 25 families joined for the RRC.

POST QUALIFICATION DIPLOMA IN INTERNATIONAL TAXATION

The physical session on “Queries on International Taxa-tion and Transfer Pricing” was organized at the branch on 27th April, 2019 in connection with the Post Qualification Diploma in International Taxation through virtual learning. CA. Pankaj Sancheti, PWC, Chennai took the concluding session of the batch.

EXPOSURE DRAFT COMMENTS SUBMITTED

Comments on “Revised Guidance Note on Division 1 – Non Ind AS Schedule III to the Companies Act, 2013” was submitted to Corporate Law and Corporate Governance Committee of ICAI on 26th April, 2019.

OTHER BRANCH ACTIVITIES – MEMBERS

Vishu sadhya was arranged at the branch on 16-04-2019. Managing committee members along with staff members of the branch enjoyed the lunch.

253rd meeting of the Accounting Standards Board of ICAI was held through Video Conferencing at the branch from 25th April to 26th April, 2019. CA. Vinod Balachandran attended the conference representing the Ernakulam Branch .

OTHER BRANCH ACTIVITIES – STUDENTS

CA Awareness programme was organized by the branch on 24th April, 2019 at YMCA, Chittoor Road, Ernakulam. CA. Venugopal C Govind, Senior Chartered Accountant, inaugurated the CA Awareness Programme for Plus Two/ Degree students and their parents.

CA. Sreenivasan P.R, Chairman, Ernakulam Branch of SIRC of ICAI welcomed the gathering. CA. Venugopal C Govind delivered the keynote address on “Commerce & Accountancy Profession – Relevance and Scope”. CA Babu Abraham Kallivaylil, Central Council Member of ICAI in his special address emphasized on all matters about ICAI and Board of Studies activities. CA. Jomon K George, Chairman, Southern India Regional Council (SIRC) of ICAI took the technical session on “Overview of CA Curriculum – Foundation, Intermediate and Final”. Adv. (CA.) Sherry Samuel Oommen took a motivational session. CA. Roy Varghese, Vice Chairman of the Er-nakulam Branch proposed vote of thanks.

The programme was well attended by more than 300 par-ticipants of plus two / degree students and their parents.

Foundation course coaching class for the November, 2019 examination commenced at the branch on 29th April, 2019. CA. Jomon K George, Chairman, SIRC of ICAI inaugurated the batch. CA. Sreenivasan P.R, Chair-man welcomed the gathering and CA. Roy Varghese, Vice Chairman proposed vote of thanks.

Intra branch cricket tournament was organized for the stu-dents on 13th and 14th April, 2019 at Thripunithura Crick-et Club (TCC) ground , Thripunithura. 12 team played the match.

Mock Tests for students:-

Mock Test Series-II was conducted for Foundation, In-termediate and Final (New Course) / IIPC & Final (Old Course) for May 2019 Examination.

• Mock test for foundation was conducted on 16th April, 2019. 4 students appeared for the same.

• For Intermediate and IIPC mock tests were conducted from 18th April to 27th April. 58 and 30 students respec-tively appeared for the tests.

May 2019NEWSLETTER

4 Ernakulam Branch of SIRC of ICAIErnakulam Branch of SIRC of ICAI

Reported Judicial DecisionsCA.P.M Veeramani FCA

Direct Tax

Statute: Black Money Act -Sec.50-Disclosure of assets in revised returnDecision in favour of : Assessee

Title : Srinidhi Karti Chidambaram & Others vs Principal CIT

Citation: 172 DTR 113Bench: Madras HC

A return of income has many schedules and all the schedules are part of the return of income. Offence under section 50 of Black Money Act is made only if, in the return of income filed under 139(1), (4) or (5) , there has been a willful failure to disclose any informa-tion relating to foreign asset. In the present case, the asset is disclosed in schedule FA in one case in the original return and in other cases in the revised return. Hence, offence under section 50 is not made out and consequently complaints filed are quashed.

