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Cement manufacturers under pressure from Govt to slash prices; Rule 6 of Cenvat Credit Rules, 2004: CBEC issues major clarification (See 'Indirect Tax' basket); Inflation further leapfrogs to 7.61%; FM hopeful of downward trend in next couple of weeks; Mega infiltration bid by militants in Jammu sector: BSF comes under sustained attack; Bid foiled; Govt says no to exports of pig iron by Steel PSUs; |
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| Dear Member, Sending the following files: |
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2008-TIOL-178-ITAT-DEL-SB.pdf + sb story.pdf Aquarius Travels Pvt Ltd Vs ITO, Delhi (Dated: February 15, 2008) Section 14A : Restriction on AO cannot be stretched to appellate authorities: according to the principle of harmonious construction and after considering the plain meaning of the provision and the proviso, it is quite clear that both have to be applied in their respective fields. The proviso only restrains the Assessing Officer from invoking the provisions of sections 147 and 154. This restriction cannot be stretched too far and has to be confined to the area which it covers. That appears to be the intention of the Legislature. If the restriction was to be applied to other areas and was to cover other authorities for curtailing their powers, the same could have been specifically provided. The proviso does not talk of restricting the power of CIT(A) or ITAT. Hence, powers of these authorities are to be exercised as per the provisions of the Income Tax Act and no restriction can be inferred from the proviso. :DELHI ITAT SPECIAL BENCH; ACIT, Hyderabad Vs Sri Mangaram Chaudhary (HUF) (Dated : February 28, 2008) Income Tax - Concealment of income detected during survey and confirmed by the assessee during search on the same day does not amount to ‘Disclosure' – Block assessment applicable. As there is no formal commencement and completion of survey proceeding u/s 133A and during the continuance of survey proceedings, the search proceedings u/s 132 having been initiated on the basis of information obtained, in the facts and circumstances of the case, it can only be said that the survey proceeding loses its identity and in fact, gets merged with the Search proceedings. Hence as claimed by the assessee, there cannot be two independent proceedings in the present case and the conclusion of operation results in search proceeding only. Had the survey and search proceedings been carried out on two different dates independently, then the claim of the assessee may hold good. As the survey operation is only an investigation proceeding and the information obtained during the course can be used for any future proceeding, the search can only be said to be rightly initiated in the present case on the basis of information about the excess unaccounted stock obtained during the course of survey and the end result of operation is search only. The value of excess stock cannot be said to have been disclosed to the department for the following reasons:- (i) The “evidential” value is not accorded to the statement obtained during the course of survey. (ii) The disclosure is not in compliance with the requirement of the provisions of the Act. (iii) The department did not proceed to assess or reassess the excess stock by issue of notice either u/s 142(1) or u/s 148. : HYDERABAD ITAT; ACIT, Hyderabad Vs M/s Srinivasa Constructions Ltd (Dated : February 15, 2008) TDS - it is a case where the assessee is shuttling between Pune and Hyderabad to get the credit of TDS . Section 199 of the Act is very clear on this issue to the effect that credit for TDS to be given to the person in whose hands the receipts are included. In the present case, it is not in dispute that the entire receipts of the JV have been distributed in the hands of the two constituents and hence it will be the respective constituents who will be claiming credit for TDS . Moreover, the Assessing Officer has wrongly mentioned that the TDS certificate is in the name of PSJV. The correct name in the TDS certificate, as mentioned by the CIT ( A), is PSJV A/c Srinivasa Constructions. Thus, even going by the name in the TDS certificate also, the assessee would be entitled to get the credit of Rs.28 ,09,976 , being its share of TDS . : HYDERABAD ITAT; M/s Vioth Turbo Pvt Ltd Vs ACIT, Hyderabad (Dated : February 29, 2008) While interpreting the law, the rule of casus omissus should be kept in mind and the authorities are not entitled to supply new words to the statute – assessing officer directed not to reduce 90% of the duty drawback from the profits of business while computing deduction under S.80HHE Under S.80HHC, though 90% of duty drawback is excluded initially in view of Explanation (baa), we find that it is added again with the profits eligible for deduction as per first proviso to S.80HHC(3). In S.80HHE also while defining the term ‘total turnover', a specific reference has been made to the term ‘duty drawback'. On a conspectus of the matter, we are of the view that the Parliament did not intend to exclude duty drawback from the profits of the business for the purpose of calculation of deduction u/s 80HHE. As pointed out by the learned Authorised Representative, while interpreting the law, rule of casus omissus should be kept in mind and the authorities are not entitled to supply new words to the statue (statute). Accordingly, we direct the assessing officer not to reduce 90% of the duty draw back from the profits of business while computing deduction under S.80HHE. : HYDERABAD ITAT ; |
