Study on organised and unorganised retail by ICRIER – views invited from stakeholders
(See' Common Basket')

Change in CBDT Board office: Mr A K Sinha swaps chair with Mr R K Tewari;

Nepal's Constituent Assembly sworn in today;

Indian Air Force carries largest ever across the border disaster relief mission to Myanmar and China; over 277 tonnes of relief materials delivered;

ddt 27 may.pdf + instructions.pdf

Import of Sex determination/ gender testing kits – violation of PC & PNDT Act – Customs watch out!

stgst.pdf

Associated enterprises' provisions open up pandora's box!

vacancy_ncb.pdf

Deputation opportunity : NCB DG-post is vacant ;

mbuzz642.pdf

Study on organised and unorganised retail by ICRIER – views invited from stakeholders ;

mbuzz641.pdf

Tourism Ministry identifies 20 mega destinations for infrastructure development ;

mbuzz640.pdf

Creation of irrigation potential of 3.62 mn hectare under Bharat Nirman ;

mbuzz639.pdf

Retailers Association protest against FDI into Retail Sector ;

2008-TIOL-203-ITAT-HYD.pdf

Gvpr Engineers Ltd Vs ACIT, Hyderabad (Dated : April 11, 2008 )

IT - Deduction under Section 80IA -  infrastructure or development – Stay granted on pre-deposit as issue is before Special Bench : HYDERABAD ITAT;

2008-TIOL-202-ITAT-HYD-SB.pdf + spl bench story.pdf

Ivrcl Infrastructure Projects Ltd Vs ACIT, Hyderabad (Dated : April 25, 2008 )

Income Tax - Amalgamation - Assessee is into leasing of equipment - leases out land, building, furniture and fixtures before amalgamation - AO treats the lease agreement entered into before the amalgamation as sham and colourable device to avoid paying tax - CIT(A) does not agree - In the light of the fact that the lease of assets took place several years ago, and the Revenue never doubted the authenticity of the agreement and continued to accept the return for sevearl AYs, there is no material on record to question the genuineness of the same - Revenue's appeal dismissed

Capital gains - Assessee disposes off shares of two different companies before amalgamation to reduce outstanding liabilities - Since the assessee suffered losses in both the transactions which became much higher due to cost indexation u/s 48, the AO disallowed the carry forward of losses, suspecting an attempt to avoid tax - CIT(A) allows the loss in one case but disallows in another as the shares sold at a loss were of the amalgamating company - Since there is nothing in law to prevent one from selling shares at a loss to reduce its outstandings, and then the loss arising out of such a sale being carried forward by the amalgamated company, the factual transaction of sale cannot be disregarded - the carry forward of loss allowed - Revenue's appeal rejected : HYDERABAD ITAT (SPECIAL BENCH);

2008-TIOL-201-ITAT-DEL.pdf

DCIT Vs M/s Oral B Laboratories India Ltd (Dated : April 30, 2008 )

Income Tax - Amalgamation - Assessee is into leasing of equipment - leases out land, building, furniture and fixtures before amalgamation - AO treats the lease agreement entered into before the amalgamation as sham and colourable device to avoid paying tax - CIT(A) does not agree - In the light of the fact that the lease of assets took place several years ago, and the Revenue never doubted the authenticity of the agreement and continued to accept the return for sevearl AYs, there is no material on record to question the genuineness of the same - Revenue's appeal dismissed

Capital gains - Assessee disposes off shares of two different companies before amalgamation to reduce outstanding liabilities - Since the assessee suffered losses in both the transactions which became much higher due to cost indexation u/s 48, the AO disallowed the carry forward of losses, suspecting an attempt to avoid tax - CIT(A) allows the loss in one case but disallows in another as the shares sold at a loss were of the amalgamating company - Since there is nothing in law to prevent one from selling shares at a loss to reduce its outstandings, and then the loss arising out of such a sale being carried forward by the amalgamated company, the factual transaction of sale cannot be disregarded - the carry forward of loss allowed - Revenue's appeal rejected : DELHI ITAT;

2008-TIOL-200-ITAT-MAD.pdf

ACIT Vs M/s Helios & Matherson Information Technology Limited (Dated: March 28, 2008 )

Income Tax - Assessee files return and declares huge non-compete fee received from sister concern - Re-assessment u/s 147 - CIT(A) holds the proceedings invalid by terming the AO's action as mere change of opinion as the assessee had disclosed all the information in return - Held, it cannot be termed as change of opinion as the AO had not formed any opinion on this issue, and mere disclosure of full and true information in return is not enough to prevent the Revenue from re-opening the assessment if a particular entry disclosed in P & L account has escaped assessment - Revenue's appeal upheld

Non-compete fee for restrictive covenant - Assessee claims it as capital receipt - AO disallows it - In the light of the fact that this transaction was between two sister concers, having same Directors and the assessee not having exclusive expertise in forex business and also the fact that the assessee never had huge profits in this line of business and the fact that the assessee wanted to change its line of business to IT which it did later, a payment made to the assessee cannot be treated as non-compete fee for withdrawing from the forex business - Since it was a payment made for sharing the customer database and sharing of trained employees, it was revenue receipt exigible to tax - Revenue's appeal allowed : CHENNAI ITAT;

