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Income Tax - Sec 14A is not applicable to Insurance Companies, rules ITAT (Look for latest order tomorrow) Income Tax – TDS and TCS – IT Rules amended (See 'DDT') CBEC Notifies Handling of Cargo in Customs Areas Regulations (See 'DDT') Economic crisis poses dire future for forests, warns UN Report; UN human rights chief to visit India this week; Japan may collaborate in India's capital intensive sectors: Dr Kondo; UN new guidelines target internet drug dealers;
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY No Message; Only Work – New President of CESTAT; Banyan Tree: The Management Guru! MIXED BUZZZ Economic crisis poses dire future for forests, warns UN Report; UN human rights chief to visit India this week; Japan may collaborate in India's capital intensive sectors: Dr Kondo; UN new guidelines target internet drug dealers; |
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2009-TIOL-133-HC-P&H-IT.pdf + HC it story.pdf CIT, Chandigarh-II Vs M/s Oscar Laboratories Pvt Ltd (Dated: February 26, 2009) Income Tax – appeals –even when there is a question of law, the monetary limits fixed by the Board have to be adhered to. Monetary limits are fixed for alleviating unnecessary hardship to assesses, possibly even to avoid unnecessary financial hardship and long drawn appellate proceedings even for the Revenue – the object of issuing such instruction was apparent and obvious, namely, alleviating unnecessary hardship to assesses, possibly even to avoid unnecessary financial hardship and long drawn appellate proceedings even for the Revenue, where likely gains were negligible. There can be no doubt, that the process of litigation is a financial hardship. An individual assessee may have to suffer the hardship far beyond the effect thereof on the Revenue. The Revenue also incurs financial expense, which when taken to its logical effect, falls on the shoulders of the general public as the same is incurred out of money collect from innocent tax-payers. Filing of an appeal should be a fruitful exercise. An appeal should not be filed only to press a proposition of law , unless it results in an adverse inference against the Revenue. The veracity of filing an appeal must be gauged with reference to the tax, which is likely to be recovered by the Revenue, on the success thereof. If the proportion of the recovery of tax as against the expenses incurred in pursuing the appellate remedy is negligible, and there is no other adverse effect, the inference should be, that the remedy of appeal would be an exercise in futility. In such an eventuality, an appeal should not be filed. The monetary limits binding: They cannot be treated as an arbitrary imposition on the Department of Revenue. The Department of Revenue having chosen on its own volition, the monetary limits for filing appeals to challenge orders passed in favour of assessees, cannot be heard to deviate therefrom . The submission advanced by the Revenue, to the effect that an appeal can be filed by the Revenue in all cases where a substantial question of law arises, and that, the right of the Revenue to file an appeal cannot be restricted, deserves to be rejected, and is accordingly, rejected. It is open to the respondent - assessee to repudiate not only the legal submissions advanced in an appeal on behalf of the Revenue, but also, any other legal submission that may arise therein. What seems to have been over-looked by the appellant - revenue is, that a plea raised by an assessee under Section 268-A of the Act, is also a plea on a proposition of law. Furthermore, under sub-section (6) of Section 260- A of the Act, it is also open to this Court to decide such questions of law, which have not been determined hitherto before:PUNJAB AND HARYANA HIGH COURT; CIT, Bombay Vs M/s Bajaj Auto Ltd (Dated: March 2, 2009) Income tax - Sec 32(1) - canteen in factory - higher depreciation claimed - Revenue disallows - held, since under the Factories Act, factories which employ more than 250 workers are mandatorily required to provide canteen facility, and thus canteen is a necessary adjunct to the factory building - since canteen does not figure in the list of assets which attract lower depreciation drate and is also not excluded from the term factory, it is entitled to higher depreciation - Revenue's appeal dismissed:BOMBAY HIGH COURT; CIT, Faridabad Vs Shri Brij Pal Sharma (Dated: February 17, 2009) Income tax - Sec 