Vivek Jalan is a Chartered Accountant & a qualified L.LM (Constitutional Law) & LL.B. He is the Chairman of The Fiscal Affairs An Taxation Committee of The Bengal Chamber of Commerce and Industry. He is the Chairperson of The Confederation of Indian Industries (CII)- Core Group on Indirect Tax – EAC-ER. In these capacities he has made various representations before the Hon’ble Minister of Finance in Centre and States as well as CBDT/CBIC/State Commissioners on the various issues faced by Taxpayers in Indirect and Direct Taxes. He is a regular Columnist and guest expert in Economic Times, Times of India, Money Control, Live mint, CNBC, Hindustan Times, Zee Business, Financial Express, News18 and other dailies and business magazines like Dalal Street Journal, Business Today, etc. He is also a guest expert on Taxation matters in India TV, ABP, All India Radio and other media platforms. He is the Editor of Weekly Bulletin TAX CONNECT, a publication on Indirect Taxes and Direct Taxes which reaches more than 70000 professionals. He is also a visiting faculty for Taxes in The Confederation of Indian Industries (CII), The Institute Of Chartered Accountants of India, Institute of Cost Accountants of India, Indian Institute of Foreign Trade, The Bengal Chamber of Commerce and Industry, The Indian Chamber of Commerce and other Business Forums. He has also delivered Lectures at various Government Taxation Forums including the Income Tax Dept., CGST & SGST Departments across the country. He has trained GST and Income Tax Officers in the various Trade & Industry issues in Tax Laws. He has worked as a Finance Manager in ITC Ltd. and Chief Compliance Officer with IntraSoft Technologies Ltd. He has 20 years of experience in the field of Indirect & Direct Taxation. He was also an All India Rank holder in CA Final Examination conducted by the Institute of Chartered Accountants of India. His Books on taxation include the following – • COMMENTARY ON UNION BUDGET 2023 – Feb 2023 • HOW TO HANDLE GST LITIGATION – Sep 2022 • HANDBOOK ON GST 2022 – Aug 2022 • COMMENTARY ON UNION BUDGET 2022 – Feb 2022 • GST PLEADING & PRACTICE – Aug 2021 BESTSELLER • COMMENTARY ON UNION BUDGET 2021 – Feb 2021 • SECTION-WISE COMPENDIUM ON GST – Oct 2020 • INTEGRATED APPROACH TO GST E-INVOICE, E-WAYBILL & RETURN E-FILING – Oct 2020 ... He is a regular speaker at various professional forums on the various key areas in Indirect & Direct Taxes.
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Issue Id: 118688
Not very often does a justice starts a judgement with “the case is very interesting” and thereafter praising the writ petitioner. In the ...
Read Full Issue Goods and Services Tax - GST
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Binding Tribunal Orders Require Assessing Officers to Follow Taxability Findings Unless Stayed or Overturned Before Initiating Withholding-Default Proceedings.
Assessing Officers must follow Income Tax Appellate Tribunal determinations unless their operation has been suspended by a competent court. Where the Tribunal has determined that a non-resident has no permanent establishment in India and that particular fees are not taxable, the payer cannot be treated as in default for failure to withhold tax. The withholding obligation arises only where payments are chargeable to tax in India. (AI Summary)
Income Tax
AMP expense benchmarking cannot be separated when TNMM includes those costs and establishes arm's-length international transactions.
Where AMP expenses form part of operating costs and international transactions have been tested as arm's length under TNMM, separate benchmarking of AMP as an independent international transaction is not supported. Segregating AMP through an additional cost-plus analysis or bright-line approach may distort the operating-margin analysis. A receivables adjustment requires verification whether working-capital adjustments already account for the relevant impact. (AI Summary)
Income Tax
Trademark licensing fees remain revenue expenditure when users acquire contractual use without ownership or enduring proprietary rights.
Recurring trademark fees paid under licences are characterised as revenue expenditure when the user receives only contractual use and no ownership, proprietary interest, or enduring asset. Payments for trademarks or technical know-how are similarly treated as revenue where ownership remains with the licensor. The same criterion distinguishes capital receipts from taxable income: incentives or subsidies directed to capital purposes are capital receipts. Trademark licensing costs may qualify for business-expenditure deduction where incurred for business without transfer of proprietary rights. (AI Summary)
Income Tax
Faceless reassessment and retrospective validation remain contested where jurisdictional officer notices bypass automated allocation requirements.