Statute: Income Tax Act – Sec.2(22)(e ) – Inter com-pany loansDecision in favour of : AssesseeTitle : Saamag Developers Private Ltd vs ACIT

Citation: 173 ITD 350Bench: ITAT Delhi

Where addition was made to income of assesse com-pany under deemed dividend, in respect of amounts received from various group companies, in view of the fact that assesse and other group companies were taking money from each other and utilizing the same for business purposes only and no amount has gone to the share holder, the same could not be considered as deemed dividend

Statute: Income Tax Act – Sec.10(23C)(iiiad) – Reg-istration under 12AADecision in favour of : Assessee

Title :CIT (Exemptions) vs Shanti Devi Educational Trust

Citation: 409 ITR 522Bench: Punjab & Haryana HC

Registration of trust under section 12AA is not manda-tory to claim exemption under section 10(23C)(iiiad) which is available to any educational institution if the

aggregate annual receipt did not exceed the amount prescribed

Statute: Income Tax Act – Sec.10(37) – Interest on enhanced compensationDecision in favour of : Assessee

Title : ITO vs Vanayak Hari Palled

Citation: 173 ITD 399Bench: ITAT Bangalore

Interest on enhanced compensation for acquisition of agricultural land under section 28 of Acquisition Act would partake character of compensation and would be eligible for exemption under section 10(37)

Statute: Income Tax Act – Sec.12AA(2) – Deemed registrationDecision in favour of : Assessee

Title : CIT vs TBI Education Trust

Citation: 172 DTR 347Bench: Kerala HC

Limitation as provided under section 12AA(2) being a mandatory provision, failure to comply with the same would result in there being a deeming registration un-der the Act when there is a failure to dispose the ap-plication for registration within the specified time limit. The registration is however applicable only from the date of expiry of the six months from the date of appli-cation

Statute: Income Tax Act – Sec.22 – Rent for Mobile TowerDecision in favour of : AssesseeTitle : Kohinoor Industrial Premises Co-operative

Society Ltd vs ITO

Citation: 68 ITR Trib SN 90Bench: ITAT Mumbai

Terrace of the building is part of house property. There-fore, letting out space on the terrace of the house prop-erty for installation and operation of mobile tower and antennae was to be treated as income from house property and not as income from other sources. The

May 2019NEWSLETTER


assesse has not provided any other service or facility to the cellular operator apart from letting out terrace.

Statute: Income Tax Act – Sec.37 – Interest on de-layed payment of VAT/TDSDecision in favour of : AssesseeTitle : ITO vs Lakshdweep Development Corpora-

tion Ltd

Citation: 68 ITR Trib 333Bench: ITAT Cochin

Interest on delayed payment of VAT and TDS was only compensatory and not penal in nature. Therefore, CIT(A) has correctly deleted the disallowance

Statute: Income Tax Act – Sec.47A(3) – Firm suc-ceeded by companyDecision in favour of : Revenue

Title : CIT vs Prakash Electric Company

Citation: 172 DTR 377Bench: Karnataka HC

Condition in clause (b) of Section 47(xiii) has not pre-scribed the fixed time limit for the allotment of equity shares in favour of the partners of the erstwhile firm whose business is succeeded by the company, but al-lotment of shares of successor company to erstwhile partners should made before the end of the previous year in which the succession took place. Successor company having allotted shares to partners of suc-ceeded firm in a phased manner over a period of three and half years, condition of section 47(xiii)(b) cannot be said to have been complied with and successor company became liable for capital gains by applica-tion of section 47A(3).

Statute: Income Tax Act – Sec.48 – Indexation ben-efitsDecision in favour of : AssesseeTitle : Bhojison Infrastructure Private Ltd vs ITO

Citation: 172 DTR Trib 281Bench: ITAT Ahmedabad

Once the cost of acquisition has been determined with reference to the balance sheet where the land was reflected for several years and the land sold by the assesse has been found to be a long term capital asset, indexation benefits could not be denied simply because old document in respect of land could not be produced.

Statute: Income Tax Act – Sec.71(3) – Set off at the option of assesseeDecision in favour of : Assessee

Title : Ajay Kumar Singhania vs DCIT

Citation: 173 ITD 474Bench: ITAT Chandigarh

As per the provisions of section 71, there is an option to assesse to set off current year business loss against the capital gains of current year. However it is not man-datory to do so. Revenue directed to accept the re-turn where assesse set off capital gains of current year against brought forward capital loss .

