|
 |
 |
 |
 |
 |
Govt grants full service tax exemption to supply of transport vehicles to GTA (See 'Service Tax); CCEA approves outstanding salary and wages for loss-making CPSEs; also gives nod for grants-in-aid for R&D in Pharma; Cabinet okays proposal for non-applicability of 50% reservation for backlog vacancies of OBCs + gives nod for Cruise Shipping Policy; RBI advises banks to report all transactions involving FICNs to FIU-IND; Second ad hoc promotion to Commissioner-rank: CBEC manages to cover upto Rajiv Talwar of 1988 batch; Ranchi CBI Court sentences IAS officer + 30 others in fodder scam case; ACC shifts Vijai Sharma, Spl Secy, from Cab Secretariat to Environment + Mar Rahul Sarin goes to Ministry of Food Processing; |
 |
|
 |
 |
 |
|
| Dear Member, Sending the following files: |
||
|
 |
 |
|
|
MRP valuation CBEC bows to Apex Court and revises Circulars; Indian Internet Economy: How serious is ID Theft? Are we prepared to tackle an 'epidemic'? ACC shifts Vijai Sharma, Spl Secy, from Cab Secretariat to Environment + Mar Rahul Sarin goes to Ministry of Food Processing; CCEA approves outstanding salary and wages for loss-making CPSEs; also gives nod for grants-in-aid for R&D in Pharma; Cabinet gives nod to Cruise Shipping Policy of India ; HAL bags Order for Dhruv helicopters from Ecuador; International Day Against Drug Abuse & Illicit Trafficking: CBN deserves a pat ; |
|
|
|
|
|
|
| |
 |
 |
|
| |
2008-TIOL-275-ITAT-MAD.pdf + huf story.pdf Shri D K Nagu Shah & Brothers Vs ACIT, Chennai ( Dated : March 14, 2008 ) AOP or HUF Notice should be clear: Before assuming jurisdiction to complete the assessment, notice has to be issued in the status in which assessment is sought to be completed The definition of person' very clearly shows that Individual, HUF , Association of Persons (AOP) are different persons. Before assuming jurisdiction to complete the assessment, notice has to be issued in the status in which assessment is sought to be completed. In this case, though notice was issued twice in the status of HUF , first under sec.158BC on 29.10.2001 and later under sec.158BD on 26.12.2002, but still the assessment has been completed in the status of AOP. Therefore, the assessment is without jurisdiction and void ab initio. No estoppel against law: However, it is a well established doctrine of law that there cannot be any estoppel against law. The basic principle of law is that no person can be condemned without issue of notice and this principle cannot be compromised by consent. In these circumstances, we are of the view that the assessment framed as void ab initio and nullity and, therefore, set aside the order of the CIT (Appeals) and annul the assessment. Unaccounted income difference in computation : the Assessee has the right to conduct the business in its own way. Simply because separate note book was maintained for payment received from D.Ravi and such note book was also found during search, then such receipts of payments cannot be ignored. : CHENNAI ITAT; DCIT, Lucknow Vs M/s Jaiprakash Investment Pvt Ltd ( Dated : January 25, 2008 ) Income Tax Act Disallowance of Interest paid - The AO observed that that on one hand assessee had been paying huge interest to group company while on the other it had advanced large sums to suppliers, contractors and others, on which no interest had been charged CIT(A) allowed the assessee's appeal observing that ITAT had upheld the order of the CIT(A) for assessment years 1996-97 and 1997-98 - Held, as a general rule the principle of res judicata is not applicable to decisions of income-tax authorities, an assessment for a particular year is final and conclusive between the parties only in relation to that year, the decision given in an assessment for an earlier year are not binding either on the assessee or the department in as subsequent year On merits held, that since AO had made no enquiries as to the purpose for which advances were given and therefore, the matter restored back to the file of AO for necessary enquiries - Also held, If initially the advance was given for business purposes then merely the fact that the amount had not subsequently been realized from the party will not loose its character of being business advances, however, if the excess amount remained with the party for unduly long period, then it is to be examined whether the entire amount was initially given for business purposed or not. : LUCKNOW ITAT; Mr K K Khullar Vs DCIT, New Delhi ( Dated : January 18, 2008 ) Income Tax - assessee maintaining books of account on cash basis - AO questions retainership fees being booked on accrual basis - assessee pleads that the "advance retainership fees" was shown as advance in the books of account. That portion of the advance which was co-related to the services rendered in the year was offered for taxation by debiting it to the advance account. It was further explained that there was no change in the method of accounting in this behalf, which had been followed for more than three decades. AO did not accept the explanation and the entire advance was taken as income, leading to an addition - CIT(A) held that assessee was following hybrid system - held, where the income has not resulted at all, there is obviously neither accrual nor receipt of income, even if entry to that effect has been passed in the books of account and debt to the extent of the amount pertaining to services rendered only got vested in the assessee. The rest of the amount was taken as liability to be adjusted in subsequent year as and when the service was rendered - CIT(A) erred in finding that assessee was following hbrid system. : DELHI ITAT; ACIT, Meerut Vs Shri Rajendra Kumar ( Dated : March 14, 2008 ) Income Tax Act Section 149 and Section 150 - The assessment order