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Implementation of New Form 17 for TDS payment postponed to July 1, 2009; TDS to be deposited as usual in existing challans - 281, 282 & 283; I-T - Once mandate of Sec 271(1)(c) is satisfied, there is no further onus on AO to establish mens rea - Views expressed in Dharmedra Textile case cannot be viewed as authority for proposition that penalty is automatic consequence of addition made to income: ITAT (See 'Direct Tax Basket') Central Excise – Demand of CENVAT credit not sustainable when notification specifically provides for exemption subject to non-availment of CENVAT credit on inputs – Revenue ought to demand duty on finished goods and deny exemption benefit for violation of condition: CESTAT (See 'Indirect Tax Basket') Addition of an amount of 2% of assessable value as cost of 'design and drawing charges' is totally subjective and imaginary and has no legal basis – Revenue appeal rejected by Tribunal (See 'Indirect Tax Basket') Ban of export non-basmati rice not applicable to export of rice to certain countries + Import of waste paper - DGFT's further Clarification; Retail sale of Oseltamivir phosphate (Tamiflu) not permitted in India: Govt; Israel for greener Rajasthan through olive plantation; Export of Acetic anhydride to Afghanistan: Customs arrests three persons; Appellate Authorities should dispose of Stay Applications expeditiously; so long stay application is not disposed of, AO must be slow or reluctant in initiating recovery process - CBDT directed to issue Circular - No recovery during pendency of stay petition: High Court (See 'DDT'); SC rules in favour of Tata Power-BEST power purchase deal; imposes cost of Rs one lakh on Reliance Energy; Govt tells SC it will implement new warning symbol on tobacco products from May 31, 2009; |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY Implementation of Phytosanitary requirements in import or export of goods – CBEC Clarification; Mr Obama, amending tax code cannot prevail over economics of global business; Tax haven issue: India needs to review all DTAAs! MIXED BUZZ Abandoned fishing gear hurting marine stocks: UN Study; Export of Acetic anhydride to Afghanistan: Customs arrests three persons; Israel for greener Rajasthan through olive plantation; |
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Applications for Income Tax Ombudsman posts: Finance Ministry extends last date to May 15, 2009; CASE LAWS Smita Agrawal, HUF Vs CIT, Kanpur (Dated: April 8, 2009) Appellate Authorities should dispose of Stay Applications expeditiously; so long the stay application is not disposed of the Assessing Officer must be slow or reluctant in initiating recovery process .- CBDT directed to issue Circular: ALLAHABAD HIGH COURT; Geo Enpro Petroleum Ltd Vs DCIT (Dated: May 4, 2009) Income tax - Sec 80IB(9) - assessee as a member of a consortium bids for oil wells - signs production sharing agreement - claims start of commercial production in 1995 - later revises its statement and claims commercial production began from 1998-99 - AO disallows - held, since commercial production commenced in the year relevant for assessment year 1996-97, deduction available for seven consecutive years to be counted from this period - Assessee's appeal dismissed :DELHI HIGH COURT; 2009-TIOL-278-ITAT-PUNE.pdf + pune story.pdf Kanbay Software India Pvt Ltd Vs DCIT, Pune (Dated: April 28, 2009 ) Once the mandate of section 271(1 )( c) are satisfied, there is no further onus on the Assessing Officer to establish mens rea . It is thus clear that, in the considered view of Hon'ble Supreme Court, it is no longer necessary that Revenue is required to prove mens rea and , therefore, independent finding about conscious concealment is no longer a condition precedent for imposition of penalty under section 271(1)(c) read with Explanation 1 thereto. The school of thought casting onus on Revenue to prove mens rea , as advocated by large number of judicial precedents relied upon by the assessee, has been thus specifically rejected by the Hon'ble Supreme Court. The views expressed in Dharmedra Textile Processors' case cannot be viewed as an authority for the proposition that a penalty under section 271(1 )( c) is an automatic consequence of an addition being made to income: whether it is a civil liability or a criminal liability, penalty under section 271(1)(c) can only come into play when the conditions laid down under that section are to be satisfied. By no stretch of logic or rationale it could be said that imposition of penalty under section 271(1 )( c) has a cause and effect relationship with addition being made to the returned income per se. An addition being made to income does, because of impact of Explanation 1, effectively does raise a presumption against the assessee but that is an entirely rebuttable presumption and the scheme of rebuttal is provided in the Explanation itself. Onus Shifted: All that the Explanation 1 to Section 271(1 )( c) does is to shift the onus of proof from Assessing Officer to the assessee; instead of Assessing Officer being under an obligation to establish the malafides of the assessee, the onus is now on the assessee to establish his innocence and righteous conduct. As a matter of fact, as a result of the Explanation 1 to Section 271(1 )( c) in its present form, the burden of proof has entirely shifted to the assessee, and it is this paradigm shift which is one