Statute: Income Tax Act – Sec.147 – Taxing of other incomeDecision in favour of : AssesseeTitle : Tractors and Farm Equipment Ltd vs ACIT

Citation: 409 ITR 369Bench: Madras HC

Explanation 3 to section 147 was inserted by the Fi-nance (No. 2) Act of 2009. The effect of the Explana-tion is that once an Assessing Officer has formed a reason to believe that income chargeable to tax has escaped assessment and has proceeded to issue a notice under section 148 , it is open to him to assess or reassess income in respect of any other issue though the reasons for such issue had not been included in the reasons recorded under section 148(2) . However, Explanation 3 does not and cannot override the neces-sity of fulfilling the conditions set out in the substantive part of section 147 . An Explanation to a statutory pro-vision is intended to explain its contents and cannot be construed to override it or render the substance and core nugatory. Section 147 has this effect that the As-sessing Officer has to assess or reassess the income (“such income”) which escaped assessment and which was the basis of the formation of belief and if he does so, he can also assess or reassess any other income which has escaped assessment and which comes to his notice during the course of the proceedings. How-ever, if after issuing a notice under section 148 , he accepts the contention of the assessee and holds that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to assess some other income. If he in-tends to do so, a fresh notice under section 148 would be necessary, the legality of which would be tested in the event of a challenge by the assessee.

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Statute: Income Tax Act-Sec.194A(3)-Co-opera-tive societyDecision in favour of : AssesseeTitle : Virudhanagar District Central Co-opera-

tive Bank Ltd vs ITO

Citation: 172 DTR Trib SB 169Bench: ITAT Chennai special bench

A co-operative society carrying on banking business with the approval of Reserve Bank of India, is not liable to deduct under section 194A on interest paid to its members up to 1.6.2015. The amendment with effect form 1.6.2015 is prospective and the appellant cannot escape liability from TDS after the said date

Statute: Income Tax Act – Sec.194H – Trade Dis-count Decision in favour of : Assessee

Title : CIT vs OCM India Ltd

Citation: 172 DTR 369Bench: Punjab & Haryana HC

AO was not justified in applying the provisions of section 194H read with its explanation to the trade discount allowed by the assesse to its buyers/cus-tomers/direct trade dealers without involvement of any inter mediator / commission agents

Statute: Income Tax Act-Sec.263 - FC Loss & Prior Period expenseDecision in favour of : Assessee

Title : Harman Connected Services Corporation India Ltd vs PCIT

Citation: 68 ITR Trib SN 87Bench: ITAT Bangalore

Since there is no provision under section 115JB for ad-dition of “foreign exchange loss “ or “prior period ex-penditure” , such disallowances or additions were not tenable under the law and the Commissioner could not issue directions to make additions or disallowances which not allowed under the law

Statute: Income Tax Act-Sec.263-Proceedings does not abateDecision in favour of : Assessee

Title : Sasikala Raghupathy vs ACITCitation: 68 ITR Trib 248Bench: ITAT Chennai

Commissioner after issuing notice under section 263 passed on the same to the AO who had jurisdiction un-der section 153A. This action was not appropriate. Pro-ceedings which are to be completed under section 263 cannot be passed on to be completed under section 153A because proceeding under section 263 cannot abate in such situation.

Two Day National Conference on GST

Organised by: Indirect Taxes Committee of ICAI

on 31st May & 1st June 2019( Friday & Saturday)

at IMA Housebehind Jawaharlal Nehru International Stadium,

Kaloor, Ernakulam

CPE Credit:

12 Hours

Fees:Ernakulam ARS 2019-2020 : NilOthers CA’s: Rs. 2000/-Non Members : Rs. 2500/-

Day 1Technical Session 1 : Practical issues in GST Annual Return, Maintenance of Records and Finalisation of AccountsCA. Shaikh Abdul Samad Ahmad, ChennaiTechnical Session 2 : Taxability of receipts of Charita-ble Institutions under GSTCA. Rajendra Kumar P, ChennaiTechnical Session 3 : GST Audit process, Checklist, Reconciliation and DocumentationCA. Bimal Jain, New Delhi

Hosted by : Ernakulam Branch of SIRC of ICAI

Day 2Technical Session 4 : GST on real Estate and Works ContractCA Ashok Batra, New DelhiTechnical Session 5 : Latest amendments in GST- law, notifications, circulars and ordersCA. J. Purushothaman, Chennai

May 2019NEWSLETTER


JUDICIAL DECISIONS ON INDIRECT TAXESIndirect Tax

CA.P.J.Johney FCA

Statute: Service TaxDecision in favour of: Department

Title:National Building Construction Company Limited v.