for AY 1978-79 was passed on 22.3.1990 wherein capital gains were first brought to assessment, thereafter there was an appeal against the aforesaid assessment order and the CIT (A) upheld the assessment to capital gains by an order dated 15.5.1991, in an appeal against the CIT(A) order ITAT vide orders dated 14.6.2000 held that the capital gains were assessable to tax in AY 1980-81- On basis of ITAT orders dated 14.6.2000 notice for reassessment u/s 148 were issued to assessee for AY 1980-81 Assessee alleged that notices were barred by limitation Held, notice for reassessment was valid as it was saved by provisions of sub-section (1) of section 150 and the provisions of sub-section (2) of section 150 were not applicable. Held further, that the time limit within which notice under section 148 could be issued by the Assessing Officer had to be reckoned, in the very nature of things, under the provisions of section 149 as they stood as on 22.3.1990 as is clear from the words "assessment year in respect of which an assessment, reassessment or recomputation could not have been made at the time the order which was the subject matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, re-assessment or recomputation may be taken" Held further, that expression "the order which was the subject matter of the appeal" referred to the original order of the assessment and not the order appealed against i.e CIT(A) order. Taxability of original and enhanced compensation AY 1980-81 Section 45(5) w.e.f 01.04.1988 therefore not applicable to AY 1980-81 - the income by way of capital gains accrued in AY 1980-81 - enhanced compensation can be considered as having accrued to the assessee only if it was received by the assessee as income, the assessee having had an unreserved right to receive the same matter restored back to AO to ascertain the status of enhanced compensation. : DELHI ITAT; |
|
|
| |
|
|
|
| |
 |
 |
|
| |
Order 153 of 2008.pdf + Order 152 of 2008.pdf North Block finally relents on CBEC transfer order of Addl/JCs; 66 transferred at All India level + 64 locally rotated;
2008-TIOL-1000-CESTAT-KOL-LB.pdf + LB story.pdf Rourkela Steel Plant, Unit of SAIL Vs CCE, Bhubaneswar (Dated : May 26, 2008) Central Excise - reference to the Larger Bench - whether the provisions of Section 11 A are applicable for the demands made under Rule 223 A of the Central Excise Rule 1944 - Reference answered in negative - demand under Rule 223A is not governed by provisions of Section 11A. :KOLKATA CESTAT (LARGER BENCH); M/s Sabari Tex Vs CCE, Salem (Dated : April 4, 2008) Central Excise - Stay / dispensation of pre-deposit - it was incumbent on the authorities to issue the demand notice within the normal period from the date of seizure - demand prima facie not sustainable - pre-deposit waived. :CHENNAI CESTAT; Karthik Industries Vs CCE, Chennai (Dated : April 16, 2008) Central Excise - Stay / dispensation of pre-deposit - valuation - goods sold to related persons as well as unrelated persons - the provisions of valuation rules apply only when the manufacturer so arranges that the goods are not sold except to or through related person - the appellants have made out a prima facie case for full waiver of pre-deposit. :CHENNAI CESTAT; M/s Flow Tech Power Vs CCE, Coimbatore (Dated : April 21, 2008) Central Excise - Cenvat Credit - welding electrodes used for repair and maintenance works are not eligible for credit - Larger Bench decision in Jaypee Rewa followed - Interest on credit taken - no allegation that the appellant utilized or taken any advantage of the credit - recovery of interest set aside. :DELHI CESTAT;
SERVICE TAX SECTION NOTIFICATION stnot08_029.pdf + Service Tax For GTA.pdf Govt grants full service tax exemption to supply of transport vehicles to GTA; CASE LAWS M/s Flow Tech Power Vs CCE, Coimbatore (Dated : April 21, 2008) Service tax - refund consequent to the favourable order by the Tribunal - since no appeal has been filed so far and no stay has been obtained, the appellants are entitled to get the relief ordered by the Tribunal. : CHENNAI CESTAT; M/s Parveen Travels (P) Ltd Vs Commissioner of Service Tax, Chennai (Dated : April 3, 2008) Service tax Stay / dispensation of pre-deposit Tour operator service - the amended definition of tour operator under Section 65(115) does not make it mandatory that the vehicle operated by the tour operator should conform to particular specifications no prima facie case for waiver of pre-deposit. : CHENNAI CESTAT;
CUSTOMS SECTION 2008-TIOL-996-CESTAT-AHM.pdf + gold shoe story.pdf Smt Rasilaben Rathod & Others Vs CC, Ahmedabad (Dated : March 31, 2008) Smuggling Burden of Proof: It can be noticed that the burden of proof that the seized goods are not smuggled, lies on the person who claims ownership of the said seized goods. This would indicate that M/s. Paras Bullion is a regular dealer in gold bullion and is maintaining records. Bills need not be of the same date even banks issue bills after two or three days - A lot was argued by SDR that the Bills produced by the appellants were of not the same date. The trade practices in the bullion market seem to indicate otherwise. The documents show that even today the nationalized banks, for the sale of foreign marked gold biscuits, issue the bills for the sales affected, after two to three days. If the nationalized banks are following the said procedure, than it has to be held that just because the invoices are of subsequent date it would not matter, as long as the burden of proof, that the goods are not smuggled, is discharged. What is legal and genuine in one Revenue Department cannot be illegal for another Revenue Department: It is also to be noted here that Income Tax authorities on the same set of evidence (based upon the information