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Project-Level Input Tax Credit Allocation Requires Actual GST Benefits to Be Passed to Real-Estate Buyers With Interest
Real-estate anti-profiteering calculations should measure incremental GST input tax credit actually availed at project level, determine total savings against project expenditure, and allocate a uniform benefit per square foot across the project area rather than compare credit with turnover or buyer collections. Unavailed pre-GST CENVAT credit on input services cannot notionally reduce post-GST benefits because it did not reduce the earlier tax incidence. GST collected on enhanced consideration forms part of the recoverable profiteered amount, and statutory interest applies. The resulting project-specific benefit must be passed to affected recipients.
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Expired E-Way Bills Alone Did Not Justify Detention Tax and Penalty Without Evidence of Evasion
Expired e-way bills, without evidence of tax evasion or discrepancies in the goods, did not justify detention, tax and penalty under Section 129 of the CGST Act. Section 129 addresses contraventions during transportation, while Rule 138(10) prescribes e-way bill validity. The consignment was supported by invoices, lorry receipt, e-way bills and a test certificate, and physical verification found no discrepancy. The sole defect arose from expiry caused by an incorrect destination entry. The distinction between substantive contraventions and minor procedural lapses supported setting aside the integrated tax and penalty.
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Customs interest on redeemed imported goods runs from adjudicated duty determination, not the original Bill of Entry assessment.
Interest on duty payable upon redemption of confiscated imported goods arises only after the consequent duty liability is assessed and determined through the Section 28 mechanism. Section 125(2) makes duty and charges payable when the redemption option is exercised and accepted; the original Bill of Entry assessment, based on the declared goods description, does not determine liability arising from later confiscation, reclassification, redemption fine and penalty proceedings. Interest cannot run for the period before the adjudication-based determination, but remains payable thereafter where applicable, subject to reassessment and credits for payments or appropriations.
AI TextQuick Glance (AI)Headnote
Director penalty for improper importation fails when related reclassification demand is set aside and goods cannot be confiscated.
Penalty for improper importation under Section 112(a) requires an act or omission that renders goods liable to confiscation under Section 111. Where goods are unavailable for confiscation and no redemption fine is imposed, and the related duty demand and importer penalties based on the same reclassification have been set aside, penal liability of a director lacks a legal basis. The director's penalty is therefore unsustainable.
AI TextQuick Glance (AI)Headnote
AED (GSI) credit cannot offset basic excise duty where final tyre products bear no corresponding additional excise duty.
AED (GSI) credit under the MODVAT regime was unavailable for unprocessed nylon tyre cord fabric where the intermediate TCWS was exempt from AED (GSI) and finished tyres were not chargeable to that duty. Rule 57C barred credit for inputs used in exempt or nil-rated final products, while Notification No. 5/94-C.E. (N.T.) confined AED (GSI) credit to payment of the same additional duty on final products; it could not offset basic excise duty. Refund for exported tyres likewise required valid underlying credit and therefore did not arise. Later CENVAT changes did not apply to 1998-99, and the retrospective amendment applied only from 1 April 2000.
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Recall applications filed under express liberty cannot be rejected as delayed when the underlying proceeding remains pending.
Recall of an ex parte order should not be rejected as delayed where the applicant filed after the Adjudicating Authority expressly granted liberty to seek recall following identification of an earlier procedural mistake. Treating such an application as time-barred is hypertechnical where the underlying proceeding remains pending. The delay-based rejection was set aside, the ex parte order was recalled for the appellant, and its reply was taken on record with permission to participate in further proceedings.
AI TextQuick Glance (AI)Headnote
CENVAT credit on raw-material shortages remains available where work-in-progress records explain stock discrepancies and non-receipt is unproved.
CENVAT credit cannot be denied merely because raw-material shortages are recorded where the stock is explained as work-in-progress and supported by work log sheets. Authorities must examine that explanation and investigate whether the inputs were actually received before treating shortages as proof of non-receipt. Uninvestigated raw-material shortages, without addressing contemporaneous production records, do not establish that goods were not received and cannot by themselves justify denial of credit.
AI TextQuick Glance (AI)Headnote
Cenvat Credit for Job-Worked Goods Remains Available Despite Duty-Free Clearance to the Principal Manufacturer under Separate-Accounting Restrictions