Union Of India And Others

Sanjiv Khanna And Ms. Prathiba M. Singh JJ. November 16, 2018.

Citation:[2019] 62 GSTR 166 (Delhi)Bench/Court: In The Delhi High Court

Service Tax – Central Excise Officers – Jurisdiction – Assessee Engaged In Carrying Out Civil Work And Construction – Having 88 Service Tax Registrations For Different States – Officers of DGCEI Have All India Jurisdiction And Can Issue Notices And En-quire Into Matters Relating To Service Tax Against Assessee – Notice Under Section 14 Of Central Ex-cise Act – Can Be Issued Even If Proceedings Un-der Section 73 Not Pending – Assessee To Comply With Notices By Central Excise Officers, DGCEI To Furnish Evidence And Documents Pertaining To Pro-ject Management Consultancy Charge In Respect Of Commissionerate/Registration – Finance Act (32 Of 1994), S. 73 – Central Excise Act (1 Of 1944), S. 14

Service Tax – Central Excise Officer – Power To Is-sue Summons Or Notices – Power To Conduct Spe-cial Audit – Power To Visit Registered Premises – Ex-plained – Finance Act (32 Of 1994), S. 72A – Service Tax Rules, 1994, R.5A – Central Excise Act (1 Of 1944). S.14

Statute: Goods And Services TaxDecision in favour of: Department

Title:Sheen Golden Jewels (India) Pvt.Ltd. v.

State Tax Officer (IB)-1, Investigation Breach, Thiru-vananthapuram and Others (and other cases)

Dama Seshadri Naidu J.January 11, 2019.

Citation:[2019] 62 GSTR 207 (Ker)Bench/Court: In The Kerala High Court

Goods And Services Tax – Legislative Powers – Val-ue Added Tax – Repeal And Re-Enactment – Con-stitution Amendment Act Empowering State Legisla-ture To Enact Goods And Services Tax Act Amending Or Repealing Within One Year Inconsistent Existing Laws – Introduction Of Goods And Services Tax Act By State Legislature After One Year With Its Own Saving Clause For Past Transactions Under Value Added Tax Act – Saving Clause Valid Being Not In-consistent With Constitutions Amendment Act – Ker-ala State Goods And Services Tax Act (20 Of 2017),

S. 174 – Kerala Value Added Tax Act, 2003 (30 Of 2003) – General Clauses Act (10 Of 1897), SS. 6, 24 – Constitution (One Hundred And First Amendment) Act, 2016, SS. 2,19 – Constitution Of India, Arts. 246, 246A, 367; Sch. VII, List II, Entry 54.

Constitution – Amendment – Prospective Unless Ex-pressly Or Necessary Implication Made Retrospec-tive.

Construction Of Taxing Statutes – Presumption Of Constitutionality.

Legislative Powers – State Legislature – Parliament – Repugnancy Arises Only When Both Laws Enacted On Same Entry.

Constitution – Interpretation Of Entries In Lists – Schematic Examination Of Entire Constitution Es-sential.

Construction Of Taxing Statutes – Temporary Act.

Construction Of Taxing Statutes – Mere Expiry Of Statute Does No Make Statute Dead For All Purpos-es Even In Absence Of A Saving Clause.

Construction Of Taxing Statutes – Repeal Or Dele-tion – Operation As To Future And Fast Largely De-pends On Savings Applicable.

Construction Of Taxing Statutes – Partial Repeal Or Total Repeal – Distinction.

Construction Of Taxing Statutes – Repeal – Effect.

Statute: Goods And Services TaxDecision in favour of:Assessee

Title:H. M. Industrial Pvt. Ltd. v.

Commissioner, CGST And Central Excise Ms. Harsha Devani And Dr. A.P. Thaker JJ.

February 7, 2019.

Citation:[2019] 62 GSTR 279 (GujBench/Court:In The Gujarat High Court

Goods And Services Tax – Recovery Of Tax – Com-pany – Directors Of – ‘Taxable Person’ – Definition- Tax Arrears From Private Company – Directors Of Company Not Liable To Pay Such Amount – Direction To Release Attachment Of Bank Accounts Of Direc-tors Of Company – Central Goods And Services Tax Act (12 Of 2017), SS. 2(107), 83.