of the most important feature of rule of evidence in civil proceedings as distinct from criminal proceedings.:PUNE ITAT; Maharstra State Warehousing Corp Ltd Vs DCIT, Pune (Dated: February 26, 2009) Income tax - Dispute between Revenue and a State Public Sector undertaking - held, appeal cannot be heard in view of the SC decision in ONGC case where even State Govt PSUs need clearance from Committee on Dispute. If the assessee furnishes adequate evidence that no such committee exists at the State-level, the issue may be considered again - Appeal dismissed:PUNE ITAT; Siemens Power Engineering Pvt Ltd Vs ACIT (Dated: April 30, 2009) Income tax - Sec 32 - Assessee claims 40% depreciation on commercial vehicle - AO makes disallowance by allowing it at 20% - CIT(A) agrees with the AO - held, since the issue was decided in favour of the assessee in earlier AYs and other judicial decisions tend to support the same, the depreciation as per third proviso to Sec 32(1) is allowable at the rate of 40% - Assessee's appeal allowed:DELHI ITAT; |
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SERVICE TAX SECTION M/s Santosh Associates Vs CST, Ahmedabad (Dated: April 6, 2009) Service tax - construction service - assessee avails Cenvat credit as well as abatement of 67% - demand and penalty confirmed - held, since the assessee had provided the service before the Board's notification making availment of cenvat credit inadmissible for assessee if one avails abatement, and the notification had come later, the assesse is entitled to relief - Assessee's appeal allowed :AHMEDABAD CESTAT; M/s Gujarat Enviro Protection & Infrastructure Ltd Vs CCE, Surat-I(Dated: April 16, 2009) ST - Business Auxiliary Service - Assessee is involved in treatment, storage and disposal of solid industrial waste as per authorisation by the Pollution Control Board - Since the Tribunal has granted stay in a similar case based on Board's letter, stay granted and matter remanded:AHMEDABAD CESTAT;
2009-TIOL-723-CESTAT-AHM.pdf + Arvind Mills Ltd story.pdf Arvind Mills Ltd Vs CCE, Ahmedabad (Dated: March 17, 2009) Central Excise – Demand of CENVAT credit not sustainable when notification specifically provides for exemption subject to non-availment of CENVAT credit on inputs – Revenue ought to demand duty on finished goods and deny the exemption benefit for violation of condition :AHMEDABAD CESTAT; 2009-TIOL-722-CESTAT-MUM.pdf + Maharashtra Scooters Story.pdf CCE, Pune Vs M/s Maharashtra Scooters Ltd (Dated: March 24, 2009) Addition of an amount of 2% of assessable value as the cost of “design and drawing charges” is totally subjective and imaginary and has no legal basis – Revenue appeal rejected by Tribunal. Tribunal's observations – We find that 17 show cause notices issued to the assessee during 1992 to 1999 purport to add 2% of the value of the goods as ‘design and drawing' charges and to recover duty on the additional added value. It is also seen that the price is agreed and contracted between the assessee and their customers. The assessee have not recovered anything over and above the price contracted. There is no allegation regarding flow back of any additional consideration from the customers to the assessee. We find that the addition of the amount of 2% of the assessable value for working out the duty liability is totally subjective and imaginary and has no legal basis. The ratio of the various case laws cited by the Revenue in their appeal memorandum is not applicable as in those case laws the charges for drawing and designing were recovered by the assessees from the customers whereas in the case before us, no such charges have been recovered by the assessee from the customers. Commissioner(Appeals) order held sustainable. Revenue appeal was rejected.:MUMBAI CESTAT; Indian Nippon Electricals Ltd Vs CCE, Chennai (Dated: February 10, 2009) Central Excise – CENVAT – Used Capital goods – Cleared as such - In terms of Rule 3 (4) of CCR, credit equal to the amount availed has to be reversed when capital goods are removed ‘as such'. Used capital goods are also covered by the expression ‘as such' occurring in Rule 3 (4) of CCR. ( Para 2):CHENNAI CESTAT;
CUSTOMS SECTION NOTIFICATION Ban of export non-basmati rice not applicable to export of rice to certain countries CIRCULAR Import of waste paper.; CASE LAWS Shree Krishna Traders Vs CC, Faridabad (Dated: March 25, 2009) Customs - import of hazardous waste - confiscation - the ground that the goods were imported in the year 1999 and the circulars issued in the year 2001 or 2002 based on the judgment of Supreme Court laying fresh norms for testing of the material would not apply to the transaction of import made earlier is an ill advised argument - no question of law much less substantial question of law would arise. :PUNJAB AND HARYANA HIGH COURT; M/s Arvind Enterprises Vs CC, Mumbai (Dated: January 15, 2009) Refund - A ppellant's liability to pay duty on imported goods finally adjusted by department through adjudication order – Refund of excess amount as a consequence of an adjudic ation order – Expression ‘adjusted' indicates that excess deposits are required to be refunded – Appellant would not know before 13.6.1997 that they are entitled for refund – Refund application filed within six mo nths of order not hit by limitation – Impugned order holding refund claim as time barred set aside :CHENNAI CESTAT; |
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