2008-TIOL-199-ITAT-HYD.pdf

M/s Sama International Pvt Ltd Vs ITO (Dated: April 22, 2008 )

The income has to be computed correctly in accordance with law. The powers of the CIT (A) being co-terminus with that of the Assessing Officer, he should have entertained the plea of the assessee. We now direct the CIT (A) to consider the plea of the assessee and decide the appeal afresh after giving due opportunity of being heard to the assessee. The assessee is also directed to co-operate fully with the CIT (A) for the expeditious disposal of the appeal. : HYDERABAD ITAT;

CENTRAL EXCISE SECTION

2008-TIOL-823-CESTAT-AHM.pdf + adani story.pdf

M/s Adani Wilmar Ltd Vs CC, Kandla (Dated: May 5, 2008)

The Revenue must establish that the goods fall within the four corners of the taxable entry –( majority decision) It is well settled that the burden to prove the classification is upon the department. The Revenue must establish that the goods fall within the four corners of the taxable entry - in this case Chapter heading 15.11, as RPO. The Revenue has failed to prove that no hydrogenation was undertaken. The case of the Revenue at its highest is that, according to one expert Dr. Rao , presence of linoleic acid indicates that the goods are not partially hydrogenated and according to the other expert, Dr. Arumugham , TFA was not found in a measurable quantity. Dr. Rao's conclusion cannot be accepted in the face of the admitted position that the samples were found to contain -nickel, sesame oil and vitamin A and also conform to the standards of the PFA Rules for vanaspati.

Revenue has not discharged the burden cast upon it to show that process of hydrogenation did not take place at foreign supplier's end and that, therefore, the goods are not HVO while the appellants have been able to establish to the contrary, namely, that the goods imported by them are HVO and not RPO as contended by the Revenue. : AHMEDABAD CESTAT Majority Decision;

2008-TIOL-822-CESTAT-KOL.pdf + gk story.pdf

CCE, Kolkata-IV Vs M/s G K Plastics (P) Ltd (Dated: Febuary 13, 2008)

Committee of Commissioners - Revenue's Miscellaneous Application is ill-conceived and defamatory for their averment that Tribunal inflicted injustice on them : KOLKATA CESTAT;

2008-TIOL-821-CESTAT-BANG.pdf

The CCE, Bangalore-III Vs M/s Kemwell (Pvt) Ltd (Dated: January 29, 2008)

Central Excise – valuation – physician samples - the assessee need not include advertising cost / marketing expenses in the transaction value of the physician samples cleared on payment of duty. : BANGALORE CESTAT;

2008-TIOL-820-CESTAT-MAD.pdf

CCE, Belgaum Vs M/s Hindustan Lever Ltd (Dated: March 19, 2008)

Central Excise – refund – refund arising consequent to the finalization of provisional assessments – doctrine of unjust enrichment – amendment to rule 9(B) of Central Excise rules – in view of the Bombay High Court decision in case of M/s Standard Drum & Barrel Mfg Co., holding that the amended provisions of rule 9(B) are applicable for claim made on or after 1.8.1998, the matter is remanded to the lower appellate authority. : CHENNAI CESTAT;

SERVICE TAX SECTION

2008-TIOL-818-CESTAT-BANG.pdf

M/s Power Best Electricals (P) Ltd Vs CCE, Calicut (Dated: Febuary 4, 2008)

Service tax – erection, commissioning and installation - the appellant is only an electrical contractor and the work done is not taxable under erection, commissioning and installation service. : BANGALORE CESTAT;

2008-TIOL-817-CESTAT-MUM.pdf

M/s Avaya (India) Pvt Ltd Vs CCE, Pune-III (Dated: April 28, 2008)

ST - Market Research Agency Service - Assessee conducts market reasearch for foreign companies and submits findings and get paid in convertible foreign exchange - Revenue for tax and penalty - Prima facie, such activities coupled with payment in convertible foreign exchange will be eligible for exemption under Notification No 6/99 and later by Notification 21/03 - Waiver of pre-deposit granted : MUMBAI CESTAT;

CUSTOMS SECTION

NOTIFICATION

ctariff08_071.pdf

Govt fixes effective Customs duty on poppy seeds to 40 %;

dgft08not013.pdf

Relaxation of ban on cement export - Export from ports of Gujarat allowed;

CASE LAWS

2008-TIOL-819-CESTAT-MAD.pdf

Shri P. Srinivasan Vs CC & CE, Trichy (Dated: March 12, 2008)

Customs – confiscation of Indian Currency obtained as sale proceeds of contraband gold – from the transactions and the statements recorded and the investigations it is seen that the order of confiscation and penalties legal – however, penalties reduced. :CHENNAI CESTAT;