40A(2)(b) - Assessee claims deduction for expenses related to truck charges - AO invokes Sec 40A(2)(b) as it finds excessive payment to an enterprise run by the son of the assessee - Tribunal deletes the disallowance - held, going by the fact that the assessee had made similar payments to another construction company and the rates were higher than the one paid to the enterprise of his son, Tribunal was right in concluding that the payment made cannot be termed as excessive and unreasonable - Sec 40A(2)(b) cannot be invoked - Revenue's appeal dismissed:PUNJAB AND HARYANA HIGH COURT; CIT, Bangalore Vs M/s Wipro Ltd (Dated: January 22, 2009) Income tax - TDS u/s 192 - Assessee issues shares under stock option plan to employees - Revenue for tax deduction at source - held, issue is no longer res integra as it is decided in favour of the assessee by the Apex Court in the Infosys Technologies case ( 2008-TIOL-01-SC-IT ) - Revenue's appeal dismissed KARNATAKA HIGH COURT; 2009-TIOL-168-ITAT-MUM-SB.pdf + spl down.pdf DDIT, Mumbai Vs J M Baxi & Co (Dated: March 05, 2009) Agent of a non-resident can be independently taxed as a representative assessee; The option is with the Income-tax authorities and not with the non-resident or his agent to claim that he be assessed under a particular clause of section 163; The word "including" or "includes" enlarges the meaning of the expression and effect is to import and add things or person which would not otherwise be regarded as 'included' in that sense. – ITAT SP Bench: Even if you are an 'agent' U/S 163(1), your liability is equated with the agent of the non-resident under clause (i) of sub-section (1) of section 160. The agent of the non-resident, as per above provision, is agent including a person who is treated as an agent U/S 163. The word "including" or "includes" enlarges the meaning of the expression and effect is to import and add things or person which would not otherwise be regarded as 'included' in that sense. Having regard to above terms, it cannot be disputed that assessee is agent of the non-resident. The assessee never disputed its liability to be assessed as agent of the non-resident. Not only income tax returns were signed and filed as agent for and on behalf of the non-resident, but several other documents were furnished with the income tax authorities including an undertaking that taxes due from the non-resident would be paid by the assessee agent. Having regard to above clear and undisputed facts, it was not necessary for authorities in this case to provide any opportunity of being heard to the assessee as regards his liability to be treated as an agent under the Act. In fact, it would have looked absurd to provide such an opportunity of being heard to a person who has accepted and never disputed his liability to be assessed as an agent. Therefore, there was no occasion to pass any order U/S 163(2) of the LT. Act. In other words, there was no question of "treating the assessee as an agent of the non-resident" and, therefore, provision of Section 149(3) had no application in this case.:MUMBAI ITAT (SPECIAL BENCH); ITO, Tirupur Vs M/s T Neeraj (Trust) (Dated: December 18, 2008) Applicability of Sec. 164 – Income accrued to trust – subsequent apportionment among beneficiaries is only application of such income As per the Trust deed, 90% of the trust income was set apart in the name of a minor and has to be given to him only after he attains majority. Assessee claimed exemption from tax on such 90% income on the plea that the minor has not received the income during the year and hence his representative cannot be taxed on such income. On appeal Tribunal held that the share of the beneficiary in the income of the Trust is an accrued income of the beneficiary for the relevant year and the mere restriction of utilizing the same for a particular period cannot change the character of income. Appeal by Revenue allowed.:CHENNAI ITAT; |
