India, Egypt to hold bilateral trade talks from tomorrow in Delhi;

Nitish Govt goes for major revamp of Cabinet; drops 10 and inducts 19 new Ministers;

WCO Regional Meet takes off in New Delhi;

Nath says tariff concessions to Pakistan under SAFTA may be withdrawn;

FM says India is able to contain inflationary expectations;

2008-TIOL-72-SC-IT.pdf + resident sc story.pdf

Pradip J Mehta Vs CIT, Ahmedabad (Dated : April 11, 2008)

Ordinary Resident: A person will become an ordinarily resident only if (a) he has been residing in nine out of ten preceding years; and (b) he has been in India for at least 730 days in the previous seven years

Board Circulars are binding: This Court in a catena of decisions, has held that the circulars issued by the Department are binding on the Department. See: K.P. Varghese v. ITO [ 2002-TIOL-128-SC-IT ], UCO Bank v. CIT, W.B. [(1999) 4 SCC 599], Collector of Central Excise Vadodra v. Dhiren Chemical Industries [ 2002-TIOL-83-SC-CX ], etc. In all these cases it has been held that the circulars issued under the Income Tax Act or Central Excise Act are binding on the Department. It may be noted that in the circulars issued by the Commissioner of West Bengal, reference has been made to the correspondence resting with the Ministry of Finance (Department of Revenue) letter No. 4/22/61-IT(AT), dated 25th November, 1961, wherein it is stated that the department's view has all along been that an individual is "not ordinarily resident" unless he satisfies both the conditions in Section 4B(a), i.e., (i) he must have been a resident in nine out of ten preceding years; and (ii) he must have been in India for more than two years in the preceding seven years. In the present case, the Circular issued by the Board in which the opinion of the Central Government the Ministry of Finance (Department of Revenue) letter No. 4/22/61-IT(AT), dated 25th November, 1961 has been noted, the interpretation similar to the one put by the various High Courts on Section 4B has been accepted to be the correct position..

It is well settled that when two interpretations are possible, then invariably, the Court would adopt the interpretation which is in favour of the tax  SC payer and against the Revenue.

Judicial decorum: Although several judgments were cited at the bar in the High Court, which were taken note of by the learned Judges of the Bench of the High Court, but without either recording its agreement or dissent  answered the two questions referred to it in favour of the Revenue. Judicial decorum, propriety and discipline required that the High Court should, especially in the event of its contra view or dissent, have discussed the judgments of the different High Courts and recorded its own reasons for its contra view. The judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Court, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons. : SUPREME COURT ;

2008-TIOL-216-HC-DEL-IT.pdf

CIT Vs Shri Tirath Ram Ahuja (HUF) (Dated : April 2, 2008 )

Assessment already completed under Section 143(3) of the Act cannot be reopened after a period of more than four years. The Assessing Officer served the notice under Section 148 of the Act later than 4 years. There was no deliberate concealment of the facts by the Assessee. The assessment was reopened on the basis of the subsequent information received from Municipal Corporation of Delhi , as such the proviso to Section 147 of the Act is not applicable and the provisions of Section 149 of the act will be applicable. Thus, in the light of the fact that the initiation by issuance of impugned notices was beyond the period of four years and the prerequisite conditions stipulated by Section 147 of the Act were not fulfilled, there was no case made out for upholding the proposed reassessment. Thus, the action of issuance of notice by the Assessing Officer is without jurisdiction and the assessment already completed under Section 143(3) of the Act cannot be reopened after a period of more than four years from the end of relevant assessment years. : DELHI HIGH COURT;

2008-TIOL-215-HC-AHM-IT.pdf

CIT Vs Dinesh Mills Ltd (Dated : February 19, 2008)

Income Tax - Sec 43B - Assessee earns interest on central excise duty refund ordered by the High Court after it was found that the duty collected by the Central Excise Department was not legal and proper - AO allows the deduction - CIT invokes revisionary powers u/s 263 - Since the interest payment was made on the direction of the High Court it cannot, by any stretch of imagination, held to be a statutory liability as the principal amount itself was a decretal amount and there was no question of the said amount having the characteristic of duty under the Excise Act; and the Provisions of Sec 43B of the Act can be made applicable only in a case where any tax, duty, cess, etc. of like nature are collected by an assessee and not paid to the account of the Government and yet a deduction is claimed against taxable income - Revenue's appeal disallowed : GUJARAT HIGH COURT;

