TaxTMI Updates e-Newsletter
Jun 06,2026

Condonation of delay in statutory appeal- Sufficient Cause -Bona Fide Pursuit of Remedy - Exercise of writ jurisdiction where appellate authority lacks power to condone delay -HELD THAT: - The Court recorded the fair submission of the respondents that the controversy was identical to that involved in Shobhalal [2026 (5) TMI 255 - RAJASTHAN HIGH COURT]. Proceeding on that basis, the Court applied the same view taken earlier and held that the writ petition deserved to be allowed in the same terms, with condonation of the delay in filing the appeal. Consequentially, the original and appellate orders were quashed, and the appellate authority was directed to decide the already filed appeal on merits in accordance with law, subject to compliance with the statutory deposit and other dues directed by the Court. [Paras 4, 5, 6]

The delay in filing the appeal was condoned, the impugned orders were set aside, and the appellate authority was directed to hear and decide the appeal on merits.

Final Conclusion: Following its earlier decision in an identical matter, the Court condoned the delay in filing the statutory appeal, quashed the impugned orders, and directed the appellate authority to decide the appeal on merits expeditiously in accordance with law.

Validity of the order passed under Section 73 - Service of notice after cancellation of GST registration - Violation of principles of natural justice - HELD THAT: - The Court held that once the registration stood cancelled, the petitioner was not obliged to keep checking the GST portal. In such a situation, service of the show cause notice was required to be effected through alternative means. Since the impugned order had been passed without proper notice in that manner, the Court found a breach of the principles of natural justice and accepted the principle stated in M/s Katyal Industries v. State of U.P. and others [2024 (2) TMI 1447 - ALLAHABAD HIGH COURT]. [Paras 4, 5, 6]

The impugned order was quashed, leaving it open to the department to issue a proper notice and proceed in accordance with law.

Final Conclusion: The writ petition was disposed of by quashing the order passed under Section 73, as the petitioner, whose registration had already been cancelled, could not be treated as bound to monitor the GST portal for notice. Liberty was reserved to the department to issue a proper notice and proceed in accordance with law.

Maintainability of writ petition in presence of statutory appellate remedy - Alternative remedy under the CGST Appellate Tribunal -HELD THAT: - The Court noted that the Appellate Tribunal under Section 112 of the CGST Act had started functioning and that, by the notified extension, appeals against orders communicated before 01.04.2026 could be filed up to 30.06.2026. Since the impugned order-in-appeal fell within that notified category, the petitioner still had an available and efficacious appellate remedy, and the grounds raised in the writ petition could also be urged before the Tribunal. On that basis, the Court declined to entertain the writ petition. [Paras 5, 6]

The petitioner was relegated to the statutory appellate remedy, with liberty to file the appeal before the Appellate Tribunal on or before 30.06.2026.

Final Conclusion: The writ petition was not entertained in view of the available and subsisting statutory remedy of appeal before the Appellate Tribunal under the CGST Act. Liberty was reserved to the petitioner to pursue that appeal within the extended period available under the notification.

Principles of natural justice - Failure to consider reply filed on common portal - Availability of alternative remedy in case of procedural unfairness - HELD THAT: - The Court recorded, on instructions from the respondents, that the petitioner had in fact filed a reply to the show-cause notice on the common portal, but for technical reasons that reply was not visible to the adjudicating authority. Since the impugned order had thus been passed without taking note of the reply already furnished, the Court held that there was a clear violation of the principles of natural justice. On that basis, the objection regarding availability of alternative remedy was rejected, and the matter was directed to be reconsidered after permitting the petitioner to file its reply offline and after affording personal hearing. [Paras 5, 6, 7, 8, 9]

The impugned order was set aside, the petitioner was permitted to file an offline reply, and the adjudicating authority was directed to proceed afresh after giving advance notice of personal hearing.

Final Conclusion: The writ petition was disposed of by setting aside the impugned penalty order on the ground of breach of natural justice, since the reply filed by the petitioner on the portal had not been considered owing to technical reasons. Fresh adjudication was directed after receipt of an offline reply and after grant of personal hearing.

Challenged the assessment order - Alternative statutory remedy - Exercise of writ jurisdiction under Article 226 - Concealment of material facts - waiver of interest and penalty -HELD THAT: - The Court found that, after the impugned assessment order, the petitioner had already taken recourse to proceedings under Section 128A of the CGST Act, 2017 and obtained waiver of interest and penalty. In that situation, if the petitioner still remained aggrieved by the assessment order, the proper course was to approach the appellate authority. The Court further held that the petitioner had concealed the fact of having moved the application under Section 128A, and therefore no interference under Article 226 was warranted, particularly when an effective alternative statutory remedy was available. [Paras 5, 6, 7]

The writ petition was dismissed on the ground of availability of alternative remedy, the Court also noting concealment of the petitioner's recourse to Section 128A proceedings.

Final Conclusion: The Court declined to entertain the writ petition against the assessment order, holding that the petitioner must pursue the statutory appellate remedy. Concealment of the earlier recourse under Section 128A also weighed against interference in writ jurisdiction.

Maintainability of writ petition - Efficacious alternative remedy - Challenged the adjudication order -HELD THAT: - The Court expressly declined to examine the petitioner's challenge on merits and sustained the preliminary objection on the ground that an efficacious statutory appeal was available. It noted that, if the petitioner were to succeed on the grounds urged, such challenge could appropriately be tested before the appellate authority, and that the limitation for filing the appeal was still subsisting. The writ petition was therefore disposed of without any expression on the merits, leaving all issues open for consideration in appeal. [Paras 6, 7, 8]

The petitioner was relegated to the statutory appellate remedy, with liberty to file the appeal within the time granted by the Court.

Final Conclusion: The writ petition was disposed of on the ground of availability of an efficacious alternative remedy of appeal. All merits were left open, and the petitioner was permitted to approach the appellate authority within the time granted by the Court.

Exemption of healthcare services under Notification No. 12/2017-Central Tax (Rate) and the CBIC circular- Classification of medical services - Validity ofimpugned Show Cause Notices (SCNs) issued under Section 73(1) - Availability of an alternative remedy.

Healthcare services exemption - Clinical establishment - Misclassification as support services -HELD THAT: - The Court held that the medical services agreement showed that the petitioner, itself being a clinical establishment, was rendering diagnosis, treatment and medical care to patients through doctors, specialists and para-medical personnel, and that the consideration received under the revenue-sharing arrangement was for such healthcare services. On a conjoint reading of the exemption notification and the CBIC circular, healthcare services provided by a clinical establishment, including amounts charged from patients and the portion shared with doctors or service providers, remained exempt. The substance of the arrangement was direct medical treatment to patients, not supply of manpower or business support to the other hospital; consequently, classification under SAC 9985 as support services was held untenable, and the exemption could not be defeated by treating the contractual arrangement as a taxable B2B transaction. [Paras 13, 15, 17, 18, 21]

The impugned show cause notices were without jurisdiction insofar as they sought to levy GST on exempt healthcare services and were liable to be quashed.

