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Petro price hike : Govt dithering against stiff resistance from Left; Selection of CBDT Members : Board asks all CCITs/DGITs to update ACR dossiers ; WB lowers China's growth rate to 9.6% for current year; Vice President says 'whips' are now 'mute spectators' in House; Dinesh Rai joins as Secretary of Ministry of Small & Medium Enterprises; Empowered Group of Ministers on SEZ to discuss proposal to remove 5000 ha cap for multi-product SEZs; FM urges private sector to support education sector to make India knowledge-driven society; |
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| Dear Member, Sending you following files. |
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CBDT extends TDS/TCS quarterly return date ending Sept 30th to Feb 29, 2008; CASE LAWS 2008-TIOL-69-HC-P&H-IT-LB.pdf + HC LB Story.pdf Income Tax - Business expenditure - Sec 37(1) - Assessee pays damages for breach of a contract - claims deduction - AO allows but later issues notice u/s 148 in view of a High Court order that any sum paid for breach of law is to be disallowed - Reference to HC - Division Bench finds the expenditure compensatory in nature and allows it - Issue referred to Full Bench - Paying damages for non-fulfilment of contractual obligations is a part of normal business and since it is compensatory in nature it is allowable expenditure - however, any sum incurred as part of statutory penalty for infraction of law cannot be treated as an expenditure incurred for the purposes of business and cannot be allowed u/s 37(1) and in case of a composite payment, the AO needs to split the sum and allow only that portion which is compensatory in nature - Assessee's appeal allowed Section 37(1) - The word 'wholly' refers to the quantum of expenditure whereas the word 'exclusively' refers to the motive and objective of the expenditure - The expression 'wholly and exclusively' does not connote 'necessarily' - What is important for the test of allowability of an expenditure as a deduction is whether an expenditure has been incurred with the sole motive of furthering the business interest unalloyed with any other consideration and such an expenditure was ligitimised by commercial expendiency. : P & H HIGH COURT LARGER BENCH; Income Tax - Assessee gets two plots in partial partion of Family (HUF) - Cost of acquisition for capital gains - Valuation by registered valuer - Assessee claims cost of acquisiton as on 1st January, 1964 - Cost worked out on the basis of Registered Valuer's report - AO finds the same valuer valued property for AY 1971-72 - Revenue accepts the valuer's report - Assessee asked to explain the discrepancy - No reply filed - AO finalises valuation on the basis of 1971 valuation report - Appeal before Tribuna for taking value decided for 1964 - No valid ground for insisting on basing valuation at 1964 rates - Assessee's appeal dismissed : DELHI HIGH COURT ; Income Tax - Survey u/s 133A - Assessee served a notice u/s 142(1) - Return filed - Return processed and additions made - Sec 124 - AO's jurisdiction challenged - CIT(A) did not agree with the assessee - Tribunal also set aside the appeal - Sec 124(3)(b) clearly shows that the AO's jurisiction cannot be questioned after the expiry of one month from the date of notice served on him u/s 142(1) and Sec 124(4) further states that once the jurisdiction is questioned within time, the issue is to be referred to the CCIT or DGIT - Assessee's appeal dismissed: P & H HIGH COURT ; Income Tax - Deduction u/s 80M - Assessee-company files return that includes dividend income - Since net profit of the assessee was minimal, no dividend declared during the FY - When the due date for filing return approached, the assessee distributed the dividend income that it had earned in the previous year - AO disallows on the ground that deduction for distributed dividend income cannot be claimed from the income of the present year for the previous year - CIT(A) and Tribunal turn down Revenue's appeal - The only intention of the legislature while enacting this section was to allow deduction only if it is redistributed as dividend income to its shareholders and this section provides that the said distribution to be made before the due date of the filing of the returns - Since the assessee meets this condition, it is allowable deduction - Revenue's appeal dismissed: BOMBAY HIGH COURT ; |
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Central Excise -Omission of Section 3A – by virtue of section 38A , pending proceedings not to lapse – But now Revenue loses' it's refund case : P & H HIGH COURT; 2008-TIOL-70-HC-DEL-CX.pdf + bail story.pdf Bail is the rule; Jail is the exception. In the criminal jurisprudence prevailing in all common law countries, every person is presumed to be innocent until proved to the contrary. The consequence that logically follows is that an accused ought not to be detained or imprisoned, that the personal liberty even of an accused should not be interfered with, until he is convicted by due process of law. Several offences are notified as being bailable and even in the remainder, that is non- bailable offences, the accused can be enlarged on bail by orders of the Court. Bail is the rule; Jail is the exception. Investigation to be complete within sixty days: The presumption of the innocence of an accused can easily be defeated if the investigation is not constrained by time, is open-ended and protracted. It is for this reason that the legislature has wisely provided that the investigation of an accused should reach its culmination by the filing of a Chargesheet within sixty days, or ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. If not completed within sixty days - the accused has a statutory right to be released on bail: The effect of Section 167(2) of the