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Interim Budget 2009: An opportunity lost! (See 'Common Basket') SSI Exemption and CENVAT Credit - Branded Goods -Long Pending Issue Solved (See 'DDT') Govt issues guidelines for calculation of total FDI - direct & indirect - into Indian Cos; Govt notifies guidelines for transfer of ownership of Indian Cos in sectors with caps from Indian citizens to non-resident; CBDT notifies Wealth Tax (Second Amendment) Rule, 2009; Combating terrorism: PC says Delhi Police needs to be innovative and imaginative; Manufacturing badly hit; Services sector showing weakening signs: CII Study; Rs 2000 Cr fund earmarked for Crime & Criminal Tracking Network & System project; Innovation in education a stiff challenge in 21st century: Pitroda; New CBDT Member Sudhir Chandra gets Audit & Judicial charge; CBDT Chairman to hold zonal charge of Mumbai + New Member Sudhir Chandra gets Delhi & NWR Zone; |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY Vishesh Krishi Gram Udyog Yojana scheme - Applicability of Notification No 41/2005-Cus CBEC Clarifies ; Interim Budget 2009: An opportunity lost! PRESS NOTE Foreign investment in Print Media dealing with news and current affairs Guidelines for calculation of total foreign investment i.e. direct and indirect foreign investment in Indian companies. Guidelines for transfer of ownership or control of Indian companies in sectors with caps from resident Indian citizens to non-resident entities. Foreign Direct Investment data/analysis - Regarding; MIXED BUZZ Rs 2000 Cr fund earmarked for Crime & Criminal Tracking Network & System project; Govt issues guidelines for calculation of total FDI - direct & indirect - into Indian Cos; Govt notifies guidelines for transfer of ownership of Indian Cos in sectors with caps from Indian citizens to non-resident; Manufacturing badly hit; Services sector showing weakening signs: CII Study; Innovation in education a stiff challenge in 21st century: Pitroda ; |
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NOTIFICATION CBDT notifies Wealth Tax (Second Amendment) Rules related to rule 3A ; CASE LAWS CIT, Delhi Vs Pawan Kumar Garg (Dated: January 16, 2009) Income tax - Sec 132(1) - Search conducted on the premises of the assessee - issue of warrant of authorisation - assessee challenges that Additional Director does not figure in the list of officers who are authorised to issue warrants - Tribunal holds Additional Director is not authorised by the law and the entire search operation and the subsequent assessment proceedings were bad in law - held, there was no concept of a Joint Director prior to 01.10.1998. Since the definition of Additional Director has been inserted with retrospective effect from 01.06.1994, the legislature clearly made the distinction between a Joint Director and an Additional Director. The manner in which the expression "Joint Director" has been used in Section 132(1) requires the same to be interpreted in its limited sense as meaning only the Joint Director and not an Additional Director of Income-tax. This is so because had the legislature intended to include an Additional Director of Income-tax, it would have done so specifically in Section 132(1) itself - Revenue's appeal dismissed:DELHI HIGH COURT; CIT, New Delhi Vs M/s Nalwa Investment Ltd (Dated: February 6, 2009) Income tax - Assessee makes investments in shares under special arrangement with UTI - makes losses by selling Detachable Warrants - files return - subsequently revises return and hikes quantum of loss claimed earlier - AO disallows but Tribunal directs the AO to allow it as business loss - AO allows the same but disallows carry forward of the same - held, the AO exceeded his jurisdiction by not giving full effect to the order of the Tribunal and what was due to the assessee as per laws - Revenue's appeal dismissed:DELHI HIGH COURT; 2009-TIOL-111-ITAT-PUNE.pdf + bsnl story.pdf Bharat Sanchar Nigam Limited Vs ITO, Jalgaon (Dated: January 30, 2009) Income tax - CoD - assessee is a PSU - pays commission to STD/PCO booth operators - defaults in TDS u/s 194H - demand raised under Ss 201(1) and 201(1A) - Revenue initiates recovery process - issues garnishee notices and freeze bank accounts - Assessee makes reference to CoD and informs Revenue - seeks stay of recovery process - held, it is settled law that as soon as a reference is made to the CoD, recovery process automatically gets suspended, and during period of suspension any step taken to make recovery will be legally unsustainable and grant of stay by the Tribunal at this stage will only be an academic and parallel exercise which is not warranted - Assessee's petition dismissed:PUNE ITAT; ACIT,New Delhi Vs Galileo International Inc (Dated: November 21, 2008) Income tax - ROM - Indo-US DTAA - Revenue points out mistakes apparent and seeks rectification u/s 254(2) - Revenue points out what the order has attributed to is revenue and not apportioned income or profit which is taxable in India - held, for computation of any income the first point is to apportion the revenue from the