Writ against show cause notice - Jurisdictional error - Alternative remedy -HELD THAT: - The Court held that where the foundational jurisdictional facts necessary to deny the claimed exemption were absent, the mere existence of an alternative remedy did not bar exercise of writ jurisdiction. Since the notices themselves proceeded contrary to the exemption notification and the clarificatory circular, the challenge was not premature. [Paras 20]

The objection based on alternative remedy was rejected.

Final Conclusion: The Court held that the petitioner's services rendered through another hospital were exempt healthcare services under the applicable exemption notification read with the CBIC circular, and not taxable support services. The writ petitions were held maintainable notwithstanding alternative remedy, and the impugned show cause notices were quashed for all the stated tax periods.

Maintainability of writ petition - Availability of appeal under Section 107 - barred entertainment of the writ petitions - HELD THAT: - The Court recorded that the petitioners admittedly had an effective alternative remedy of appeal before the Appellate Authority. On that basis, it declined to entertain the writ petitions and left it open to the petitioners to pursue the statutory appellate remedy, permitting them to raise all legal and factual grounds before the Appellate Authority. The Court further directed that if the appeals were filed within thirty days, they should be decided on merits without examining limitation. [Paras 1, 2, 3, 4, 5]

The writ petitions were disposed of in view of the available appellate remedy, with liberty to file appeals within thirty days and with a direction that limitation should not be examined if so filed.

Final Conclusion: The Court disposed of the writ petitions on the ground of availability of the statutory appellate remedy. Liberty was granted to file appeals, and if filed within thirty days, the Appellate Authority was directed to decide them on merits without going into limitation.

Right of appeal of owner of goods - Supply of detention and seizure forms to registered owner - Access to temporary registration for availing statutory remedy -HELD THAT: - The Court recorded that, though the relevant MOV forms had been prepared in the name of the driver or person in charge of the vehicle and served on him, the right to appeal was vested in the owner of the goods, and the petitioner claimed to be that registered owner. On that basis, it accepted the statement of the Standing Counsel that the said forms, together with the temporary ID and password, would be created and made available to the petitioner on the e-mail address mentioned in MOV-09. The Court further protected the petitioner's access to the statutory remedy by directing that limitation be computed from such compliance and that no objection as to limitation be raised. [Paras 4, 5, 6]

Copies of MOV-01, MOV-02, MOV-04 and MOV-06 and the temporary ID and password were directed to be provided to the petitioner, and the petitioner was permitted to avail the statutory remedy with limitation computed from that date and without objection on limitation.

Final Conclusion: The writ petition was disposed of with a direction that the relevant MOV forms and temporary login credentials be furnished to the petitioner as owner of the goods, and that the statutory remedy thereafter be available without objection as to limitation.

Statutory appellate remedy under GST - Availability of GST Appellate Tribunal-Limitation for appeal before Tribunal - Condonation of delay - Pre-deposit compliance -HELD THAT: - The Court recorded that the GST Appellate Tribunal had been constituted, procedural rules for its functioning had been notified, and Members had been appointed to the respective Benches. In view of these developments, the basis on which the writ petition had been instituted, namely absence of the Tribunal for availing the appellate remedy, no longer survived. The Court therefore declined to examine the validity or legality of the impugned orders on merits and permitted the petitioner to file an appeal before the Tribunal within the period notified by the Central Government, directing that no objection as to limitation be raised if the appeal was filed within that period. It was further directed that any amount deposited pursuant to the interim order would be treated as compliance with the statutory pre-deposit requirement, subject to production of the certified copy of the interim order and proof of deposit, and that defects in the appeal, if any, be intimated and cured within the time stipulated.

The petitioner was relegated to the statutory appellate remedy before the GST Appellate Tribunal, with protection regarding limitation and adjustment of the amount already deposited towards the statutory pre-deposit.

Final Conclusion: The writ petition was disposed of without examining the merits of the impugned orders, in view of the constitution and commencement of functioning of the GST Appellate Tribunal. The petitioner was permitted to file an appeal before the Tribunal within the notified period, with consequential protection against limitation objections and recognition of the earlier deposit towards statutory compliance.

Challenged the adjudication order - Service of physical notice after cancellation of registration - statutory mode of service under Section 169(1)(a)(b) -Denial of opportunity to object and be heard -Violation of natural justice in adjudication proceedings - Right of hearing under GST adjudication -HELD THAT: - The Court held that, once registration stood cancelled, the person could not be expected to access the Common Portal and was in any case no longer obliged to keep checking it. In such a situation, adjudication proceedings initiated thereafter required service of notice through physical mode in terms of the statutory modes of service. Since no such physical notice had been issued or served, the petitioner was effectively deprived of the opportunity to submit a reply and to be heard. That amounted to a substantial violation of the principles of natural justice and of the statutory protection of hearing in adjudication. [Paras 3, 4, 5]

The adjudication order was set aside, and the matter was remitted for fresh adjudication after issuance of a physical notice along with relied upon documents and after granting due opportunity to file reply and be heard.

Final Conclusion: The writ petition was allowed on the ground of denial of effective notice and hearing. The adjudication order was quashed and the matter remitted for fresh proceedings after physical service of notice and relied upon documents, with opportunity to reply and be heard.

Disciplinary proceedings against quasi-judicial orders - Misconduct and mere error of judgment - Assessment order passed by the income-tax officer in exercise of quasi-judicial powers

Quasi-judicial function of Assessing Officer - Mere error of judgment and misconduct - Disciplinary action for grant of exemption under Section 10B - Whether Assessing Officer's grant of exemption u/s 10B while passing the assessment order for the relevant assessment year did constitute misconduct warranting disciplinary action? - HELD THAT: - The Court held that misconduct, in the context of service jurisprudence, requires something more than a mere erroneous or debatable decision, and that disciplinary action against an officer discharging quasi-judicial functions is permissible only where the decision reflects lack of integrity, lack of devotion to duty, mala fides, recklessness, conscious disregard of law, or an attempt to unduly favour a party.

On the charge framed, the substance of the allegation was only that the assessment order was faulty, had departed from the Department's earlier stand, and had caused revenue prejudice; the charge did not disclose any concrete allegation of lack of integrity or want of devotion to duty.

