Only Income Tax Officers can become CBEC Members? (See 'DDT')

ITAT and CESTAT Members can now become CBDT/CBEC Members (See 'DDT')

On return from G-20 Summit, South African FM says impact of crisis is so deep that downturn may even continue for a couple of years;

Financial crisis or no crisis: NRIs send USD 513 mn back home in September: RBI;

Japan grants patent in record 17 days after examination request made by a Univ;

PM reviews macro indicators of economy with key 'fiscal and monetary brains'; A fresh revival package is on the cards;

ddt 18 nov.pdf

Central Excise – Trade Discount – Reversal of Credit – Board Clarifies;

mbuzz1176.pdf

Chennai DRI seizes 197 kg ketamine being exported with onion consignment;

mbuzz1175.pdf

OECD hails G-20 decision and offers full support;

mbuzz1174.pdf

India tops WTO list of nations initiating Safeguard duty investigations with 15 ;

2008-TIOL-566-HC-KERALA-IT.pdf

M V Ganesh, Legal Vs CIT ( Dated : October 15, 2008 )

Income Tax - Assessee questions validity of Revenue orders under the "Kar Vivad Samadhan Scheme, 1998" - Revenue passes two orders- one entitling the assessee to a refund and another adjusting the same against the arrears of tax for another AY - Assessee contends to have challenged the said orders but no proof produced - Held, the order passed by CIT cannot be null and void as the assessee fails to authenticate that the arrear adjustment order has been challenged. Under such circumstances the order of Respondent No. 1 was justified in granting relief only under sub-section (iv) of Section 88(a) of the Finance Act-Assessee's appeal rejected: KERALA HIGH COURT ;

2008-TIOL-562-ITAT-MUM.pdf + 10A story.pdf

Chenab Information Technologies (P) Ltd Vs ITO ( Dated : August 29, 2008 )

Income Tax - New unit set up by splitting up of the business of the old unit is not eligible for deduction under section 10A : it is a case of the same people doing the same business, the only difference being that the people have been shifted to the new office. The existing business of the assessee was development of software and in the new unit also, the assessee has done the same business of software development using the same employees and therefore it cannot be a case of different business requiring different specialization being taken up for which setting up of a new unit can be said to have become a business necessity .:MUMBAI ITAT;

2008-TIOL-561-ITAT-MUM.pdf

ITO, Mumbai Vs Graham Firth Steel Products (I) Ltd ( Dated : June 17, 2008 )

Income tax - Assessee company carries forward unabsorbed depreciation – Assesseeing officer disallows the claim of set off - CIT (A) directs the AO to allow the claim - Held, the provisions of sec 32 (2) as substituted with effect from 1-4-97 can be applied to unabsorbed depreciation brought forward from earlier years and the assessee's claim cannot be disallowed - Revenue's appeal dismissed:MUMBAI ITAT;

2008-TIOL-560-ITAT-MUM.pdf

Forbes Gokak Ltd Vs DCIT, Mumbai ( Dated : April 28, 2008 )

Income Tax - Assessee engaged in the business of manufacturing of yarn and engineering goods - claims Sec 80HHC benefits - computes deduction in a way that the loss on export of goods and merchandise was ignored  and only the profit from the export incentive was taken into consideration - AO in the original assessment proceedings allows deduction. However, on realizing that being a negative profit deduction would not be admissible, he issues notice u/s 148 - passes re-assessment order and denies deduction - CIT(A) upholds AO order - Held, assessment can be reopened if the AO comes to know that some income has escaped assessment, and there is no error in such an assessment - Assessee's appeal dismissed:MUMBAI ITAT;

2008-TIOL-559-ITAT-DEL.pdf

M/s Jaypee Hotel Limited Vs ACIT, New Delhi ( Dated : September 26, 2008 )

Income Tax Act – Penalty u/s 271(1)(c) – Held that, the case of Revenue against the assessee was that it furnished inaccurate particulars of its income by making a wrong claim and that its explanation and the claim of expenditure was not bona fide and therefore it was liable to penalty by virtue Part B of the Explanation. This Part of the Explanation starts with the words 'such person offers an explanation which he is not able to substantiate'. 'Not able to substantiate' does not mean not accepted by the authority concerned but not showing a substance in the claim made by the assessee. The word 'Substantiate' is opposite to the words vague or fanciful, or without any foundation or basis. It cannot be equated with the expenditure/loss disallowed. The assessee stated that it was a business loss and that is with what the CIT(A) agreed.

Held further, that the next following sentence of Part B of the Explanation states 'and fails to prove that such explanation is bona fide.' The assessee claimed the loss on sale of shares on trading account and as aforesaid it was found accepted by the CIT(A) and therefore it cannot be said that assessee failed to prove that explanation was bona fide. On the contrary he proved that explanation was correct.