Section 147A, retrospectively inserted with effect from 1 April 2021, purports to validate reassessment notices issued by Jurisdictional Assessing Officers. Through a non-obstante clause, it overrides section 151A and judicial pronouncements, and treats the Assessing Officer for sections 148 and 148A as the jurisdictional officer rather than the National Faceless Assessment Centre. The central issue is whether prescribed faceless allocation is mandatory and whether retrospective validation can displace that procedure. (AI Summary)
Income Tax
Online-game winnings TDS requires deduction on net winnings at the prescribed rate, including where the recipient has not filed returns.
Tax deduction at source on online-game winnings under section 194BA applies from 1 April 2023. The person responsible for paying such winnings must deduct tax at 30% on net winnings after accounting for entry fees where applicable. Section 194BA is excluded from the higher-deduction regime for non-filers under section 206AB, so the prescribed 30% deduction applies even where the recipient has not furnished an income-tax return. (AI Summary)
Income Tax
Marginal relief under the new tax regime limits tax on qualifying income above the rebate threshold.
Marginal relief is proposed for resident individuals under the new tax regime whose total income exceeds Rs. 7 lakh. Tax payable must not exceed the income exceeding that threshold. Tax is computed before rebate, and the excess income over Rs. 7 lakh is determined. Where pre-rebate tax exceeds the excess income, the Section 87A rebate equals the difference; where the difference is negative, no rebate is allowed. (AI Summary)
Income Tax
Verified case-law citations remain essential because unverified AI-generated authorities can undermine judicial and quasi-judicial decision-making.
A zero-tolerance approach is identified under which fabricated or non-existent AI-generated precedents cannot be treated as valid legal authority, even where the false material did not directly influence reasoning. Rigorous verification of case law is an essential responsibility of adjudicating officers. AI-assisted tools may support legal research but cannot replace human diligence in confirming the authenticity of authorities relied upon. (AI Summary)
Goods and Services Tax - GST
Coercive GST recovery during investigations is impermissible; tax officers must follow due process while protecting normal business operations.
GST investigation powers are confined to fact-finding and do not permit coercive tax recovery during search, inspection, or investigation. Where input tax credit is questioned because a supplier's registration was subsequently cancelled, liability cannot be compelled through pressure while the investigation remains pending. Recovery must follow due process, and enforcement action must not unduly disrupt normal business activities. (AI Summary)
Goods and Services Tax - GST
Inverted duty refunds remain available where higher-rated ancillary inputs create accumulated credit despite identical principal input and output goods.
Inverted-duty refund eligibility under GST depends on accumulated input tax credit arising from inputs taxed at rates higher than the output supply. Identical principal input and output goods taxed at the same rate do not by themselves bar refund where higher-rated ancillary inputs are used in business. Packaging materials, labels, cartons and plastic containers may qualify as inputs when necessary for marketing or supplying finished goods. Claims should demonstrate the rate differential, business use of such inputs and resulting credit accumulation. (AI Summary)
Goods and Services Tax - GST
Appeals against NIL-demand GST orders now remain available despite prior voluntary payment and zero-value portal entries.
GST appellate rights permit taxpayers to contest liability despite voluntary payment at the show-cause-notice stage without admission of liability. NIL-demand adjudication orders had generated zero-value Demand and Collection Register entries, and portal validation prevented filing of Form GST APL 01 where the disputed amount exceeded the recorded demand. From 7 September 2026, the validation restricting appeals against NIL or zero-demand orders has been removed, allowing appeals where a liability dispute remains and reducing dependence on rectification orders. (AI Summary)
Goods and Services Tax - GST
Input tax credit for leased construction turns on whether the property is built on own account under GST.
Input tax credit on construction for leasing depends on whether the property is constructed on own account. Construction intended for sale, lease or licence forms part of a taxable commercial supply and differs from construction for personal use or premises from which business is directly carried on. Credit claims for leased properties require application of this distinction before the blocked-credit provision is invoked. This approach supports creditability of construction inputs where completed property is intended for leasing and promotes tax neutrality. (AI Summary)
Goods and Services Tax - GST
Input tax credit reversal for duty credit scrip sales applies before exclusion; fraud proceedings require material evidence.
The exclusion of duty credit scrips from exempt supplies under Explanation 1 to Rule 43 operates prospectively and does not extend the benefit to prior periods. Accordingly, common ITC attributable to sales of MEIS or RoDTEP scrips up to June 2022 requires reversal, whereas ITC directly linked to manufacturing activities is not subject to such reversal. Fraud-based tax proceedings require material evidence of fraud, wilful misstatement, or intentional suppression of facts to evade tax. (AI Summary)
Goods and Services Tax - GST
Vested appellate rights protect GST appellants from retrospective pre-deposit obligations in penalty-only orders arising before amendment.