Statute: Goods And Services TaxDecision in favour of: Assessee

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Title:Palak Designer Diamond Jewellery v.

Union Of India

Ms. Harsha Devani And Dr. A.P. Thaker JJ.January 29, 2019.

Citation:[2019] 62 GSTR 282 (Guj)Bench/Court:In The Gujarat High Court

Goods And Services Tax – Seizure – Assessee Man-ufacturing Jewellery From Gold, Diamond And Pre-cious Metals On Its Own Account As Well As On Job-Work Basis – Search Conducted At Premises Of Assessee And Seizure Orders Dated January 11/12, 2018 And March 14/15, 2018 Passed – Value Of Seized Goods Determined And Sealed – Request By Petitioner To Provisionally Release Goods As Ap-propriate Amount Of Tax Paid Along With Penalty – Authority Extending Period Of Seizure For Further Period Of Six Months – Special Civil Application – On Facts Direction To Provisionally Release Seized Goods Upon Petitioner Executing Bond For Total Val-ue Of Seized Goods, And Furnishing Bank Guaran-tee Of Rs. 50 Lakhs – Central Goods And Services Tax Act (12 Of 2017), SS. 67(2), (6), (7), 74(5) – Cen-tral Goods And Services Tax Rules, 2017, R. 140. Statute: Service TaxDecision in favour of:Assessee

Title:JSW Salav (Steel) Ltd. v.

Commissioner Of Central Excise, Customs And Service Tax, Raigad

C.J. Mathew (Technical Member) AndAjay Sharma (Judicial Member)

January 11, 2019.

Citation:[2019] 62 GSTR 293 (CESTAT-Mum)Bench/Court:Before The Customs, Excise And Ser-vice Tax Appellate Tribunal — Mumbai

Service Tax - Liability To Pay Tax – Recipient Of Ser-vice – When Can Be Taxed – Recipient Of Intellectu-al Property Service – Assessee Receiving Services Of Foreign Entity – No Mention In Notice Of Order As To Nature Of ‘Intellectual Property’ And Its Taxability – Levy Of Tax Without Ascertaining Of Consideration For Taxable Service – Not Sustainable – Finance Act (32 Of 1994), SS. 65(55a), (55b), (105)(zzr), 66A – Taxation Of Services (Provided From Outside India And Received In India) Rules, 2006, R.3 – Circular No. 16/7/2007, Dated August 23, 2007.

Statute: Service TaxDecision in favour of:Assessee

Title:Morgan Construction Co. (India) Pvt. Ltd. v.Commissioner Of Service Tax – II, Mumbai


January 17, 2019.

Citation:[2019] 62 GSTR 298 (CESTAT-Mum)Bench/Court: Before The Customs, Excise And Ser-

vice Tax Appellate Tribunal — Mumbai

Service Tax – Taxable Value – Import Of Services – No Legal Mechanism For Alternate Computation During Period In Dispute – Exchange Rate At Which Payment Was Remitted To Overseas Entity Alone To Be Applied – Demand Of Tax On Differential Rate Of Exchange Not Sustainable – Finance Act (32 Of 1994), S. 67A.

Service Tax – Charge Of Tax – Import Of Services – Intellectual Property Service – ‘Deemed Provider Of Service’ – Deeming Of Liability Could Not Be Extend-ed To Legality Of Ownership Of Intellectual Property – Finance Act (32 Of 1994), S. 65(105)(zzr) – Taxa-tion Of Services (Provided From Outside India And Received In India) Rules, 2006.


Title:LNV Technology Pvt. Ltd. v.

Commissioner Of Service Tax, Chennai

Smt. Sulekha Beevi C.S. (Judicial Member) AndMadhu Mohan Damodhar (Technical Member)

December 4, 2018.

Citation:[2019] 62 GSTR 303 (CESTAT-Chennai) Bench/Court: Before The Customs, Excise And Ser-vice Tax Appellate Tribunal — Chennai

Service Tax – Works Contract Service – Appellants Engaged In Business Of Design, Drawing, Manufac-ture And Supply Of Plant An Machineries For Cement Plant, Coal Grinding And Mineral Processing Goods, Etc. – Also Engaged In Supervision Of Erection And Commissioning Of Such Plant And Machineries – Perusal Of Work Orders With Different Parties Show-ing Work Undertaken Design, Engineering, Docu-mentation, Manufacture And Supply Of Equipment/Machinery And Design Involved In Erection And Commissioning Of Such Machinery – No Mention Of Period For Performance Of Service Or Period By Which Erection And Commissioning Be Executed – Terms Of Payment Not Speaking About Performance Of Erection And Commissioning – Supervision Of Erection And Commissioning Cannot Be Equated With Civil Work Of Erection And Commissioning Or Installation Of Plant And Machinery – Levy Of Ser-vice Tax Under Works Contract Service Not Attracted – Finance Act (32 Of 1994), S. 65(105)(zzzza).