Also held, the third sentence of Part B of the Explanation is 'and that all the facts relating to the same and material to the computation of his total income have been disclosed by him'. The assessee had disclosed all material facts that are relevant for computing the income of the assessee not only during the assessment proceedings but at the threshold in the return of income itself, i.e., by furnishing the details of share dealing and by disclosure in the annexed Balance sheet and profit and loss account. It would be relevant to note that on the basis of these very materials, and not more, the AO has reopened the assessment under the main provisions of section 147 without invoking the proviso thereto, meaning thereby was not alleging any failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment.:DELHI ITAT;

CENTRAL EXCISE SECTION

2008-TIOL-567-HC-MAD-CX.pdf + madura story.pdf

M/s Madura Coats Ltd Vs CCE, Madurai ( Dated: September 30, 2008 )

Countervailing duty paid under the provisions of the Customs Act, is payment of central excise duty – Not desirable for High Court to dismiss writ petition after 15 years just because alternate remedy at CESTAT is available, especially when issue is settled by Supreme Court: In the above said background, we are of the view that the learned single Judge, after keeping the cases pending for more than seven years from the date of their filing, i.e. in 1992/1993, on the request of the learned Standing Counsel appearing for the Central Government, awaiting the decisions of the Central Government and after the issuance of Central Government Notification No.104 of 1983, dated 28.12.1993, clarifying on the matter by making amendment to the relevant Notification, it was not desirable for the learned single Judge to ask the appellant-writ petitioner-assessee-Madura Coats Limited, to avail of the alternative remedy of appeal before the CEGAT /CESTAT”: MADRAS HIGH COURT;

2008-TIOL-1884-CESTAT-DEL-LB.pdf + H M T & Ors Delhi story.pdf

M/s H M T & Ors Vs CCE, Panchkula (Dated: October 24, 2008)

CENVAT Credit – Input credit legally availed when final products are dutiable not to be reversed when final products are exempted subsequently – CESTAT Five Member Larger Bench decision in Ashok Iron & Steel Fabricators [ 2002-TIOL-274-CESTAT-DEL-LB ] and Supreme Court decision in Dai Ichi Karkaria [ 2002-TIOL-79-SC-CX ] followed : DELHI CESTAT (Larger Bench);

2008-TIOL-1883-CESTAT-BANG.pdf

M/s Arani Agro Oil Industries Ltd Vs CCE, Visakhapatnam (Dated: August 7, 2008)

Central Excise – When finished goods become exempt in subsequent year balance 50% of CENVAT Credit on capital goods solely used for manufacture of exempt goods not allowable – In view of bonafide belief of eligibility due to interpretation of provisions penalty not imposable : BANGALORE CESTAT;

2008-TIOL-1882-CESTAT-MAD.pdf

M/s Origon Systems Vs CCE, Chennai (Dated: September 2, 2008)

Central Excise – demand of duty on computers - the department had come to know of the manufacturing activity by the appellants on 02.09.98, a demand notice could not have been issued invoking larger period beyond the normal period of six months from 02.09.98 – demand notice barred by limitation. : CHENNAI CESTAT;

SERVICE TAX SECTION

2008-TIOL-1880-CESTAT-DEL.pdf + daelim story.pdf

CCE, Raipur Vs M/s BSBK Pvt Ltd (Dated: October 24, 2008)

Service tax - turn-key projects - whether can be vivisected and part of it be subjected to service tax - ratio of Daelim case differed - matter referred to Larger Bench.

After the 46th amendment to the Constitution of India, the "dominant nature" test or "substance" test was held to be applicable only in cases not falling under any of the clauses of Article 366(29-A) - the dominant nature test cannot be applied in the case of works contract falling under clause (b) of Article 366(29-A), and therefore it cannot be pressed into service for treating turn-key works contract - If 'works contract' can be split into sale contract and service contract, a different treatment may not be given to the so-called turnkey contract simply because the contract is on a turnkey basis.:DELHI CESTAT;

2008-TIOL-1879-CESTAT-DEL.pdf

M/s Samcor Glass Ltd Vs CCE, Jaipur-I (Dated: October 13, 2008)

ST-Consulting Engineering service-since the demand pertains to period prior to 1.1.05 the assessee is not liable to pay tax as per decision of the Larger Bench in Hindustan Zinc case 2008-TIOL-1149-CESTAT-DEL-LB :DELHI CESTAT;

2008-TIOL-1878-CESTAT-DEL.pdf

M/s WLC College India Ltd Vs CST, Delhi (Dated: October 15, 2008)

ST - Vocational training - benefit of Notification no 9/2003-Service Tax - Revenue denies the benefits for management training imparted by the assessee on the ground that the same is not for self-employment - Since the issue is pending with the High Court and the assessee has made substantial deposits, waiver of pre-deposit for the rest of the sum granted with stay:DELHI CESTAT;

CUSTOMS SECTION

NOTIFICATION

cnt08_127.pdf

Tariff value for brass scraps and poppy seeds revised;

dgft08pn107.pdf

Export of high value added manufactured goods and market linked focus market scheme - Application Form amended;

CASE LAWS

2008-TIOL-1881-CESTAT-MAD.pdf

CC, Chennai Vs M/s Standard Industrial Oils P Ltd (Dated: September 2, 2008)

Customs – valuation – know how fee - the payment of know how fee was not a condition for the sale of the goods - no conditions for applicability of Rule 9(1)(c) existed in the case - not liable to be added to the transaction value of the goods imported. : CHENNAI CESTAT;