Rule 6(2) of the Cenvat Credit Rules, 2004 applies where an assessee manufactures both dutiable and exempt goods without maintaining separate accounts for inputs or input services. Job-worked goods cleared without payment of duty to the principal manufacturer remain dutiable goods; non-payment of duty by the job worker at clearance does not render them exempt goods. Consequently, Cenvat credit on consumables used to manufacture job-worked goods is not barred under Rule 6(2), and denial of that credit is unsustainable.
AI TextQuick Glance (AI)Headnote
Defence aircraft customs exemption depends on functional end-use nexus and mandatory import certification, not individual tariff headings.
Defence-aircraft customs exemption for imported parts, sub-assemblies and accessories operates on functional character and qualifying end use rather than individual tariff classification. Prefabricated missile-warning system components integrated into a military helicopter's electronic-warfare suite may fall within the exemption where their exclusive defence nexus is established. Eligibility remains conditional on satisfying the prescribed certification requirement at importation; end-use documents do not replace that certificate. Advance-ruling admission requires a valid importer-exporter code, a question on proposed imports, payment of the prescribed fee, and no identical pending or previously decided question for the applicant. Classification and consignment-level verification remain for import assessment.
AI TextQuick Glance (AI)Headnote
Reverse-charge liability for foreign-bank charges fails without proof that the exporter received identified taxable services.
Reverse-charge liability for foreign-bank charges under the Service Tax Rules and Finance Act arises only where the Indian exporter is proved to be the recipient of an identified taxable service through privity of contract or an equivalent service relationship. Charges ultimately borne by the exporter do not alone establish recipient status; for collection of export proceeds, the Indian bank may instead receive the foreign bank's service. A composite demand that does not separately identify overseas commission and banking services is unsustainable. Extended limitation and equal penalty require evidence of suppression or mala fide intent and are unavailable where audit records disclosed the facts and revenue neutrality exists.
AI TextQuick Glance (AI)Headnote
Permanent establishment and make-available tests exclude profit attribution and reimbursement taxation; corporate guarantee pricing requires fresh review.
Inadvertent omission to give effect to binding DRP directions, where apparent from the assessment record, may be rectified under Section 154 within the prescribed limitation and does not invalidate the final assessment order. Under the India-USA DTAA, an Indian subsidiary does not constitute a permanent establishment without supporting facts, so business profits are not attributable to India. Back-to-back expense reimbursements without mark-up are not fees for included services unless qualifying technical or consultancy services satisfy the Article 12(4)(b) make-available test. Corporate-guarantee commission cannot be estimated without examining the taxpayer's transfer-pricing benchmarking and relevant facts, requiring fresh determination.
AI TextQuick Glance (AI)Headnote
Domestic scholarship payments for overseas study remain charitable activity, supporting trust registration and donor-benefit approval.
Scholarships paid in India in Indian currency to Indian students pursuing education abroad constitute domestic application of income and remain within charitable educational objects; students' later use of funds abroad does not make the payment an overseas application. Registration under section 12AB and consequential approval under section 80G depend on charitable objects, genuineness of activities, and legally material compliance. Alleged misapplication of income or benefits to specified persons concern exemption computation in assessment proceedings, not the registration inquiry. Where activities are genuine and objects charitable, those allegations do not justify refusal, and registration with consequential approval should be granted.
AI TextQuick Glance (AI)Headnote
Re-export of detained personal jewellery requires adjudication of the return request before release and any customs penalty.
Return of detained personal jewellery for re-export to Saudi Arabia remained subject to adjudication of the petitioners' representation or application. The jewellery was asserted to be personal property intended for return overseas rather than sale in India. The process contemplated consideration of a minor customs penalty for the infraction, with the petitioners' consent. No final determination on the release or re-export of the jewellery had been made.

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2024 (5) TMI 1646 - AT - Income Tax

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309-day late ITAT appeal blamed on prior counsel's email; delay condonation denied, appeal dismissed as time-barred.
The dominant issue was whether a 309-day delay in filing an appeal before the ITAT should be condoned. The appellant attributed the delay to the CIT(A) ... Summary

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Acts Income Tax