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CIRCULAR Rule 6 of Cenvat Credit Rules, 2004: CBEC issues major clarification (See 'Indirect Tax' basket); Clarification regarding Board's Circular No. 739/55/2003-CX dated 28.8.2003.; CASE LAWS M/s Eurokem Laboraties P Ltd Vs CCE, Chennai (Dated : February 6, 2008) Central Excise – inputs used exclusively in exempted final products – Credit reversed - No further demand : BANGALORE CESTAT; M/s Aryan Energy (P) Ltd Vs CCE, Hyderabad (Dated : February 5, 2008) No Objection has been raised for permitting the appellants to raise additional grounds which were necessitated in view of amendments to the Finance Act – Held appellants are permitted to raise the additional grounds : BANGALORE CESTAT; CCE, Bangalore Vs M/s Tafe Ltd (Tractors Division) (Dated : January 30, 2008) Central Excise – Valuation – After sale service charges - After sale service charges received by dealers from buyers is not includable in the assessable value. Earlier ruling on the matter by the Tribunal is binding. (Para 5): BANGALORE CESTAT;
SERVICE TAX SECTION 2008-TIOL-716-CESTAT-BANG.pdf + blue st story.pdf M/s Blue Star Ltd Vs CCE, Bangalore (Dated : March 27, 2008) Service Tax- booking orders in India – export of services: On a very careful consideration of the matter, the appellants have produced documentary evidence to show that they had rendered the services to their foreign principals by booking orders in India for their goods. Refund Claims relate to the goods supplied by the foreign principals based on the orders booked by the appellant. Moreover, in the Agreement relied on by the Revenue, para 9 relates to the services rendered by the appellants. This para has not been referred to by the Commissioner (Appeals) in his order at all. On the basis of the records, I am convinced that the services rendered have been exported in terms of Rule 3(2) of the Export of Service Rules, 2005. Hence, the appellants are entitled for the refund of the Service Tax already paid : BANGALORE CESTAT; M/s Arjun Tours And Travels Pvt Ltd Vs CCE, Bangalore (Dated : January 29, 2008) Service Tax – Tour Operator - Commissioner (Appeals) had remanded the matter to the original authority with directions to re-quantify the demand without considering the submissions made by the appellants and has also gone beyond the scope of the show cause notice. Matter remanded to the original authority to consider all points afresh. (Para 2) : BANGALORE CESTAT; CST, Bangalore Vs M/s Murali Sesh Enviro Engineers (Dated : February 20, 2008) Service Tax – Commissioning & Installation and Consulting Engineering Services – Works Contract – Turnkey projects - In the absence of any evidence that the respondent has received separate charges for the different services rendered in a turnkey project, the services rendered would come under the category of works contract and not under Commissioning & Installation and Consulting Engineering Services. Contract not to be vivisected. (Para 6) : BANGALORE CESTAT;
CUSTOMS SECTION M/s IJM Gayatri Joint Venture Vs CC & CE, Hyderabad (Dated : February 25, 2008) Customs – exemption under Notification No 84/97 Cus – project funded by Japan Bank of International Cooperation (JBIC) – JBIC is not included as international organization and the appellants are not eligible for exemption - though they had the Certificate from Competent Authority, the Competent Authority can also make mistakes and when it is found that the Certificate was not proper, the Revenue can always recover the duty due to the Government. Nothing can stop the Revenue from recovering the duty when the recovery proceedings are within the four corners of law. : BANGALORE CESTAT; M/s Navpad Enterprises Vs CC, Cochin (Dated : March 10, 2008) Import of second hand photocopiers – RF only 10% and penalty 5% : BANGALORE CESTAT; |
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Recovery Mechanism for 8% (10%) under Rule 6 of the Cenvat Credit Rules – Due Course means five years for the Board. Much ado about galloping inflation but no ado over soaring input costs of farmers! 2008-TIOL-96-SC-CT.pdf + hawkins story.pdf Hawkins Cookers Ltd Vs State of Kerala (Dated : April 29, 2009) Kerala General Sales Tax Act - Satilon coated cookware & Teflon coated cookware are not ‘aluminium household articles' but ‘non-stick cookware' – Amendment made is clarificatory in nature: SUPREME COURT; CCS (LTC) Rules, 1988 - Relaxation for travel by air to visit NER.; RBI Notiifcation For Asset Classification.pdf RBI revises prudential norms for asset classification related to infrastructure projects; If projects are delayed, accounts to be treated sub-standard; CCEA gives nod for Rs 8000 Cr FDI into Essar Power & for redemption of 7% shares in NBCC Ltd ; CCEA gives approval to USD 250 mn FDI proposal of Rakindo Developers; |
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