Title:Ranjana S. Nargolkar

v.Commissioner Of Central Excise, Pune - II


December 17, 2018.

Citation:[2019] 62 GSTR 310 (CESTAT-Mum)Bench/Court: Before The Customs, Excise And Ser-

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vice Tax Appellate Tribunal — MumbaiService Tax – Appeal To Commissioner (Appeals) – Condonation Of Delay – Amendment Prescribing Pre-Deposit For Entertainment Of Appeal – Orders Should Include That Information To Enable Asses-see To Comply – Appeal Filed Within Condonable Period Without Pre-Deposit – Defect Pointed Out And Pre-Deposit Made Before Appeal Taken Up For Hearing – Order Dismissing Appeal Set Aside And Appeal Restored For Disposal On Merits – Central Excise Act (1 Of 1944), S. 35F

Statute: Sales TaxDecision in favour of: Assessee

Title:Sungwoo Gestamp Hitech (Chennai) Ltd.

(Formerly known as Technical Stampings Automo-tive Ltd.)

v.Deputy Commercial Tax Officer, Sriperumbudur

Assessment Circle. Varadarajapuram And Others---------------------------------------------------------------------

-------------S. Manikumar And Subramonium Prasad JJ.

January 3, 2019.

Citation:[2019] GSTR 313 (Mad)Bench/Court:In The Madras High Court

Sales Tax – Sales Tax Deferral Scheme – Unit Set Up By Appellant For Manufacture Of Assemblies And Sub-Assemblies Of Sheet Metal Components, i.e. Automobile Parts – Eligibility Certificate Under G.O. Issued To Appellant, On April 10, 2001, By SIPCOT For Period From April 1, 2001 To March 31, 2010 For Deferral Concession On ‘Produc’ Manufactured By Appellant – Rejection Of Concession On Turnover Of Steel Scrap, A By-Product Challenged By Appel-lant In Wit Petition (JBM Sungwoo Ltd. v. State In-dustries Promotion Corporation Of Tamil Nadu Ltd. [2007] 6 VST 527 (Mad)) Wherein Order Of Rejec-tion Quashed By Order Dated September 13, 2006 – Deferral Once Again Refused – Order Of Rejection Again By Single Judge – Based On Erroneous Rea-soning – That Turnover Of Sale Of By-Product Also Entitled To Benefit On Deferral Scheme Repeatedly Held By Courts – Issue Stood Governed By Order, Dated September 13, 2006 In W.P. (JBM Sungwoo Ltd. v. State Industries Promotion Corporation Of Ta-mil Nadu Ltd. [2007] 6 VST 527 (Mad)) – Authorities Duty Bound To Grant Deferral On Turnover Of Scrap – Tamil Nadu General Sales Tax Act (1 Of 1959) – Notification G.O. Ms. No. 500, Dated May 14, 1990 – Notification G.O. P. No. 92 (CT & RE), Dated Feb-ruary 22, 1991

Statute: Value Added Tax Decision in favour of: Department

Title:State Of Kerala

v.Pan Pacific Engineering Services (P) Ltd.

K. Vinod Chandran And Ashok Menon JJ.July 9, 2018.

Citation:[2019] 62 GSTR 359 (Ker) Bench/Court:In The Kerala High Court

Value Added Tax – Works Contract – Evasion Of Tax – Penalty – Goods Supplied By Awarder Of Contract For Incorporation Into Works Contract, And Price Thereof Deducted From Total Contract Amounts Due To Awardee – Sale From Awardee To Awarder On Ac-cretion Of Such Goods To Works Contract – Tax Pay-able On Entire Contract Receipts At Uniform Higher Rate After Claiming Exemptions Under Rule – Con-tract Receipt Disclosed In Return Showing Purchase Price Of Goods After Adding Gross Profit And Tax Paid On It At Rates Applicable To Individual Goods, As Per Schedule, As Mere Sale – Suppression In Return Leading To Tax Evasion – Penalty Attracted – Kerala Value Added Tax Act, 2003 (30 Of 2004), S. 6(1)(f) – Kerala Value Added Tax Rules, 2005, R. 10.

