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Committee of Secretaries recommends excise duty cut on steel products + partial ban on exports; GoM to take final look late evening; Committee of Secretaries recommends excise duty cut on steel products + partial ban on exports; GoM to take final look late evening; 8 Addl Judges appointed to Bombay HC + Justice P B Majumdar transferred from Rajasthan HC to Bombay HC + Shri Meenakshi Sundaram appointed as Addl Judge in Madras HC + Smt M C Hari Rani is new Addl Judge in Kerala HC, CBEC Panel headed by Chairman wraps up interview for COIN postings; |
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| Dear Member, Sending the following files: |
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2008-TIOL-75-SC-IT.pdf + penalty story.pdf Sudarshan Silks & Sarees Vs CIT, Karnataka (Dated : April 11, 2008) Penalty - no penalty is leviable when unproved income is offered to purchase peace; In the present case, the question of law referred to the High Court for its opinion was, as to whether the Tribunal was right in upholding the findings of the CIT (Appeals) in cancelling the penalty levied under section 271(1)(c). Question as to perversity of the findings recorded by the Tribunal on facts was neither raised nor referred to the High Court for its opinion. The Tribunal is the final court of fact. The decision of the Tribunal on the facts can be gone into by the High Court in the reference jurisdiction only if a question has been referred to it which says that the finding arrived at by the Tribunal on the facts is perverse, in the sense that no reasonable person could have taken such a view. In reference jurisdiction, the High Court can answer the question of law referred to it and it is only when a finding of fact recorded by the Tribunal is challenged on the ground of perversity, in the sense set out above, that a question of law can be said to arise. Since the frame of the question was not as to whether the findings recorded by the Tribunal on facts were perverse, the High Court was precluded from entering into any discussion regarding the perversity of the finding of fact recorded by the Tribunal. : SUPREME COURT; Development Consultants Pvt Ltd Vs DCIT, Kolkata (Dated : April 4, 2008) Income Tax - International Transactions - Transfer Pricing - Sec 92 to 92F - Asseessee, registered in India, has three related subsidiaries and associated enterprises overseas - Arm's length price - Since Assessee fails to furnish accountant's report u/s 92E for the AY 2003-04, tranfer pricing adjustments made - Similar adjustments made even for AY 2004-05 despite the report being filed - CIT(A) ignores the documents filed by the assessee and confirms the adjustments - Since the detailed analysis performed by the assessee to compute the arm's length price by taking into account the various parameters like the 'tested party', resale price method and the transaction-by-transaction method not controverted by the Revenue, the TP adjustments made by the AO and confirmed by the CIT(A) are not sustainable :KOLKATA ITAT; AD, Dehradun Vs M/s Western Geco International Ltd (Dated : February 21, 2008) Income Tax - Assessees were expatriate employees of their agent / employer which filed returns on their behalf - Assessees had only salary income, subject to TDS provisions u/s 192 - Assessees claim deduction u/s 10(10CC) for tax paid by their employer on their salary - AO disallows and makes additions by resorting to multiple grossing in place of single grossing - In view of Special Bench decision ( 2007-TIOL-442-ITAT-DEL-SB ) the additional liability deleted Interest u/s 234B - AO levies interest for non-deposit of advance tax - Since the shortfall of tax deposited was more than 10%, the Revenue insisted on recovering interest - Since the assessees had only salary income which was deductible to tax at source, and there was no advance tax liability on the employees, no interest u/s 234B can be charged in a scenario where there is no advance tax liability - Revenue's appeal dismissed : DELHI ITAT; M/s Nuchem Ltd Vs DCIT, Faridabad (Dated : February 22, 2008) Income Tax - cross appeals related to different assessment years - disallowance of expenditure - Penal interest is not allowable as a deduction; that the proportionate premium payable on the debentures at the time of redemption is a crystallized and ascertained liability in the year of account. : DELHI ITAT; |
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C P Goel is posted as OSD to Member (P&V) Shubh Chintan, Addl Commissioner is now OSD to CBEC Chairman;
Gem Spinners (India) Ltd Vs CCE, Chennai (Dated : January 22, 2008) Central Excise -Manufacture - it is held that the process in which cotton waste was generated in the EoU during the period of dispute did not amount to manufacture within the meaning of this term defined under Section 2(f) of the Central Excise Act and consequently the commodity was not excisable. In this factual scenario, considerations like specific mention of the item in the Central Excise Tariff Act Schedule, marketability etc. are irrelevant. In the result, the assessee's appeal is allowed and the Revenue's appeal is dismissed. : CHENNAI CESTAT; CCE, Chennai Vs M/s Meridian Pharmaceuticals (Dated : January 22, 2008) P or P Medicines abatement for breakages, interest on receivables allowed : CHENNAI CESTAT; CCE, Mumbai III Vs Crompton Greaves Ltd (Dated : March 7, 2008) Transformer oil (input) supplied separately along with transformer (not contained in the transformer) as there is nothing to controvert the stand taken by the assessee that they had included the value of transformer oil in the transformer cleared by them, Cenvat Credit available Revenue appeal rejected. : MUMBAI CESTAT;
