Issues pending before Special Bench of ITAT (See 'DDT')

CBEC website goes out of public domain (See 'DDT')

PM's Economic Council lowers current fiscal growth projection to 7.7%;

PM's advisory council projects serious fiscal risks in current fiscal;

Job opportunities with TIOL - Multiple vacancies at New Delhi for Business Strategist, Marketing, Sales & Space Selling Executives and young advocates having flair for writing and analysing (Contact us at editor@taxindiaonline.com);

CBEC promotes G S Narang as Chief Commissioner and posts him as DG, Inspection ;

ddt13aug.pdf

Export incentives – Commerce Ministry's plea to 13th Finance Commission;

spl down.pdf

Valuing physician samples: A lucid approach needed;

Inputs_for_13th_Finance_Commission.pdf

Inputs for 13th Finance Commission;

mbuzz871.pdf

PM's Advisory Council projects serious fiscal risks in current fiscal ;

mbuzz870.pdf

Serious efforts on for conservation of Dugongs; MoU signed ;

mbuzz869.pdf

Govt planning PIO Univ at Bangalore;

2008-TIOL-398-HC-MAD-IT.pdf

ACIT, Chennai Vs M/s Pallava Granite Industries ( Dated: July 30, 2008 )

Income Tax - Assessee is into export of manufactured goods as well as trading - Sec 80HHC benefits - AO raises objections on deduction claimed for raising charges - Tribunal allows it - Since raising charges are operational income and has direct nexus to export business it is eligible for inclusion in business profits as well as total turnover - deduction allowed but deduction for inspection charges disallowed as it had no direct link to exports - Revenue's appeal partly allowed: MADRAS HIGH COURT;

2008-TIOL-397-HC-DEL-IT.pdf

M/s Dalmia Dairy Industries Ltd Vs CIT, Delhi Central-I ( Dated: July 30, 2008 )

Income Tax - Assessee fails to pay advance tax - AO charges interest under provisions of Sec 217 - Assessee seeks waiver or reduction of interest rate under provisions of Rule 40 - CIT(A) rejects the same on the ground that the AO can exercise his discretion only after the assessment is completed - Held, there is nothing in the sub-rule 40 (1) which requires the Income Tax Officer to exercise his discretion to reduce or waive interest payable under Section 215 or 217 only after an assessment is completed. The view expressed by the Tribunal in this regard is the correct view in law - Assessee's appeal allowed :DELHI HIGH COURT;

2008-TIOL-366-ITAT-BANG.pdf + 10B story.pdf

M/s Mphasis Ltd Vs ACIT, Bangalore ( Dated : June 27, 2008 )

Income tax – Deductions under s. 10B – Expenses incurred in foreign currency towards payments to the assessee's personnel deputed outside India – Not to be excluded from the export turnover when they form a part of the total turnover - Exclusion from export turnover and total turnover, of expenditure incurred in foreign currency is only where an assessee is involved in rendering of technical services outside India - Such exclusion is not required to be made when a company incurs expenditure in foreign currency in connection with the computer software development

Income tax – Deductions under s. 10B – Absence of definition of total turnover in 10A – Total turnover includes export turnover - If the ‘export turnover' is arrived at after excluding certain expenses, the same should also be excluded in computing the ‘total turnover' - Consistency to be adopted in application of standards for computation of deductions from export turnover and total turnover – Telecommunication expenses to be excluded from total turnover when the same is excluded from export turnover:BANGALORE ITAT;

2008-TIOL-365-ITAT-BANG.pdf

ACIT, Bangalore Vs M/s Ingram Micro India (P) Ltd ( Dated : July 31, 2008 )

Income tax – Deductions eligible for computation of book profits u/s 115JB – Provisions for bad or doubtful debt cannot be treated as a reserve under Clause (b) or (c) of the Explanation below s. 115 JB (2) - No question of considering the provision as a liability, ascertained or unascertained – Deductible from the book profits u/s s. 115JB :BANGALORE ITAT;

Notification_36.pdf

Indian Customs & Central Excise Establishments;

CENTRAL EXCISE SECTION

2008-TIOL-399-HC-UTTRANCHAL-CX.pdf + glycol story.pdf

CC & CE, Meerut II Vs M/s India Glycols Ltd (Dated: June 27, 2008)

CENVAT CREDIT – Capital Goods - Laboratory Homogenizes, Lab Scientific / Hospital Equipments, Gas Detection Systems – eligible for Credit: In view of the definition of ‘Capital goods' as it existed prior to 23.07.1996, and accepted by the Apex court in Commissioner of Central Excise, Coimbatore Vs. Jawahar Mills Ltd., we are of the view that the CESTAT has committed no error of law by allowing the Modvat credit to the assessee in respect of ( i ) Laboratory Homogenizes, Lab Scientific / Hospital Equipments (ii) Module of Chapter Heading No. 85.38 (iii) Gas Detection Systems of Chapter Heading No. 85.31 (iv) Lube / Sealant of Chapter heading No. 32.14 and (v) Tower Packing of Chapter Heading no. 84.19, for the year 1994-95 (upto Feb 1995), used for manufacture of glycol and other industrial chemicals in their factory.” :UTTARAKHAND HIGH COURT;

2008-TIOL-1299-CESTAT-BANG.pdf

M/s Shree Shree Telecom Pvt Ltd Vs CCE, Hyderabad ( Dated: March 19, 2008 )