operations carried out in India. Unless the revenues are attributed, the income which is a second step cannot be attributed. However, after apportioning revenue, since it was found that out of apportioned revenue, the remuneration payable to the agent in India exceeds such apportioned revenue, no income is further taxable in India. Therefore, there is no mistake apparent on record.:DELHI ITAT; Siemens Public Communication Networks Ltd Vs CIT, Bangalore (Dated: January 16, 2009) Income tax - Sec 10B - assessee is into export of computer softeare - has two divisions, located at two different places - surplus generalted by the export division is utilised by the second division - interest adjustment for staff loan and loan to second division is made by the assessee for claiming Sec 10B benefits - AO disallows and CIT(A) agrees with him - held, in this case, the assessee is the same and no separate balance sheets have been prepared for both the undertakings. Only funds received have been bifurcated. Sale proceeds contain cost element and profit element. In absence of details, working of notional interest is not reliable. In case the funds were available from the export oriented undertaking and have been utilized for the other undertaking, then such interest derived on notional basis cannot be considered for the purpose of deduction u/s 10B - CIT(A) order upheld and assessee's appeal dismissed Assessee claims deduction for provision for warranty - AO disallows - held, it is settled law that provision for warranty is a revenue expenditure and it cannot be disallowed:BANGALORE ITAT; |
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| SERVICE TAX SECTION 2009-TIOL-288-CESTAT-BANG.pdf + stgst.pdf M/s Pasha Educational Training Institute Vs CCE, CC & ST, Hyderabad (Dated: December 4, 2008) Service Tax - Commercial Coaching or training - Institute imparting skill or knowledge on the subject of insurance covered A perusal of the syllabus shows that the appellant imparts very comprehensive training for insurance agents. There is also an approval of the institute by the Insurance Regulatory and Development Authority. On going through the nature of the training, it is clear that the said training can be considered as Commercial Training or Coaching because the Institute imparts skill or knowledge on the subject of insurance. But training is vocational and exempted by Notification No. 9/2003 :- However, the second point to be noted is whether the said training can be considered as a vocational training. Vocational training means training that imparts skills to enable the trainee to seek employment or undertake self employment directly after such training or coaching. This definition should not be interpreted in a very narrow sense as done by the Commissioner (Appeals). The argument of the Commissioner (Appeals) is that even after the training, the trainee should again write examination conducted by IRDA to qualify to work as Insurance Agent under the Insurance Act, 1938. We should not forget that the comprehensive training given by the appellant enables the trainees to appear for the examination conducted by IRDA. Moreover, the appellant institute is also recognized for imparting training by the IRDA. In these circumstances, we cannot say that the training imparted is not a vocational training. We are of the view that the training imparted should be considered to be a vocational training. Once, it is held that the appellant imparts vocational training, then they would be entitled for the benefit of exemption notification 9/2003 ST as amended.:BANGALORE CESTAT; Punjab National Bank Vs CCE, Chandigarh (Dated: December 17, 2008) ST - Banking and Financial Services - assessee is a public sector bank - installs Magnetic Ink Character Recognition (MICR) to clear cheques - Revenue raises demand for the same - tax with interest paid - assessee contests imposition of penalty - Commissioner(A) sets aside penalty under Sec 78 - Since confusion prevailed about the service whether the same being covered under the taxable service or not and then the CBEC issued the clarification on a reference from the RBI, Sec 80 is invokable in this case - assessee's appeal allowed:DELHI CESTAT; M/s Shri Maheshwari Mills Vs CCE, Indore (Dated: January 15, 2009) ST - C & F Service - Are transport charges includible in the gross value of taxable service? - Since the transport charges are reimbursed by the service receiver, and similar issues have already been referred to the Larger Bench, waiver from pre-deposit granted:DELHI CESTAT; M/s B E Gelb Consultancy Services Vs CCE, Coimbatore (Dated: January 2, 2009) Service Tax Consulting Engineer vis-a-vis Intellectual Property Service The appellants received royalty for providing technical know-how The service is appropriately classifiable under Intellectual Property Service not taxable during disputed period. ( Para 3):CHENNAI CESTAT;