The respondent had passed the order after referring to the earlier orders of the ITAT in the assessee's case and to the decision in Arihant Tiles and Marbles Pvt. Ltd. [2009 (12) TMI 1 - SUPREME COURT] and had also pointed to changed facts regarding plant, machinery and processing activity.

The Court found that the view taken by him was at least a plausible one, supported by material and reasons, and not an abstract or arbitrary exercise. Once the assessment order itself had been upheld by the ITAT, the officer's decision could not be treated as legally unsustainable so as to infer misconduct. In the absence of any evidence of ill intention, personal gain, or undue favour, the case did not satisfy the tests laid down for disciplinary action against quasi-judicial orders. [Paras 22, 23, 24, 25, 26]

The Tribunal was justified in quashing the charge-sheet and penalty order, and the writ petition challenging that view was dismissed.

Final Conclusion: The Court held that the respondent, while acting in a quasi-judicial capacity, had taken a plausible and reasoned view on the assessee's entitlement to exemption, and that no material existed to establish mala fides, lack of integrity, recklessness or undue favour. The disciplinary action was therefore unsustainable, and the writ petition was dismissed.

Transfer of jurisdiction u/s 127 - Notice under section 143(2) by jurisdictional Assessing Officer - Assessment void for jurisdictional defect

Transfer of the assessee's case from Faridabad to Delhi without granting an opportunity of hearing and the consequent notices under section 143(2) issued by the Delhi officers - HELD THAT: - The Tribunal found it undisputed that the order transferring jurisdiction from Faridabad to Delhi had been passed without giving the assessee a reasonable opportunity of being heard, though such hearing was mandated before effecting transfer. On that finding, the transfer order was held invalid. As a result, the notices under section 143(2) issued by the Delhi officers were treated as notices issued by officers not vested with valid jurisdiction and therefore as no valid notice for the impugned assessment year.

Tribunal further held that, after cancellation of the transfer order, jurisdiction stood restored to the original Assessing Officer at Faridabad, but that officer also completed the assessment without first assuming valid jurisdiction by issuing a notice under section 143(2). The assessment therefore suffered from a foundational jurisdictional defect. [Paras 7, 8]

The assessment order was quashed as invalid for want of a valid transfer of jurisdiction and absence of a valid notice under section 143(2) by the jurisdictional Assessing Officer.

Final Conclusion: The Tribunal allowed the appeal on the legal ground of lack of jurisdiction. The transfer of jurisdiction having been held invalid and no valid notice under section 143(2) having been issued by the competent Assessing Officer, the assessment for Assessment Year 2017-18 was quashed, and the merits were left undecided.

Fixed place permanent establishment - Installation or supervisory permanent establishment - Disposal test - Permanence test

Whether assessee did not have a fixed place permanent establishment in India under Article 5(1) of the Indo-Canadian DTAA? - HELD THAT: - The Tribunal held that none of the recognized tests for existence of a fixed place PE were satisfied, namely, the place of business test, disposal test, permanence test and business activity test. It accepted that the customer premises were not at the disposal of the assessee, there was no fixed place in India through which the assessee carried on its business, and the limited presence of the assessee's personnel did not establish the required permanence or continuity. On that basis, the finding of fixed place PE was rejected. [Paras 4]

The finding of fixed place PE was set aside.

Installation or supervisory permanent establishment - Threshold period - Profit attribution - income attributed to any alleged PE - HELD THAT: - The Tribunal found that, during the year under consideration, the only activity in India was a five-day visit by the assessee's employee for inspection of the client's premises. It further noted that the actual installation occurred in the subsequent financial year and lasted only 17 days. Since the activity did not cross the 120-day threshold prescribed under the Indo-Canadian DTAA, no installation or supervisory PE came into existence. As the very basis of PE failed, the Tribunal held that no question of attributing income to any alleged PE survived and declined to examine the individual additions founded on the assumed PE. [Paras 4]

The allegation of installation or supervisory PE was rejected, and the consequential attribution of income was held unsustainable.

Final Conclusion: The Tribunal allowed the appeal and held that the assessee had neither a fixed place PE nor an installation or supervisory PE in India. Consequently, no income could be attributed to any alleged PE and the additions founded on that premise could not survive.

Provision for repair of unserviceable spares - Contingent liability and accrued business expenditure - Provision for obsolescence of Bid & Win inventory

Provision for repair of unserviceable spares - Contingent liability and accrued business expenditure - Disallowance of provision made for repair of unserviceable spare parts in the airline business merely on the ground that the liability was contingent. - HELD THAT: - The Tribunal held that the lower authorities had rejected the claim only by treating the provision as a contingent liability. It found that the assessee had corresponding spare-parts inventory in the ordinary course of its airline business and that expenditure on repairs or spares was a normal recurring business outgo. Applying Bharat Earth Movers [2000 (8) TMI 4 - SUPREME COURT] Tribunal held that a provision based on estimation could be allowable even though exact quantification would crystallise later. Relying also on Chainrup Sampatram [1953 (10) TMI 2 - SUPREME COURT] it held that provision for anticipated business loss or expenditure could be made at the first sign of reasonable probability. [Paras 6]

The disallowance of the provision for repair of unserviceable spare parts was deleted, subject to necessary computation in accordance with law.

Provision for obsolescence of Bid & Win inventory -Allowance in succeeding assessment year - HELD THAT: - The Tribunal recorded the Departmental Representative's submission that the claim already stood accepted in the succeeding assessment year in terms of the lower appellate directions. Proceeding on that basis, it rejected the assessee's ground for the year under appeal. [Paras 3]

The ground relating to provision for obsolescence of Bid & Win inventory was rejected for this assessment year.

Final Conclusion: The appeal for Assessment Year 2007-08 was partly allowed. The disallowance of provision for repair of unserviceable spare parts was deleted, while the ground concerning obsolescence provision was rejected and the remaining disallowance grounds were rejected as having not been pressed before the CIT(A).

Fringe benefits tax on employee-related expenditure - Penalty for inaccurate particulars in fringe benefits return

Fringe benefits tax on employee-related expenditure - Employee travel and hospitality expenses - Expenditure on free or concessional tickets, hospitality charges, conveyance or travelling, goods, and hotel boarding and lodging incurred for employees as chargeable as fringe benefits - HELD THAT: - The Tribunal held that the specified heads of expenditure were covered by section 115WB(1)(b) and the relevant clauses of section 115WB(2), and that the Assessing Officer had correctly assessed them as fringe benefits on the facts of the case. Since the special audit had also computed the impugned fringe benefit liability and the lower authorities had concurrently treated those expenses as falling within the statutory heads, no interference was warranted with the quantum assessment. [Paras 3]

The assessee's challenge to the inclusion of the five heads of expenditure in the value of fringe benefits was rejected.