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SERVICE TAX SECTION NOTIFICATION Service Tax Rule amended to insert Return Preparer Code in Form ST-3; CASE LAWS 2009-TIOL-445-CESTAT-MAD.pdf + Trichy Institute story.pdf M/s Trichy Institute Of Management Studies Pvt Ltd Vs CCE, Tiruchirappalli (Dated: January 16, 2009) Service Tax - Study Centres of University collecting fees directly from students – liable to pay tax under “commercial coaching and training”: Exemption under Notification No.10 /03 ST is extended to commercial training and coaching centres that give tuition to the students who receive University degrees on passing the end of the course examination and do not collect fees directly from the students. Like the regular colleges, the centres also charge for the services and collect the fees directly from the students. Such commercial training or coaching centres are not eligible for the exemption. Moreover, even if regular colleges are wrongly allowed the exemption that cannot be a ground to grant the exemption to the centres unless they satisfy the conditions of the notification. There is no dispute that the appellants do not satisfy one of the two conditions of the notification. The only-ground taken in support of the claim by the centres is that the authorities do not tax similar other providers of service. Centres cannot validly take this ground to claim the benefit. :CHENNAI CESTAT; CCE & ST, Siliguri Vs M/s Mount Distilleries Ltd (Dated: January 9, 2009) ST - Refund - Revenue sanctions refund claims - Commissioner holding additional charge passes Review Order under Sec 84 - held, Revenue has no case as Commissioner holding additional charge is not notified to act as Commissioner - Revenue's appeal dismissed:KOLKATA CESTAT; M/s Chemplast Sanmar Ltd Vs CCE, Salem (Dated: January 16, 2009) Service Tax – CENVAT – Documents for availing credit – Stay / Waiver of pre-deposit - The appellants had availed credit against ‘debit notes' which is not one of the prescribed documents for the purpose under Rule 4A of STR. However, there is no dispute that the document contained all the items of information prescribed in the relevant rule. In the absence of a case that the appellants had not received the impugned services, prima facie, credit could not be denied solely for the reason that the documents was titled ‘debit note'. Stay granted. (Para 3):CHENNAI CESTAT;
2009-TIOL-448-CESTAT-DEL.pdf + Paras story.pdf M/s Paras Fab International Vs CCE, Jaipur (Dated: January 22, 2009) DTA clearance from EOU – Exemption to terry towels made out of duty paid fabrics – As the EOU obtained the inputs under CT-3 without duty, not eligible for exemption: the finished goods - terry towels have been made from inputs procured free of central excise duty. Therefore, in view of the above circular of the Board, which is based on the judgment of the Constitutional bench of Hon'ble Supreme Court in the case of CCE, Vadodara vs Dhiren Chemical Industries , the benefit of exemption under Notification No.15/02-CE would not be available.:DELHI CESTAT; CCE, Pune-II Vs M/s Rallies India Ltd (Dated: December 3, 2008) Central Excise – Credit of service tax paid on outdoor caterers not deniable in view of larger bench decision in CCE, Mumbai vs. GTC Industries Ltd [2008-TIOL-1634-CESTAT-MUM-LB ] – Impugned order upheld:MUMBAI CESTAT; M/s Sterling Gelatin Vs CCE , Vadodara (Dated: February 4, 2009) Central Excise – Dutiable and exempted goods – 10% payment not applicable to by-products – pre-deposit waived:AHMEDABAD CESTAT;
CUSTOMS SECTION NOTIFICATION cnt09_026.pdf + cnt09_027.pdf + cnt09_028.pdf + cnt09_029.pdf + cnt09_030.pdf + cnt09_031.pdf + cnt09_032.pdf + cnt09_033.pdf + cnt09_034.pdf + cnt09_035.pdf + cnt09_036.pdf CBEC appoints common adjudicating authorities for DRI cases; DGFT extends ban on edible oil for one more year; Mahatma Gandhi's belongings can now be freely imported; DGFT allows import of antiques of age exceeding 100 years; CASE LAW M/s Volvo India Pvt Ltd Vs CC, Chennai (Dated: January 7, 2009) Customs –Import – Provisional Assessment – Clerical Error – Refund - Revenue held that refund of the excess duty paid by mistake could not be allowed before finalizing the provisional assessment. In a case of conspicuous short payment or excess payment of duty by mistake outside the dispute leading to provisional assessment, it will be legal and proper for the department to recover the short paid duty or the assessee seeking refund of the excess duty during provisional assessment. In either case the parties cannot be held to suffer prejudice. No provision in the Act prohibits rectification of the errors in the provisional assessment under Section 154 and allowing the importer consequential relief. Grant of refund arising out of such rectification shall be subject to the provisions of Section 27 (2) of the Act prescribing test of unjust enrichment. (Para 4 & 4.1): CHENNAI CESTAT; |
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