Availing SSI exemption & Cenvat Credit: CBEC issues Instruction; CASE LAWS 2009-TIOL-17-SC-CX.pdf + malwa story.pdf CC, Amritsar Vs M/s Malwa Industries Ltd (Dated: February 12, 2009) Central Excise Exemption 'Used within the same factory' does not mean that the goods which were to be used must be manufactured in the same factory . It only means that the imported goods are required to be used in the factory belonging to the importer where the manufacturing activity takes place. There cannot be any doubt whatsoever that if excise duty is not leviable on manufacture of goods, the question of the importer paying any additional duty for import of like goods would not arise. An exemption notification should be read literally. A person claiming benefit of an exemption notification must show that he satisfies the eligibility criteria. Once, however, it is found that the exemption notification is applicable to the case of the assessee, the same should be construed liberally. Revenue Appeal dismissed with costs: For the reasons mentioned, there is no merit in these appeals which are dismissed accordingly with costs. Counsel's fee assessed at Rs. 50,000/-: SUPREME COURT; Ennore Foundries Ltd Vs CCE, Chennai (Dated: November 19, 2008) prior to finalization of provisional assessment. Manufacturer is liable to pay interest on the differential amount of duty. As it is not clear from the records whether the amount of interest demanded was in excess of the interest computed for the period between receipt of additional amount and payment of duty thereon in cases of receipt of additional amounts, matter remanded to quantify the interest liability. :CHENNAI CESTAT; Sterlite Industries (I) Ltd Vs CCE, Tirunelveli (Dated: October 21, 2008) Central Excise denial of permission to remove copper anode and copper cathode under Rule 16 B of the Central Excise Rules, 2002, on the ground that they are not semi-finished goods Commissioner appears to have overlooked the fact that these goods were cleared to their sister unit for conversion into finished goods order set aside. We are at loss to understand why the above stand has been taken by the Commissioner in respect of goods which were accepted as semi-finished goods for earlier period.:CHENNAI CESTAT; M/s ACE Techniks Vs CCE, Bangalore (Dated: September 9, 2008) Central Excise Refund under Rule 5 of CCR available only for credit attributable to inputs consumed in goods exported Refund not available for unutilized credit attributable to inputs lying in stock & WIP :BANGALORE CESTAT;
CUSTOMS SECTION NOTIFICATION CBEC revises tariff value of poppy seeds & brass scraps; Clarification on grant of SFIS benefits to Service providers under EPCG scheme for the period 1.4.2007 -31.3.2008; CASE LAWS 2009-TIOL-16-SC-CUS.pdf + cus sc story.pdf M/s Varsha Plastics Pvt Ltd Vs UoI (Dated: February 5, 2009) Customs Valuation - once nature of goods has been mis -declared, the value declared on the imported goods becomes unacceptable It does not in any way affect the legal position that the burden is on the Customs Authorities to establish the case of mis - declaration of goods or valuation or that the declared price did not reflect the true transaction value. Once transaction value is rejected on valid grounds, the Customs Authority has to proceed to determine the value of goods by following Customs Valuation Rules and on the basis of contemporaneous import. However, in the absence of any evidence with regard to contemporaneous import, reference to foreign journals that may indicate the correct international price for the purposes of Section 14 may not be irrelevant and relying upon such journal cannot be said to be altogether unreasonable. As to whether in a given case such foreign journal or for that matter PLATT's Price Report indicate correct international price of the concerned goods for the purpose of Section 14(1) would depend on facts of each case and that would be for the department to establish. The valuation of the imported goods where the transaction value in the opinion of Assessing Authority is liable to be rejected because of invoice manipulation or under-invoicing or un-realistic price or mis -declaration in respect of valuation of goods or description or where transaction value of the goods declared is ridiculously low, which of course the Assessing Authority has to justify, he must proceed to determine valuation of goods by following Customs Valuation Rules. Chief Commissioner's Standing Order is only for guidance, not mandatory In view of the categorical stand of the Department that the impugned Standing Order is just in the nature of guidelines and it does not in any way interfere with the discretion of officers, the impugned Standing Order has to be read and understood accordingly.:SUPREME COURT; M/s Hindustan Petroleum Corportion Ltd Vs CC, Chennai (Dated: November 20, 2008) Customs Import Provisional assessment Refund Unjust enrichment Amendment to Section 18 of the Customs Act, 1962 incorporating relevant portion on unjust enrichment came into effect only from 13.07.2006 and not prior to that date. Bar of unjust enrichment not applicable to cases of provisional assessment prior to 13.07.2006. Appeal allowed. ( Para 3) :CHENNAI CESTAT; |
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