Evidence on record to suggest that there is no suppression of facts - When the appellate authority is satisfied that there was no cause for imposition of penalty, he ought to have held that the demand is barred by limitation - SCN is barred by limitation – Appeal allowed with consequential relief : BANGALORE CESTAT;

2008-TIOL-1298-CESTAT-DEL.pdf

M/s Shreyans Industries Limited Vs CCE, Jalandhar ( Dated: June 26, 2008 )

Central Excise – manufacture of dutiable and exempted goods – demand of 10% amount on the ground that separate accounts not maintained – prima facie, the appellants have not made out a strong c= ase for waiver of pre-deposit – pre-deposit of Rs 65 lakhs ordered.:DELHI CESTAT;

2008-TIOL-1297-CESTAT-BANG.pdf

CCE, Belgaum Vs M/s Vasavadatta Cement ( Dated: March 26, 2008 )

Demand of interest and imposition of penalty not sustainable without confirmation of the amounts payable - Show cause notice has not proposed the confiscation of the impugned goods – Penalty in terms of Rule 15 of the Cenvat Credit Rules can be imposed only when the impugned goods are held liable for confiscation - Revenue Appeal dismissed : BANGALORE CESTAT;

2008-TIOL-1296-CESTAT-MAD.pdf

M/s Automotive Coaches & Components Ltd Vs CCE, Pondicherry ( Dated: April 11, 2008 )

Sec 11B of the Act cannot be invoked to deny cash refund of interest paid - No supplementary invoices were issued to recover interest – No unjust enrichment – Appeal allowed with consequential relief

The refund claim in question was filed under Section 11B of the Central Excise Act but that provision was not applicable to claim of refund of interest on duty. That provision was applicable only to claim of refund of duty of excise. If that be so, nothing contained in Section 11B of the Act could be invoked to deny cash refund of the amount of interest paid by the party. In other words, refund claim in question is not hit by the bar of unjust enrichment (Para 1): CHENNAI CESTAT;

SERVICE TAX SECTION

2008-TIOL-147-SC-MISC.pdf + sc story.pdf

Faqir Chand Gulati Vs Uppal Agencies Pvt Ltd (Dated: July 10, 2008)

Land owner entering into an agreement with a builder, for construction of an Apartment Building and for sharing of the constructed area, is a `consumer' and the builder as a service-provider under the Consumer Protection Act – The basic underlying purpose of the agreement is the construction of a house or an apartment (ground floor) in accordance with the specifications, by the builder for the owner, the consideration for such construction being the transfer of undivided share in land to the builder and grant of permission to the builder to construct two floors. Such agreement whether called as a `collaboration agreement' or a `joint-venture agreement', is not however a `joint-venture'. There is a contract for construction of an apartment or house for the appellant, in accordance with the specifications and in terms of the contract. There is a consideration for such construction, flowing from the landowner to the builder (in the form of sale of an undivided share in the land and permission to construct and own the upper floors). To adjust the value of the extent of land to be transferred, there is also payment of cash consideration by the builder. But the important aspect is the availment of services of the builder by the land-owner for a house construction (construction of owner's share of the building) for a consideration. To that extent, the land-owner is a consumer, the builder is a service-provider and if there is deficiency in service in regard to construction, the dispute raised by the land owner will be a consumer dispute. It makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the land owner, but whether the agreement is in the nature of a joint-venture or whether the agreement is basically for construction of certain area for the land-owner.

What is the meaning of the word 'service'? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of given property? The answer to all this shall depend on the understanding of the word 'service'. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends in the context in which it has been used in an enactment.: SUPREME COURT;

2008-TIOL-1303-CESTAT-DEL.pdf + ey story.pdf

M/s Ernst & Young Pvt Ltd Vs CST, New Delhi ( Dated: July 21, 2008)

Service Tax - Appellant registered under the category of Management Consultancy/manpower recruitment/Consulting Engineer Services in 1998 - Demand relates to a period ranging from 2001-02 to 2004-05 – Services provided by the appellant to be analyzed to examine the applicability of the relevant provisions of law - Each and every case has its own peculiarity and the governing facts as well as attendant circumstances of each case submit themselves to meet tests of law for arriving at conclusion – Pre-deposit of One Crore Ordered to meet the interests of Revenue:DELHI CESTAT;

2008-TIOL-1302-CESTAT-BANG.pdf

Nithyananda Electronics Vs CCE, Mangalore ( Dated: February 26, 2008)

ST - Penalty - Penalty under various Sections imposed but not under Sec 78 - Since the assessee had certain doubts about thier liability and the tax was not collected from their clients, and no penalty was imposed u/s 78 by the original authority, penalty under Ss 76 and 77 set aside but interest confirmed: BANGALORE CESTAT;

2008-TIOL-1301-CESTAT-MUM.pdf

Tam Media Research Pvt Ltd Vs CST, Mumbai ( Dated: May 27, 2008)

ST - export of services - demand and penalty - assessee provides services to foreign parties but in India - Revenue disallows exemption under Notification 6/99 - It is a fit case for waiver of pre-deposit in view of the Tribunal's stay order in a similar case: MUMBAI CESTAT;

CUSTOMS SECTION

2008-TIOL-1300-CESTAT-MAD.pdf

M/s APCOM Computers Ltd Vs CC, Chennai ( Dated: April 25, 2008 )

Customs – claim for refund of duty - the refund claim was filed on the ground of short-shipment, after clearance of the goods for home consumption under ‘out-of-customs charge order' of the proper officer under Section 47 of the Customs act – The assessment was also not challenged – refund rightly rejected by the lower authorities. : CHENNAI CESTAT;