Consequential verification of tax already paid - Appellate directions in computation - HELD THAT: - While noting the assessee's objection that the Commissioner (Appeals) had no remand jurisdiction, the Tribunal found that the appellate authority had merely required the Assessing Officer to finalise consequential computations after verifying the fringe benefit tax already paid. That direction was treated as a matter of abundant caution in working out the consequence of the appellate order, and not as a fresh remand on merits. [Paras 4]

No interference was called for with the limited consequential direction issued by the Commissioner (Appeals).

Penalty for inaccurate particulars in fringe benefits return - Disallowance of legal claim and penalty - HELD THAT: - The Tribunal upheld the cancellation of penalty under section 271(1)(d), accepting the reasoning that the assessee had sought to justify exclusion of the disputed items in the quantum proceedings and that such stand could not, by itself, be treated as furnishing inaccurate particulars. Applying the principle in Reliance Petroproducts Pvt. Ltd. [2010 (3) TMI 80 - SUPREME COURT] Tribunal held that rejection of the assessee's claim in assessment did not automatically attract penalty when the Revenue failed to show that the particulars furnished were inaccurate. [Paras 6]

The Revenue's challenge to deletion of penalty failed and the cancellation of penalty was sustained.

Final Conclusion: The assessee's appeals against the fringe benefits tax assessment for both assessment years were dismissed, and the Revenue's appeals against deletion of penalty were also dismissed. The Tribunal sustained the quantum assessment on the specified heads of expenditure and upheld cancellation of penalty on the ground that the dispute concerned the assessee's claim and not furnishing of inaccurate particulars.

Bad debt deduction on write-off in accounts - Ad hoc disallowance of business expenses

Bad debt deduction - Write-off in books of account - Deduction for bad debts written off in the accounts denied - HELD THAT: - The Tribunal found from the ledger accounts placed in the paper book that the dues from the identified parties, as well as other bad debts, had been credited and written off in the books as irrecoverable. It held that under the amended law, the assessee is not required to establish that the debt had in fact become irrecoverable; it is sufficient if the debt is written off in the accounts. Relying on T.R.F. Ltd. [2010 (2) TMI 211 - SUPREME COURT] Tribunal held that the lower authorities were not justified in rejecting the claim merely for want of further proof from the debtors. [Paras 10, 11, 12]

The disallowance of bad debts was deleted and the deduction was allowed.

Estimated disallowance of expenses - Arbitrary percentage disallowance - Disallowance of a fixed percentage of transportation, transport charges and vehicle maintenance expenses, without any supporting basis or comparable material - HELD THAT: - The Tribunal held that both the Assessing Officer and the first appellate authority had adopted percentages for disallowance without any data to justify either the original estimate or its reduction. In the absence of any comparable material or reasoned basis, such percentage-based disallowance was treated as arbitrary and incapable of being sustained. [Paras 13]

The addition sustained at 10% of the expenses was deleted.

Final Conclusion: The Tribunal allowed the assessee's appeal for A.Y. 2013-14. It held that the bad debts were allowable on proof of write-off in the books and that the estimated disallowance of expenses, made on an arbitrary percentage basis, was liable to be deleted.

Exemption u/s 54 - Utilization of capital gains before filing return under section 139(4) - Capital Gains Accounts Scheme deposit requirement

Disallowance of exemption under section 54 on the ground that the unutilised capital gain was not deposited in the capital gains account before the due date under section 139(1) - HELD THAT: - The Tribunal held that the deposit requirement under section 54(2) operates where the capital gain remains unutilised before filing the return. On the facts found, the assessee had spent the entire balance capital gain for construction of the new residential house before filing the return under section 139(4) within the extended period, and documentary evidence of such utilisation was placed on record. In these circumstances, the authorities had misconstrued the provision in restricting the benefit only to utilisation made up to the due date under section 139(1).

Following the jurisdictional High Court view in FATHIMA BAI [2008 (10) TMI 563 - KARNATAKA HIGH COURT] that utilisation of the capital gain before the due date under section 139(4) satisfies the statutory requirement, the Tribunal held that exemption under section 54 could not be denied merely because the amount had not been deposited in the capital gains account by the due date under section 139(1). [Paras 13, 14, 15, 16, 17]

The assessee was held entitled to exemption under section 54 and the disallowance was deleted.

Final Conclusion: The Tribunal allowed the appeal and held that exemption under section 54 was available since the capital gains had been utilised for construction of the new house before filing the return under section 139(4). The denial of exemption for non-deposit in the capital gains account by the due date under section 139(1) was therefore unsustainable.

Accrued business expenditure -provision made for ex gratia payment to employees - Disallowance under section 14A - Satisfaction before invoking rule 8D - claim under section 35D - Penalty u/s 271(1)(c) on debatable issue - Share capital expenditure

Disallowance of the provision for ex gratia payment - Mercantile system of accounting - allowable as business expenditure OR contingent liability - HELD THAT: - The Tribunal found that the Board had approved the ex gratia payment and a provision was accordingly made in the books maintained on mercantile basis. Government approval was necessary before release of payment, but that requirement did not make the liability contingent where the provision had a clear basis and a substantial part of the amount was in fact paid immediately after such approval. Since the payment was remuneration to employees incurred wholly and exclusively for business purposes, it was allowable under section 37(1), and the view that deduction could be allowed only in the year of payment was held to be incorrect. [Paras 13, 14]

The disallowance of the provision for ex gratia payment was deleted.

Disallowance in respect of exempt dividend income under section 14A read with rule 8D - Satisfaction before invoking rule 8D - Exempt dividend income - Sufficiency of Own funds - HELD THAT: - The Tribunal held that once the assessee asserted that no expenditure had been incurred for earning exempt income and that the investments were made out of its own interest-free funds, the Assessing Officer was required to examine that claim with reference to the accounts and record satisfaction regarding its incorrectness before resorting to section 14A(2) and rule 8D. The Assessing Officer had proceeded straight to computation without recording such satisfaction after considering the explanation. In view of that defect, the disallowance could not be sustained. [Paras 19, 20, 21, 22]

The disallowance under section 14A read with rule 8D was deleted.

Capital expenditure - Increase in authorised share capital - Amortisation of preliminary expenses - Expenditure incurred for increasing authorised share capital allowable as revenue expenditure - claim for deduction under section 35D - HELD THAT: - Relying on Brooke Bond India Ltd. [1997 (2) TMI 11 - SUPREME COURT] Tribunal held that expenditure incurred in connection with increase of authorised share capital is directly related to expansion of the capital base and therefore retains the character of capital expenditure. On the alternative claim under section 35D, the Tribunal agreed with the lower authorities that the expenditure did not fall within the specific expenses covered by that provision and found no infirmity in denial of the claim. [Paras 26, 27]

The disallowance of expenditure on increase in authorised share capital was sustained and the alternative claim under section 35D was rejected.