Value Added Tax – Works Contract – Input-Tax Cred-it – Goods Supplied By Awarder For Incorporation Into Works Contract, And Price Thereof Deducted From Total Contract Amounts Due To Awardee When Payment Settled – ‘Zero’ Tax Liability On Award-er When Goods Supplied To Awardee As Purchase Made On Behalf Of Awardee – Subsequent Sale By Accretion Of Goods Into Works Contract – Awardee Entitled To Claim Input-Tax Credit Of Tax Originally Paid By Awarder Only In Assessment Proceedings – Input-Tax Credit Cannot Be Claimed For Deduc-tion From Suppression Determined Due To Asses-see’s Failure To Include Goods Supplied By Awarder In Contract Receipt In Return And Account Books – Kerala Value Added Tax Act, 2003 (30 Of 2004), S. 6(1)(f) – Kerala Value Added Tax Rules, 2005, R.10.

Statute: Service Tax Decision in favour of:Assessee

Title:Chenta Inc. And Another v.Union Of India And Others

Achintya Malla Bujro Barua J.December 11, 2018.

Citation:[2019] 62 GSTR 439 (Gauhati)Bench/Court:In The Gauhati High Court

Service Tax – Registration – Voluntary Compliance Encouragement Scheme – Assessee Having Two Different Registrations In Respect Of Two Different Businesses – To Be Construed As Separate Assess-es For The Purpose Of Levy Of Service Tax – En-quiry Or Investigation Undertaken In Respect Of One Business – Not Ground To Reject Voluntary Declaration Made In Respect Of Other Businesses Under Separate Registration – Finance Act (17 Of 2013), S. 106(1) – Service Tax, Voluntary Compli-ance Encouragement Scheme, 2013 – Circular No. 174/9/2013-ST Dared November 25, 2013 – Circular No. 170/5/2013-ST Dated August 8, 2013.

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Statute: Service TaxDecision in favour of: Assessee

Title:Commissioner Of Central Excise, Service Tax and

Customs, Bangalore - II v. Nithesh Estates Ltd.

Dr. Vineet Kothari And Mrs. S. Sujatha JJ.July 4, 2018.

Citation:[2019] 62 GSTR 448 (Karn) Bench/Court:In The Karnataka High Court

Service Tax – Construction Contract – Construction Of Residential Complex – Sub-Contractor – Residen-tial Complex – Definition – Ultimate Owner Entering Into Contract Dated April 1, 2006 For Construction Of ‘Residential Complex’ (For Providing Accommoda-tion To Its Employees) With Respondent-Assessee – Activity Fell Within Exclusion Clause Of Definition Of ‘Residential Complex’ And Not Subjected To Tax – Where Respondent-Assessee Sub Contracted Con-struction In Entirety To Sub-Contractor, Respondent Service Receiver And Construction Not For Its Per-sonal Use – Liability On Sub-Contractor – Asses-see-Principal Contractor Not Taken Any Construction – Not Liable – Finance Act (32 Of 1994), S. 65(91a) – Circular Of Central Board Of Excise And Customs, Dated May 24, 2010 – Circular No. 108/2/2009-S.T. Dated January 29, 2009.

Statute: Sales TaxDecision in favour of: Appellant

Title:M. Thirumaran v.

Commercial Tax Officer, Sengottai AssessmentCircle, Sengottai And Another

M. Sathyanarayanan And Mrs. R. Hemalatha JJ.February 21, 2018.

Citation:[2019] 62 GSTR 459 (Mad) Bench/Court:In The Madras High Court — Madurai Bench

Sales Tax – Recovery Of Tax – Bona Fide Purchaser For Value – Purchase Of Property Through Regis-tered Sale Deed Dated July 5, 2004 – Business By Vendor-Defaulter Closed On April 1, 2002 – Encum-brance Certificate Verified By Purchaser Not Reveal-ing Charge Created Over Property – No Actual Or Constructive Notice Of Charge Created Over Proper-ty For Payment Of Arrears Of Sales Tax In Respect Of Business By Vendor – Nothing To Infer Collusion Between Parties With Intention To Defraud Reve-nue – No Materials To Show That Steps Taken By Respondent Under Revenue Recovery Act, Against Defaulter From Whom Property Purchased – A Bona Fide Purchaser For Consideration Without Notice – Recovery Proceedings Cannot Be Initiated Against Purchaser – Tamil Nadu General Sales Tax Act (1 Of 1959), S. 24(A) – Revenue Recovery Act – Transfer Of Property Act (4 Of 1882), SS. 3, 100.