The substituted proviso to section 107(6) of the CGST Act, effective from 1 October 2025, extends the pre-deposit requirement to appeals against penalty-only orders. The right of appeal is treated as a substantive right vesting upon issuance of the show-cause notice. Accordingly, where the show-cause notice preceded 1 October 2025, subsequent proceedings or a later penalty order do not attract the amended pre-deposit condition. The expanded requirement applies prospectively to proceedings initiated on or after its effective date. (AI Summary)
Goods and Services Tax - GST
Input tax credit eligibility depends on supplier tax remittance, requiring purchaser diligence, recovery efforts, and technology-based compliance tracking.
Input tax credit under section 16(2)(c) of the CGST Act is conditioned on actual remittance of tax to the Government by the supplying person. A purchaser who has paid the tax component to the supplier may consequently be denied credit where the supplier defaults in payment. Purchaser concerns require revenue authorities to focus recovery efforts on defaulting suppliers and to make appropriate enquiries before placing the burden on purchasers. Technology-driven mechanisms for tracking supplier compliance are identified as necessary to reduce disproportionate hardship to genuine purchasers. (AI Summary)
Goods and Services Tax - GST
Standalone GST interest refunds do not require unjust-enrichment certification after the principal refund has already been sanctioned.
Standalone interest claims on delayed GST refunds are treated as outside the unjust-enrichment certification requirement where the principal tax refund has already been sanctioned and credited. Rule 89(2)(m) addresses claims for refund of tax together with interest and requires confirmation that the incidence has not been passed to another person. Separately claimed interest is compensation for delayed payment and income of the taxpayer, not an amount capable of being passed on to consumers. (AI Summary)
Goods and Services Tax - GST
Transitional tax credits remain governed by pre-GST law, limiting GST adjudication and preventing duplicative retrospective taxation.
Transitional credits arising under VAT or CENVAT law cannot be reopened or adjudicated by GST authorities merely because they were carried forward through TRAN-1. Eligibility and validity must be assessed under the law in force when the credit accrued. Section 142(11)(a) applies the test of whether tax was leviable under the existing law, not whether it was actually paid. Non-payment under service tax, VAT, or central excise does not by itself permit retrospective GST on the same transaction, thereby preventing duplication of tax. (AI Summary)
Goods and Services Tax - GST
Mining GST compliance now requires reverse-charge reporting on mineral leasing and heightened scrutiny of unreported mineral transactions.
GST enforcement in mining is strengthened through coordination between State Mining Departments and CGST field formations, including nodal officers, information sharing, joint reviews, and action where evasion is indicated. Illegal mining, suppressed supplies, non-registration, undervaluation, and short payment may invite GST scrutiny and related Income Tax proceedings. Royalty is contractual consideration under mining leases, and mine leasing with royalty is treated as licensing of rights to use minerals, taxable under the Reverse Charge Mechanism with liability on the mining lessee. (AI Summary)
Goods and Services Tax - GST
Amended third-party search assessment rules apply when related seized material and notice arise after the statutory amendment.
Section 153C permits proceedings against a person other than the searched person when books, documents or assets found in a search pertain to that other person and indicate undisclosed income or assets. The Finance Act 2015 amendment replacing the "belongs to" test with "pertains to" is presented as applicable where the search preceded 1 June 2015 but the material was seized by the non-searched person's Assessing Officer after the amendment and notice was later issued. The article supports a purposive interpretation that preserves the amendment's expanded scope. (AI Summary)
Income Tax
Transfer pricing tolerance range applies where a single comparable determines arm's length price and the transaction falls within the limit.
Transfer pricing tolerance range under the second proviso to section 92C(2) deems the actual transaction price to be the arm's length price where its variation from the determined arm's length price is within the notified limit. The expression "so determined" covers an arm's length price determined under both the main provision and the first proviso. The tolerance benefit therefore applies whether the arm's length price arises from multiple comparable prices or from a single remaining comparable in the comparable set. (AI Summary)
Income Tax
Agricultural land outside prescribed urban limits remains excluded from capital assets despite no cultivation or resale-profit intention.
Agricultural land outside the prescribed municipal or cantonment limits and aerial-distance criteria is excluded from capital assets under section 2(14)(iii). Agricultural activity or agricultural income is not a stated condition where revenue records classify the land as agricultural, no conversion to non-agricultural use has occurred, and location requirements are satisfied. Profit on transfer of such land is presented as outside income for tax purposes rather than exempt income and as not requiring disclosure in the income-tax return. (AI Summary)
Income Tax
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09 Aug 2023 
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