CENTRAL EXCISE SECTION

2008-TIOL-567-CESTAT-MAD.pdf

CCE, Chennai Vs M/s Isex Fashions Pvt Ltd (Dated : January 18, 2008)

Duty paid before SCN – Machino Montell still applicable: The lower authorities found that the respondents had not paid the duty due on the impugned clearances owing to their bona fide belief that those goods were exempt. They had also followed the ratio of the decision of the Larger Bench of the Tribunal in Machino Montell (I) Ltd, (supra) in not imposing equal amount of penalty and not demanding interest due on the said amount paid before issue of SCN. No case law has been furnished to show that the ratio of the above decision has been unsettled. : CHENNAI CESTAT;

2008-TIOL-566-CESTAT-MUM.pdf

Cummins India Ltd Vs CCE, Pune-III (Dated : January 25, 2008)

Central Excise – cenvat credit – credit reversed by the appellants on the shortages of inputs noticed by them on physical verification of stock- demand of interest set aside. : MUMBAI CESTAT;

2008-TIOL-564-CESTAT-MAD.pdf

M/s Rukmani Pakkwell Traders Vs CCE, Trichy (Dated : January 3, 2008)

Central Excise – excisability – scented supari resulting from the activity of cracking betel nut, roasting and coating with oil – not excisable in view of the Apex court ruling in case of M/s Crane Betel Nut Powder works. : CHENNAI CESTAT;

2008-TIOL-563-CESTAT-DEL.pdf

Shree Prithvi Steels Rolling Mills Pvt Ltd Vs CCE, Jaipur (Dated : December 11, 2007)

Special Audit u/s 14A of the CEA'44 – Commissioner's order is not an appealable one, hence appeal not maintainable before Tribunal – Appeal rejected.

Pari materia provisions in Section 142(2A) of the Income Tax Act, 1961 in which regard SC in Rajesh Kumar & Othrs 2006 (287) ITR 91 (S.C.) has held that directions issued thereunder is not an appealable order. : DELHI CESTAT;

SERVICE TAX SECTION

2008-TIOL-568-CESTAT-DEL.pdf

Rajeev Electrical Works Vs CCE, Chandigarh (Dated : December 17, 2007)

ST - Erection, commissioning & installation service - Assessee is an electrical contractor - Revenue demands tax on the ground that the assessee's work is a part of civil work and the same is a taxable service - Since electrical work before it was covered under taxable service from July 16, 2005, cannot be said to be a part of civil work, Revenue demand not sustainable. : DELHI CESTAT;

CUSTOMS SECTION

2008-TIOL-565-CESTAT-MUM.pdf

CC (Import), Nhava Sheva Vs M/s Motor Industries Co Ltd (Dated : December 14, 2007)

Customs – refund of excess duty paid without challenging the assessment of Bill of Entry - The respondent paid the duty on filing of the Bill of Entry without checking the receipt of the goods - Subsequently, when the goods were received short, the appellant sought the refund of the excess amount of duty paid by them - the Commissioner (Appeals) has come to the correct conclusion that refund is admissible – no merit in revenue's appeal. :MUMBAI CESTAT;

guest column.pdf

Annual Supplement to FTP : Mr Kamal Nath deserves a pat!

cag story.pdf

Income Tax exemption to infrastructure sectors : CAG pinpoints gaping holes and calls for better control mechanism;

sivakr on stps.pdf

Are STPs entitled to obtain refund of Cenvat Credit?

TRAI story.pdf

TRAI wants DoT to license Mobile Number Portability Clearing House Administrator through competitive bidding;

RBI Notifi for Mandatory E Payment.pdf

Income Tax mandatory e-payment by Coroprate from April 1, 2008 : RBI issues direction to banks;

mbuzz519.pdf

Satyam to set up new Technology & Learning Center in Geelong;

mbuzz518.pdf

Govt with Commonwealth Forum hosting seminar on 'inclusive cities';

mbuzz517.pdf

IMFC reforms : FM hails it as major step towards greater say for emerging economies;

mbuzz516.pdf

WCO regional meet all set to take off tomorrow in National Capital;

mbuzz515.pdf

New Pharma Policy also focuses on growth of pharma sector : Paswan;