Penalty under section 271(1)(c) - Debatable issue - Admission of substantial question of law - disallowance under section 14A - HELD THAT: - The Tribunal treated admission of the assessee's appeal by the High Court on the quantum disallowance as showing that the issue was debatable. Following the jurisdictional High Court decision in Commissioner of Income-tax vs. Ankita Electronics (P.) Ltd., [2015 (3) TMI 1029 - KARNATAKA HIGH COURT] it held that once the issue is admitted by the High Court, the assessee's claim cannot be treated as warranting penalty under section 271(1)(c) merely because the disallowance had been upheld by the revenue authorities. On that ground, the penalty was held to be unsustainable. [Paras 37, 38, 39]

The penalty under section 271(1)(c) was deleted.

Final Conclusion: For Assessment Year 2011-12, the appeal was partly allowed by deleting the disallowances relating to ex gratia provision and section 14A, while sustaining the disallowance of expenditure incurred for increase in authorised share capital. For Assessment Year 2012-13, the penalty under section 271(1)(c) was deleted on the ground that the underlying disallowance was a debatable issue admitted by the High Court.

Disallowance of cash expenditure u/s 40A(3) - Estimation of business profit without rejection of books of account - Non-consideration of documentary evidence - Principles of natural justice

Disallowance of cash expenditure u/s 40A(3) - Non-consideration of ledger extracts - HELD THAT: - The Tribunal held that the Assessing Officer had proceeded on an assumption that the assessee might have made cash payments in violation of section 40A(3), and disallowed a percentage of the expenditure on that basis. On examination of the bank statements, TDS payment details and ledger extracts, it found that payments above the prescribed limit had been made through banking channels, and the other expense entries did not show any payment exceeding that limit. Since these documents had been furnished but were not dealt with by the first appellate authority, the disallowance lacked factual basis and could not be sustained. [Paras 9]

The disallowance under section 40A(3) was deleted.

Estimation of business profit without rejection of books of account - Audited books of account - HELD THAT: - The Tribunal found that the Assessing Officer estimated profit at 2% without identifying any defect in the books of account, without rejecting those books, and without relying on any industry data to justify the estimated rate. Since the books were audited under section 44AB and there was no material circumstance available to support such estimation, the addition based on the estimated profit rate was unsustainable. [Paras 10]

The estimated profit addition was deleted.

Principles of natural justice - Cryptic appellate order - Confirmation of additions by the first appellate authority without dealing with the documents and without discussing the issues in detail- HELD THAT: - The Tribunal recorded that the appellate order had confirmed the additions without examining the material produced by the assessee and without a proper discussion of the disputes. Such non-consideration of the assessee's documents and cryptic affirmation of the assessment was held to be contrary to the principles of natural justice. [Paras 9, 11]

The appellate order was held unsustainable on this ground also.

Final Conclusion: The Tribunal set aside the orders of the lower authorities and allowed the assessee's appeal. Both the disallowance under section 40A(3) and the estimated profit addition were held to be unsustainable on the material available on record.

Capital gains computation - Eviction payments to occupants - Expenditure wholly and exclusively in connection with transfer

Whether Payments made by the co-owner assessee to persons occupying the property for vacating it before sale were allowable in computing capital gains as expenditure incurred to enable transfer of an unencumbered and alienable title? - HELD THAT: - The Tribunal found from the sale deed that what was transferred was a constructed property and that the document itself contemplated the position of tenants or occupants. The assessee had produced contemporaneous material showing cheque payments to such occupants before execution of the sale deed, along with supporting receipts, affidavits and utility bills, which supported the claim that the payments were made to secure vacant possession and facilitate transfer. In these circumstances, the claim could not be rejected merely on suspicion or by treating it as an afterthought without any rebuttal inquiry.

Tribunal held that where payment is made to remove encumbrances or to secure alienable title by settling persons in occupation, such payment forms part of the cost of acquisition or is an expense incurred wholly and exclusively in connection with the transfer. Reliance was placed on Kaushalya Devi [2018 (4) TMI 1137 - DELHI HIGH COURT] wherein Shakuntala Rejeshwar [1986 (3) TMI 74 - DELHI HIGH COURT] had been relied upon. [Paras 7, 8, 9]

The disallowance was not sustainable; the Assessing Officer was directed to recompute the capital gains after allowing the claim in the light of the Tribunal's findings.

Final Conclusion: The Tribunal allowed the assessee's appeal and held that the payments made to occupants for vacating the property before sale were to be considered in computing capital gains. The Assessing Officer was directed to recompute the capital gains accordingly.

Disallowance u/s 43B - GST liability not debited to profit and loss account - No deduction claimed - Adjustment in return processing - Disallowance of unpaid GST liability u/s 43B sustained where the assessee had neither routed the amount through the profit and loss account nor claimed it as expenditure

HELD THAT: - The Tribunal found that the appellate order itself recorded that the assessee had not claimed the GST liability as an expense in the profit and loss account, yet the disallowance was confirmed on the general reasoning that GST formed part of turnover and ought to have been properly accounted for. Tribunal held that no legal basis was shown for invoking section 43B in such a situation.

It accepted the determinative principle that section 43B operates in relation to a deduction otherwise claimed, and where the unpaid GST was shown as liability and not claimed as expenditure, no disallowance was warranted. [Paras 9, 13, 14]

The disallowance of the unpaid GST liability under section 43B was directed to be deleted.

Final Conclusion: The Tribunal held that section 43B could not be invoked in respect of the unpaid GST liability since the assessee had not claimed that amount as expenditure and had not routed it through the profit and loss account. The appeal was accordingly allowed and the disallowance was deleted.

Deduction u/s 54F - Statutory time limit for purchase of residential house - Unregistered banakhat - Unexplained investment u/s 69 - Failure to examine bank statements and sources of funds

Deduction u/s 54F - Time limit for purchase of new residential house - Unregistered banakhat - AO disallowed the deduction on the ground that the assessee had neither invested the sale consideration within one year prior to the date of transfer nor within two years after the date of transfer, as stipulated u/s. 54F- HELD THAT: - The Tribunal held that section 54F prescribes a clear statutory time frame for purchase of the new residential house. On the facts recorded, the substantial payment for the new asset had been made more than one year prior to the transfer of the original asset, and the registered sale deed was executed beyond two years from such transfer. The Tribunal found that the decisions relied upon by the assessee were distinguishable, as those cases involved substantial compliance within the prescribed period or commencement of construction before transfer. It further held that the mere execution of an unregistered banakhat could not, by itself, be treated as completion of purchase within the statutory period. At the same time, since the flow of amounts and their linkage with the sale proceeds required detailed examination, the matter was restored for that limited examination. [Paras 8]

The order allowing deduction under section 54F was set aside, and the matter was restored to the Assessing Officer for examination of the flow of amounts; the Revenue's ground was allowed for statistical purposes.