SERVICE TAX SECTION M/s Tycoon Events & Promotions Pvt Ltd Vs CCE, Chandigarh (Dated : January 7, 2008) Service Tax penalty Commissioner imposed penalty under Section 76 @ Rs 100/- per day in the revision order under Section 84 -as the new levy was introduced in the year 2002 and the default was for the period 2002 to 2003, the appellant deserves a lenient view - the appellant paid the Service Tax along with interest prior to 2004, therefore, the enhancement of penalty is not sustainable hence set aside: CHENNAI CESTAT; M/s Pink City Communications Vs CST, Delhi III (Dated : January 18, 2008) ST - Assessee sells sim cards, mobile connections and recharge coupons on behalf of Airtel - Revenue levies tax on commission earned - Demand relates to period July, 2003 to March, 2005 - Assessee pays tax with interest and intends to avail amnesty scheme - Since the registration was taken in December 2004, it cannot be said that the amnesty scheme valid till Nov, 2005 was availed - penalty upheld :DELHI CESTAT;
CUSTOMS SECTION NOTIFICATION Ban on export of cement not to apply to exports from DTA to SEZ; CASE LAWS 2008-TIOL-74-SC-CUS.pdf + cus sc story.pdf CC, Mumbai Vs M/s J D Orgochem Ltd (Dated : April 10, 2008) Customs- Valuation: Rule 5 provides for determination of the transaction value having regard to the importation of identical goods into India at the same time. Rule 6 allows for the transaction value to be determined on the value of similar goods imported into India at the same time as the subject goods. Where, however, there are no contemporaneous imports, the value is to be determined in terms of Rule 7 by a process of deduction as envisaged therein. Yet again an alternative mode for determination of the transaction value has been provided in Rule 7A . If none of the aforementioned provisions can be taken recourse to, the authority may determine the transaction value in terms of Rule 8 of the Rules, using reasonable means consistent with the principles and general provisions of the rules and sub- section (1) of Section 14 of the Act and on the basis of data available in India . Recourse to the aforementioned Rules are to be resorted to if the transaction value cannot be determined in terms of sub-section (1) of Section 14 of the Act. Undervaluation has to be proved: before rejecting the transaction value as incorrect or unacceptable, the Department has to find out whether there are any imports of identical goods or similar goods at a higher price at around the same time. Unless the evidence is gathered in that regard, the question of importing Section 14( 1A ) does not arise. In the absence of such evidence, invoice price has to be accepted as the transaction value. Invoice is the evidence of value. Casting suspicion on invoice produced by the importer is not sufficient to reject it as evidence of value of imported goods. Under- valuation has to be proved. If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer : SUPREME COURT; CC (General) Mumbai Vs Marine Container Services (I) Pvt Ltd (Dated : February 29, 2008) Revenue appeal seeks enhancement of penalty amount by a paltry sum of Rs.5000/- - since amount less than threshold limit, by exercising discretionary powers u/s 129A(1) of Customs Act, appeal rejected. :MUMBAI CESTAT; Shri Vashdev Gobindram Adnani Vs CC, Airport, Mumbai (Dated : November 1, 2007) Key witness not produced by DRI for cross examination statements of such persons not reliable & have to be discarded absolute confiscation of currency set aside appeal allowed. Key witness not produced for cross examination inspite of repeated requests either due to the reason that revenue was not sure that these witnesses will support their case or due to sheer lackadaisical attitude such statements not reliable & have to be discarded - allegation that the appellant was trying to smuggle the seized and confiscated foreign currency falls flat on face Appeal allowed. Revenue directed to return the value of the foreign currency as at the time of seizure along with interest absolute confiscation & penalty set aside. :MUMBAI CESTAT; |
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Exemption to goods imported/procured from warehouses or international exhibitions in India for production, packaging or manufacture of export goods by EOU/STP/EHTP units; Microsoft issue : More legal churnings on royalty to expand frontiers of knowledge! 2008-TIOL-221-HC-MUM-FERA.pdf + fera story.pdf Telstar Travels Pvt Ltd Vs Spl Director, ED (Dated : March 14, 2008) FERA 1973 - No question of law involved in appeals - On the facts, case has been decided on basis of voluminous material available and findings are not perverse - is not a fit case for interference - appeals summarily dismissed : BOMBAY HIGH COURT; Post of Textile Commissioner in Mumbai; Growing cyber crime : Govt banks on CIPA to curb it; L&T, TIDCO sign JV to build shipyard cum port complex in TN; Nicholas Piramal acquires Anafortan & CEFI brand groups from Khandelwal Lab; Global financial crisis : OECD for pvt sector to heal the wound! |
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