Cr.PC is that where the investigation is not concluded even within the period of sixty days or ninety days, as the case may be, the accused has a statutory right to be released on bail if he is prepared to and does furnish bail. In other words, his personal liberty must be restored forthwith. However, there is always a clear and present danger of an accused absconding or rendering himself untraceable with a view to frustrating the Trial. It is for this reason that he is required to comply with the terms of bail. When law prescribes the furnishing of sound sureties it does so not by way of penalty but entirely to ensure that an accused participates in the Trial; so that he can be imprisoned or made to serve his sentence if he is eventually found guilty of the offences for which he stands charged. Even within the period, it is not necessary that an accused must perforce languish in jail: However, even within the period of sixty days or ninety days, as the case may be, it is not necessary that an accused must perforce languish in jail. Chapter-XXXIII of the Cr.PC enables him to apply for bail even during the currency of the investigation. The presumption of innocence for this period is not totally eclipsed but is in a penumbral state. When any accused is brought before Court his personal liberty can be restored provided adequate safeguards for ensuring his presence at the Trial are put in place, in the form of bail bonds, and sound sureties etc. and he does not interfere with or impede the investigation. The exception is in the case of a person's alleged involvement in a heinous offence punishable with death or imprisonment for life, in which case such person shall not be released if there appears reasonable grounds for believing in his involvement. Presumption of innocence is fortified and strengthened in the event that the investigation is not completed within the prescribed period: It seems to us that the presumption of innocence is fortified and strengthened in the event that the investigation is not completed within the prescribed period. Since Section 167(2) employs the words shall be released on bail if he is prepared to and does furnish bail, no discretion is available to the Court at this juncture; the only discretion is for the fixation of terms (being synonymous to conditions) calculated only to ensure the availability of the accused at the time of Trial. 11. On the strength of these decisions it is palpably clear that Section 167 is a pandect of its own; it operates independently of any other provision of the Cr.PC until bail is granted. It is only at this stage that bail will be deemed to have been granted under Chapter-XXXIII, that is, for the purposes of furnishing of bail bonds for modification of the terms on which bail has been granted, for cancellation of bail etc.-etc. Section 167 would be rendered otiose if the grant of bail on its invocation would have to meticulously meet all the provisions in Chapter-XXXIII. There would be no reason, purpose or justification for its separate existence. The purpose of the deeming clause is to avoid prolixity in prescribing these other provisions in two places within the Cr.PC . It is for this reason that bail granted under Section 167(2) is referred to as an indefeasible right and is commonly termed as Bail-on-Default. Personal liberty of a citizen is a Fundamental Right We must perforce keep in perspective the fact that the personal liberty of a citizen is a Fundamental Right guaranteed under the Constitution of India. Legal punctilio and procedure cannot defeat or delay such a right, especially when arguments have been addressed threadbare. : DELHI HIGH COURT ; 2008-TIOL-185-CESTAT-MUM.pdf + vip story.pdf Quantity discount if not passed to dealers includible in Assessable value - DGCEI wins VIP case before Tribunal : MUMBAI CESTAT; Central excise - Excisability of electronic weighing machine - Since it is erected by embedding it into ground - immovable property - prima facie not excisable - Pre-deposit waived off : DELHI CESTAT; Central Excise – Cenvat Credit on telephones – revenue seeks denial of credit as they are mobile phones – appellant contend that the phones are landline phones installed at their corporate office – matter remanded to decide the dispute afresh : CHENNAI CESTAT;
SERVICE TAX SECTION ST - Maintenance & Repair Service - Demand raised for period prior to 1.7.03 when the service was notified as a taxable service - Since SCN does not specify the basis of calculation of the demand and also does not clearly invoked extended period, no demand is sustainable : KOLKATA CESTAT; ST - Cenvat Credit - Assessee avails credit for service tax paid by input service provider on port and space charges - Since Revenue admits that the tax was paid, credit prima facie cannot be denied - Pre-deposit and penalty stayed : DELHI CESTAT;
CUSTOMS SECTION Customs – goods imported under EPCG at concessional rate of duty at 5% - duty debited from credit earned under Target Plus scheme – no double benefit as contended by the revenue – duty to be debited is only effective rate under Target Plus Scheme : CHENNAI CESTAT; |
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FM inaugurates Chennai LTU; Clarification of Para 10 of Circular No. 58/2004-Cus. Dated : 21.10.2004 - Reg.; Govt needs to grant wealth tax exemption to stimulate growth in gems and jewellery sector ; Dear FM, Please tax me! SEBI Circular for ECS in Public.pdf Extending number of centers where refund shall be made through ECS in public/rights issues; CBDT extends due date for filing TDS return ending Sept 30 to Feb 29; Satyam makes tele-medicine available to rural India; Reliance lnfratel files Draft Red Herring prospectus with SEBI; Chennai LTU collects more than Rs 100 Cr; 25 units join it ; |
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