Unexplained investment u/s 69 - Examination of bank statements and sources of funds - HELD THAT: - The Tribunal found that the AO had made the addition by comparing the investment in agricultural land with the sale consideration from one property, while the assessee's case was that the payments were made through bank accounts and were supported by documentary material. It noted that the assessment order did not reflect any detailed examination of those materials, and it also remained unclear whether all such evidence had been produced before the Assessing Officer or had been filed for the first time in appeal. In these circumstances, the Tribunal considered that the controversy required proper verification on facts rather than outright deletion. [Paras 8]

The deletion of the addition under section 69 was set aside, and the issue was restored to the Assessing Officer for fresh adjudication after examining the relevant evidence and granting opportunity of hearing; the Revenue's ground was allowed for statistical purposes.

Final Conclusion: The Tribunal held that the relief granted by the CIT(A) on deduction under section 54F and on the addition under section 69 could not be sustained on the existing record. Both issues were restored to the Assessing Officer for fresh examination, and the Revenue's appeal was allowed for statistical purposes.

Unexplained money - Cash deposits during demonetisation - Business sales receipts in specified bank notes

Whether Cash deposited in the assessee's bank account during the demonetisation period, stated to represent retail petrol pump sales received in specified bank notes, could not be treated as unexplained money merely because the assessee was not authorised to accept such notes? - HELD THAT: - The Tribunal noted that the sole basis on which the addition was sustained was that the deposits were made in specified bank notes which, according to the Revenue, the assessee as a private petrol dealer was not authorised to accept. At the same time, there was no dispute or finding that the deposits did not represent the assessee's business sales. The determinative principle applied was that, once the source of the cash stood admitted as sales arising from business activity, the deposits could not be assessed as unexplained money only because the assessee may have acted illegally in accepting specified bank notes. Any illegality in transacting in such notes would attract consequences under the law governing that act, but would not, by itself, justify treating the sales receipts as unexplained under the Income-tax Act. [Paras 6]

The addition made by treating the demonetisation-period cash deposits as unexplained was held untenable and was deleted.

Final Conclusion: The Tribunal allowed the appeal and deleted the addition. It held that admitted sales receipts deposited in the bank could not be treated as unexplained money solely on the ground that the assessee was not authorised to receive specified bank notes.

Exemption u/s. 10(10B) - ex-gratia compensation received by the assessee under the BSNL VRS-2019 scheme - HELD THAT: - The Tribunal found from the material on record that the BSNL VRS-2019 scheme was framed pursuant to the Government of India revival package and Union Cabinet approval, and that the compensation under the scheme was funded through Government budgetary support. On that basis, and having regard to the nature of the scheme, it held that notwithstanding its nomenclature as a VRS, it partook the character of a Government-approved retrenchment compensation scheme rather than an ordinary voluntary retirement scheme.

Following Harish Kumar [2025 (6) TMI 1622 - ITAT CHANDIGARH] and noting the absence of any contrary precedent from the Revenue, the Tribunal held the entire ex-gratia compensation exempt u/s 10(10B). [Paras 11, 12, 13]

The addition made by taxing the ex-gratia compensation was directed to be deleted, with consequential relief regarding the claim under section 10(10AA) to be granted in accordance with law if otherwise admissible.

Final Conclusion: The Tribunal condoned the delay in filing the first appeals, holding that the assessee had shown sufficient cause. On merits, it held that the ex-gratia received under BSNL VRS-2019 was exempt under section 10(10B), directed deletion of the addition, and left consequential relief under section 10(10AA) to be granted in accordance with law if otherwise eligible.

Disallowance of expenditures claimed due to non filing of audit report in form 10B at the time of filing income tax return - registration of assessee trust u/s. 12(AA) of the Act, since 2001 - Substantive justice over procedural technicalities - Exemption of registered educational trust

HELD THAT: - The Tribunal held that procedural requirements are meant to advance justice and not to defeat a lawful claim on technical grounds alone. It found that the assessee, a trust registered u/s 12AA and engaged in educational activities, could not be taxed on its entire receipts without adjustment of expenditure merely because the expenditure details were not reflected in the return and the audit report in Form 10B was filed belatedly.

Treating the lapse as procedural, the Tribunal exercised its implied authority to condone the delay in filing Form 10B and directed the AO to reconsider the matter after taking the belated audit report into account, with due observance of natural justice. [Paras 11, 12]

The issue was decided in favour of the assessee; the impugned order was set aside and the matter was remitted to the Assessing Officer for fresh consideration after taking Form 10B on record.

Final Conclusion: The Tribunal held that the assessee's lawful claim could not be rejected solely for delayed filing of Form 10B and omission to reflect expenditure in the return. The appeal was allowed for statistical purposes, with a remand to the Assessing Officer for fresh adjudication after considering the belated audit report.

Rejection of the customs appeals as time-barred without determining the actual date of communication of the original orders and without examining the assessee's plea - Statutory period prescribed under Section 128 -Limitation in customs appeals - Computation from date of communication - Failure to consider condonable delay - Non-speaking appellate order - HELD THAT: - The Tribunal held that computation of limitation for appeal must proceed from the actual date of communication of the original order. The appellate authority had recorded a uniform delay and rejected all three appeals as barred by time, but without discussing or evidencing the date of communication, and without disclosing the basis on which the delay was computed. It also failed to examine the appellant's specific contention that the appeals, though beyond the initial period, were filed within the further condonable period and that the last day fell on a public holiday. In the absence of any finding on these material aspects, the orders were held to be mechanical, non-speaking and contrary to principles of natural justice. Since the complete record necessary to verify the exact date of communication was not before the Tribunal, the matter required fresh consideration on limitation before any decision on merits. [Paras 9, 10, 11]

The impugned appellate orders were set aside and the matter was remanded to the Commissioner (Appeals) to ascertain the actual date of communication, recompute limitation in accordance with law, consider whether the delay fell within the condonable period, and, if so, admit and decide the appeals on merits after fair hearing.

Final Conclusion: The Tribunal held that the appellate authority could not reject the appeals as time-barred without first determining the date of communication of the original orders and considering the plea of condonable delay. The appeals were allowed by way of remand for fresh decision on limitation and, if maintainable, on merits.