shared by customs with Income Tax Department) concluded that the transactions of purchases and sales were genuine, on the basis of documentary evidences. If that be so, then the transactions which are genuine and legal to one revenue department cannot be said being illegal for another revenue department, both working under the same Ministry. Carrying gold in shoes Even C ustoms has endorsed it: As regards the mode of transportation of the gold biscuits in shoes, it may look odd, and it may raise a suspicion and nothing more. The mode of transportation of valuables in a covert manner has been accepted as a general practice It seems that the C ustoms department itself accepts the mode of transportation of gold biscuits in shoes, which is evident from the remarks on the Baggage receipt no 0296644 dated 1.3.2007, which is endorsed by the C ustoms officials as produced along with the miscellaneous application. It is seen from records that revenue has not adduced any evidence, even remotely, to indicate that the seized gold biscuits were of smuggled nature, while appellants have clearly demonstrated that they had licitly purchased the gold biscuits in a normal sale and purchase transactions. Minority View per Member (T) Burden of proof: The rationale of enacting the section 123 is worth recollecting. Normally the burden to prove the allegations is on the prosecution. To meet certain extreme difficult situations, the law has specifically provided for shifting the burden on others. Gold, diamond are items of small volume but of high value and hence highly prone to smuggling. If gold or diamond are brought from a foreign country whether by legal import or by smuggling, price for the same in foreign exchange has to go out of the country, legally or through other means. If the gold or diamonds are smuggled, the money has to go mostly illegally. While the nation may require the foreign exchange for purposes like import of fuel, purchase of defence equipments etc., the needs of individual could be different. Some people might be interested in investing in idle assets like gold. Therefore in respect of items which are prone to smuggling, the unusual step of shifting the burden of proving that the gold or diamonds seized from the custody of persons is provided for. The purchase bill for 1000 gold bars cannot be allowed to give perpetual right for storing 1000 bars in the shop and the owner and employee of the owner to roam around without bills any quantities say of 200 bars, 300 bars every time taking the cover that he has already procured 1000 gold bars. Concealment in shoes- gold and shoes are not appropriate companions. To consider the concealment in shoes as a practice is inconceivable in the Indian context. High respect bordering sanctity is attached to items like gold, and gold ornaments. It is common knowledge that gold ornaments are not normally worn in the legs. It may be mentioned that in some business premises even the proprietors / partners do not enter the premises with their shoes on. There have been many cases of smugglers using shoes for concealment of gold and other precious articles and have been nabbed by customs authorities in the air ports. C oncealment in shoes was not found to be a practice but only as part of malpractice. A stray case of shoe transport cannot be the general practice: A passenger claims to have come through the airport concealing his gold in the shoes and declaring to the customs Mumbai Sahar airport and then getting a certificate in the baggage receipt dated 1-3-07 issued for payment of duty that the gold was concealed for safety purposes in the shoes. The passenger, perhaps, feared that some robbers may rob him while he was traveling in the aircraft! Some customs officer has also willingly or unknowingly obliged the said passenger and given such a certificate. In my opinion, the customs officer has gone beyond his normal call of duty / role in certifying that the gold was transported for safety purposes. It can be only a case where a certificate has been issued as solicited by the passenger. The officer was not required to acknowledge the mode of transport, packing etc. of the goods imported by various passengers. Even if this particular passenger who has brought by concealing in his shoes, fearing theft/ robbery of gold this cannot lead to conclusion that there is a practice to transport gold by concealing in shoes. Income Tax case not relevant: The reliance placed on the order of the income tax authorities in their own case is misplaced. The income tax authorities were concerned not about the legality of transactions under other law. They are concerned about the purchases made, the sales effected, the expenditure incurred all to arrive at the income generated by the assessee and the decision taken by them will have no bearing as to whether the gold bars have been acquired in conformity or in contravention of the provisions of the C ustoms Act. If a person indulged in bootlegging, gambling etc and earned money the income tax will collect tax due and it is for the concerned department to take appropriate action for violations of other laws. It is a different matter that income tax department might alert the other concerned agency. : AHMEDABAD CESTAT; Dhruv Inc Vs CC (Imports), Mumbai (Dated : January 11, 2008) Customs - mis-declaration of goods imported - whether the fabric imported was made from non-texturised polyester yarn or texturised polyester yarn - since the appellant's contention that the samples tested could not have been drawn from the consignments imported by them was not considered by the adjudicating authority, matter remanded to the adjudicating authority for fresh decision :MUMBAI CESTAT; |
|
|
| |
|
|
|
| Regards Taxindiaonline.com Pvt. Ltd. |