Statute: Value Added TaxDecision in favour of:Assessee

Title:State Of Karnataka v.

Ceeta Industries Limited

Dr. Vineet Kothari And Mrs. S. Sujatha JJ.August 10, 2018.

Citation:[2019] 62 GSTR 479 (Karn) Bench/Court:In The Karnataka High Court

Value Added Tax – Deduction- Trade Discount – Deduc-tion Of Trade Discount – Cannot Be Denied By Insisting On Reflection Of Such Trade Discount In Tax Invoice/Sale Bill At Point Of Sale – However Transactions Allow-ing Discount To Be Proved On Basis Of Contemporane-ous Records And Final Sale Price After Deducting Trade Discount To Be Mandatorily Reflected In Accounts – Kar-nataka Value Added Tax Act, 2003 (32 Of 2004).

Value Added Tax – Input Tax Credit – Benefit Of Input Tax Credit Cannot Be Denied To Purchasing Dealer On Ground Selling Dealer Not Deposited Tax Amount In Treasury – Sufficient If Purchasing Dealer Demonstrates Tax Paid By It To Selling Dealer – Karnataka Value Add-ed Tax Act, 2003 (32 Of 2004).

Octagon Communications Pvt Ltd vs Union Of India on 18 April, 2019

Bench: Harsha Devani, Bhargav D. KariaC/SCA/5873/2019

ORDERIN THE HIGH COURT OF GUJARAT AT AH-

MEDABADR/SPECIAL CIVIL APPLICATION NO. 5873 of 2019

==========================================================1. Despite service of notice, there is no appearance on behalf of the respondents No.2 and 3.2. Mr. Uchit Sheth, learned advocate for the petitioner has submitted that there is no condition for making pay-ment of tax as a pre-condition for filing return of Form GSTR-3B. It was submitted that in the absence of any such provision, the on- line system of the respondents which does not allow filing of returns without payment of tax liability admitted as per such returns is contrary to legal provisions. It was further submitted that if the petitioner is not able to file return in Form GSTR-3B by 20th April, 2019 the petitioner would be deprived of input tax credit.3. Having regard to the urgency of the matter and the fact that there is no response from the respondents No.2 and 3, by way of ad-interim relief, the petitioner is per-mitted to file manual returns in Form GSTR-3B for the months November, 2017 onwards, which would be sub-ject to final outcome of the petition. Stand over to 13th June 2019.

11

Residential Refresher Course at Lake Palace Backwater Resort, Alleppey

CA.Babu Abraham Kallivayalil, CCM, ICAI

CA. Pramod Jain, CCM, ICAI

CA. Satish Kumar Gupta,CCM, ICAI

CA. Jay Chhaira,CCM, ICAI

CA.Jomon.K.GeorgeChairman, SIRC of ICAI

CA.Dungar Chand U JainVice Chairman, SIRC of ICAI

CA.Sreenivasan P.RChairman, Ernakulam ICAI

CA.Shankara Narayanan VChennai

CA.M.C.JosephPast Central Council

Member, ICAI

CA.K.P.PaulsonPast Chairman, ErnakulamI,CAI

CA.Balagopal RamamohanPast Chairman, Ernakulam,ICAI

CA.P.T.JoyPast Chairman, Ernakulam,ICAI

CA.Krishnakumar P.R CA.Y. V V Sivram Prasad

Published by CA.Sreenivasan P.R, Chairman, Ernakulam Branch of SIRC of ICAI , ‘ICAI Bhawan’,, Diwan’s Road, Ernakulam, kochi - 682016 Phone: 0484- 2362027. Email: [email protected]. Website: www.ernakulam-icai.org Editor: CA.Sreenivasan P.R, Chairman, Ernakulam Branch of SIRC of ICAI

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