Customs valuation of mixed consignments of used garments - Rejection of transaction value based on contemporaneous imports - Import of second-hand garments without DGFT licence - Confiscation for restricted imports - Proportionality of redemption fine and penalty.

Whether the rejection of the declared transaction value under Rule 12 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 and the consequential re-determination of value under Rule 5 of the said Rules are legally sustainable ? - HELD THAT: - The Tribunal held that acceptance of the enhanced value at the time of clearance did not bar the importer from challenging it. On merits, the declared value could not be rejected merely because it appeared lower than other imports, particularly when the department had not produced reliable material showing that the compared goods were identical or similar in quality, condition, quantity or commercial level, or that any additional consideration had flowed to the supplier. Since the imported goods were mixed used garments whose composition and quality inherently varied from consignment to consignment, adoption of a uniform benchmark value without establishing comparability was contrary to the valuation scheme. [Paras 8]

The declared transaction value was directed to be accepted and the enhancement of assessable value was set aside.

Restricted import of second-hand garments - Confiscation under Section 111(d) - Absence of misdeclaration - HELD THAT: - The Tribunal found that the procedural circular governing fumigation and allied requirements did not override the substantive restriction under the Foreign Trade Policy requiring a licence for import of second-hand goods other than capital goods. As no such licence had been produced, confiscation under Section 111(d) was justified. However, there was no evidence of misdeclaration as to description, quantity or value, and therefore confiscation under Section 111(m) could not be sustained. [Paras 9]

Confiscation was upheld only under Section 111(d), while confiscation under Section 111(m) was set aside.

Redemption fine - Penalty for import of restricted goods - Mens rea as mitigating factor - HELD THAT: - The Tribunal treated the absence of deliberate misdeclaration, suppression or fraudulent intent as a material mitigating circumstance. It further noted that the trade in mixed used clothing is heterogeneous, price-sensitive and not shown by any market study to yield substantial profit, and therefore redemption fine could not assume a punitive character detached from likely margin. At the same time, import of restricted goods without licence remained a statutory contravention warranting penalty, though only at a moderate level in the absence of mens rea. [Paras 10]

Redemption fine was reduced to 10% of the declared invoice value and penalty was sustained at 5% of the declared value.

Final Conclusion: The Tribunal partly allowed the appeals by setting aside the rejection of transaction value and accepting the declared value, while sustaining confiscation only on the ground that the imported second-hand garments were restricted goods imported without the requisite licence. The redemption fine and penalty were reduced to levels found fair and proportionate in the circumstances.

Preferential rate of duty - Denial of the benefit of Exemption Notification No. 46/2011-Cus and Notification No. 53/2011-Cus for preferential rate of duty on import of Tin Ingots - Certificate of origin under preferential trade agreement - Retroactive verification of origin - Benefit of preferential customs exemption -HELD THAT: - The Tribunal held that the decision relied on by the Revenue in Commissioner of Customs, Tuticorin Vs. M/s. Olam Enterprises India Pvt. Ltd. [2025 (9) TMI 1421 - MADRAS HIGH COURT] turned on serious discrepancies in the certificate itself and was therefore factually distinguishable. In the present case, the country of origin certificates constituted the prescribed documentary evidence of origin under the India-ASEAN PTA Rules, the India-Malaysia PTA Rules and the exemption notifications, and Customs was bound to proceed on that basis unless the certificates were invalidated through the statutory retroactive verification mechanism. The Tribunal further held that, during the relevant period, an importer was under no mandatory obligation to possess or establish the manner in which the regional value content requirement had been satisfied; that obligation arose only after insertion of Section 28DA and the coming into force of the CAROTAR Rules. Since the benefit was denied without following the procedure contemplated for questioning the certificate of origin, the impugned order could not stand. [Paras 10, 11]

The denial of exemption, with consequential demand, interest and penalty, was set aside and the appeal was allowed.

Final Conclusion: The Tribunal held that valid country of origin certificates could not be disregarded for denying preferential duty benefit unless the prescribed verification mechanism resulted in their invalidation. As that course had not been followed, and the importer was not shown to bear the later statutory obligation of possessing origin-working details during the relevant period, the impugned order was set aside and the appeal was allowed.

Classification of the imported parts of diesel engines and earth moving equipment - classified under CTH 8483 or not - liability to pay IGST at 28% under Schedule IV of Notification No. 01/2017-IT(RT) dated 28.06.2017 Or at 18% under Schedule III after insertion of Sl. No. 369A by Notification No. 35/2017-IT(RT) dated 13.10.2017 - HELD THAT: - The Tribunal found that there was no dispute as to tariff classification under Customs Tariff Heading 8483. The controversy was confined to the applicable notification entry for IGST. It held that by Notification No. 35/2017-IT(RT), plain shaft bearings were specifically inserted at Sl. No. 369A in Schedule III attracting 18% IGST, and the words "plain shaft bearings" were simultaneously omitted from Sl. No. 135 of Schedule IV. Once the imported goods fell within the specific Schedule III entry as plain shaft bearings, the later amendment to Schedule IV by Notification No. 43/2017 was held inapplicable to those goods. On that basis, the respondent was entitled to claim IGST at 18% under Sl. No. 369A. [Paras 9, 10]

The benefit of Sl. No. 369A as plain shaft bearings attracting IGST at 18% was rightly allowed, and the Revenue's challenge to the lower rate failed.

Final Conclusion: The Tribunal upheld the appellate order holding that the imported goods were covered by the specific entry for plain shaft bearings under Schedule III and were chargeable to IGST at 18%. The Revenue's appeal was accordingly dismissed.

Application seeking condonation of re-filing delay - delay of 166 days - prescribed period of limitation -Sufficient cause - HELD THAT:- Application for condonation of 166 day's delay in re-filing was dismissed on the ground that no sufficient cause had been shown, and consequently the appeal was dismissed.

Demand under Section 13(2) of the SARFAESI Act -Petition under Section 95 - barred by limitation - guarantee become unenforceable before the filing date - Continuing guarantee and limitation - Proof of financial debt and default against personal guarantor - Resolution professional's alleged conflict of interest

Continuing guarantee - Invocation on demand - Limitation for insolvency application against personal guarantor - HELD THAT: - The Appellate Tribunal held that where the deed of guarantee provides for invocation through a demand, the guarantor's liability becomes enforceable only upon such demand. Since the notice under Section 13(2) of the SARFAESI Act was admittedly issued on 27.02.2019 and default commenced on 27.04.2019, the application filed under Section 95 on 30.12.2021 was within time. The discrepancy between the date of invocation mentioned in the Section 95 application and the earlier demand notice relied on in the resolution professional's report did not alter the position that the application was within limitation. [Paras 7]

The plea of limitation was rejected and the Section 95 application was held to be within time.

Financial debt and default - Variation in claimed amount - Evidence of liability of personal guarantor - HELD THAT: - The Appellate Tribunal accepted that the creditor had established the debt and default through the acknowledgment and guarantee dated 06.01.2017, the corporate debtor's audited balance sheets recognising borrowings, and admission of the creditor's claim in the liquidation proceedings of the principal borrower. On that material, the difference in the amounts shown in the different proceedings was treated as self-explanatory and not destructive of the creditor's case at the admission stage. [Paras 7]

The challenge to admission on the ground of inconsistent debt figures was rejected.

Resolution professional's conflict of interest - Effect of bias allegation on admission order - HELD THAT: - The Appellate Tribunal held that, even assuming such an allegation were to survive, it could at best lead to substitution of the resolution professional and not to annulment of the order passed under Section 100. The Tribunal expressly declined to express any opinion on the merits of the allegation and left that aspect open. [Paras 7]

The allegation against the resolution professional was not accepted as a basis for interference with the admission order, while its merits were left open.

Final Conclusion: The appeal was dismissed. The Appellate Tribunal upheld the admission of the personal guarantor insolvency application, holding it to be within limitation, finding the financial debt and default sufficiently established, and rejecting the challenge to the order on the basis of the allegations made against the resolution professional.

Entitlement to the benefit of section 80 of the Finance Act, 1994 so as to avoid penalty under section 78, in view of prior payment of service tax - Pre-notice payment of service tax and interest - Immunity from penalty under self-ascertainment payment - Penalty under Section 78 - HELD THAT: - The Tribunal held that Section 73(3), read with Explanation 2, bars issuance of notice in respect of the amount already paid before service of notice and also excludes penalty on such payment. Relying on the interpretation placed by the Karnataka High Court in Commissioner Vs C. Ahead Info Technologies India P. Ltd.[2011 (9) TMI 965 - KARNATAKA HIGH COURT], the Tribunal found that once tax and interest were paid and the department did not dispute such prior payment, penal proceedings could not be continued for that amount. The decision cited by the department in Madhav Kamath Brothers And Co. Vs CCE Hubli [2015 (1) TMI 896 - KARNATAKA HIGH COURT] was not followed since, as noted by the Tribunal, it did not consider Section 73(3). On that basis, the appellant was held entitled to the benefit of Section 80 and the penalty was found unsustainable. [Paras 7, 8, 9]

The penalty imposed under Section 78 was set aside and the appeal was allowed to that extent with consequential relief.

Final Conclusion: The Tribunal held that, in view of the prior payment of service tax and interest before issuance of the show-cause notice, the appellant was entitled to the statutory protection claimed under Section 73(3) read with Section 80. Accordingly, the penalty alone was set aside and the appeal was allowed to that extent.

Liability of service tax on free services and warranty services - Warranty service valuation - Insurance commission under Business Auxiliary Service - Extended period of limitation.

Free services by authorised vehicle dealer - Warranty service valuation -HELD THAT: - The Tribunal held that the issue stood concluded by the earlier order [2021 (4) TMI 1004 - CESTAT BANGALORE] in the appellant's own case, where it had been found that no income was received for free service and warranty labour, the entries were only notional, and the corresponding cost stood embedded in the cost of the vehicle on which tax had already been discharged at the time of sale. In the absence of any separate consideration reimbursed to the dealer for such free services, no part of the dealer's margin could be artificially carved out and subjected to service tax. Following that settled position, the demand on free services and warranty services was held to be unsustainable. [Paras 5]

The demand of service tax on free services and warranty services was set aside.

Insurance commission under Business Auxiliary Service - Extended period of limitation - HELD THAT: - The Tribunal found that, in the appellant's own case [2010 (2) TMI 650 - CESTAT, BANGALORE], it had already been held that the commission received by MIBL/MUL from the insurance company and finance companies had suffered service tax, and the appellant, who only received a share of that commission, did not render any separate taxable service. The dealer merely facilitated the same arrangement and no distinct service under Business Auxiliary Service arose on the share of commission received by it. The Tribunal further held that, since the issue had been known to the Department from the earlier proceedings in the appellant's own case, invocation of the extended period of limitation was not justified. [Paras 5]

The demand of service tax on insurance commission was set aside, and the extended period was held to be unavailable.

Final Conclusion: The Tribunal held that no service tax was payable on free services and warranty services rendered by the appellant as authorised dealer, and that no separate service tax liability arose on the share of insurance and finance commission received by it. The impugned orders were therefore set aside and the appeals were allowed.

Refund claim for the unutilised amount of service tax paid under Reverse Charge Mechanism (RCM) - Due date for revising the ST-3 returns lapsed - Appeal against remand order - Seeking Fresh adjudication by original authority -HELD THAT: - The Tribunal noted that the Commissioner (Appeals), after recording observations on the refund claim, had not finally decided the claim but had remanded the matter to the original authority for fresh adjudication. In that situation, since the original order itself stood set aside and the matter was already restored for reconsideration, there was nothing substantive on record for the Tribunal to decide at that stage. The proper course was to leave the matter to be decided by the original authority in terms of the observations contained in the impugned order. [Paras 5]

The matter was remanded to the original authority for decision in accordance with the observations made by the Commissioner (Appeals).

Final Conclusion: The Tribunal held that, the Commissioner (Appeals) having already set aside the original order and remanded the matter, no issue survived for decision on merits before it. The refund claim was accordingly left to be freshly adjudicated by the original authority in terms of the observations made in the impugned order.

Validity of the criminal prosecution and summoning order under Sections 9 and 9AA -Effect of finality of appellate tribunal findings - Abuse of process of law -Central Excise duty evasion prosecution - HELD THAT: - The Court found that the criminal complaint was founded on the same allegations of excise duty evasion which had already been adjudicated departmentally. The adjudication order confirming the demand and penalty was allowed in appeal by the CESTAT, and the subsequent appeal filed before the High Court was dismissed as not maintainable, as a result of which the tribunal's order attained finality. In those circumstances, the very basis of the prosecution ceased to exist, and following the principle stated in K.L. Didwania Vs. Income Tax Officer [1993 (11) TMI 3 - SUPREME COURT], the criminal proceedings could not be sustained. [Paras 6, 7]

The complaint proceedings and the summoning order were quashed.

Final Conclusion: The High Court held that after the CESTAT had allowed the appeal and that order had attained finality, the prosecution founded on the same excise duty evasion allegations could not continue. The criminal complaint and consequential proceedings were therefore quashed.