First & Budget Session for 15th Lok Sabha to begin on June 2, 2009;

Authors of Manuals - not updated (See 'DDT')

SP, Bodoland & Sikkim Democratic Front hand over letters to President for support to UPA-led Govt;

EDI-related frauds: CBEC issues instruction to field formations on maintaining password;

Addl SG declines to accept notice on behalf of outgoing Govt; SC reminds Amarinder Saran that 'Govt never ceases to exist';

L&T signs MoU with GE Hitachi for ABWR & BWR Nuclear Power Plants in India;

Impact of slowdown in last Q of last fiscal: More people lost jobs in export units than non-export units - Govt;

FDI distortions to go but no change in retail FDI for now: Kamal Nath;

TIOL COMMENTARY

ddt 19 May.pdf

Babus who delay in filing appeals on time in for trouble – Supreme Court orders recovery of costs and criminal action!

stgst.pdf

Service tax on renting of immovable properties - A way forward!

CASE LAWS + ANALYSIS

2009-TIOL-72-SC-MISC.pdf

State Of Karnatka Vs Y Moideen Kunhi (Dead) By LRS And ORS (Dated: May 04, 2009)

Delay in Filing appeals – On perusal of the explanation offered it is clear that the officials who were dealing with the matter have either deliberately or without understanding the implications dealt with the matter in a very casual and lethargic manner. It is a matter of concern that in very serious matters action is not taken as required under law and the appeals/petitions are filed after long lapse of time. It is a common grievance that it is so done to protect unscrupulous litigants at the cost of public interest or public exchequer. This stand is more noticeable where vast tracts of lands or large sums of revenue are involved. Even though the courts are liberal in dealing with the belated presentation of appeals/applications, yet there is a limit upto which such liberal attitude can be extended. Many matters concerning the State Government and the Central Government are delayed either by the nature of bureaucratic process or by deliberate manipulation of the same by taking advantage of loopholes in the conduct of litigation. Several instances have come to the notice of this Court where as noted above appeals have been filed where the revenue involved runs to several crores of rupees. It is true that occasionally delay occurs which is inexplicable in normal circumstances.

Ultimately, the Court has to protect the public justice. Delay condoned – but exemplary cost of Rs ten lakhs ordered – Ultimately, the Court has to protect the public justice. The same cannot be rendered ineffective by skillful management of delay in the process of making challenge to the order which prima facie does not appear to be legally sustainable.

To be recovered from the officers – Criminal action also to be initiated: It is imperative that the State shall immediately initiate action as available in law against every person responsible for the alleged fraud and delay in pursuing the remedies, fix responsibility and recover the amount paid as costs from them. Needless to say orders shall be passed in this regard by the competent authority after grant of opportunity to the concerned person(s). If any, action under criminal law(s) is to be taken, same shall be taken.:SUPREME COURT;

2009-TIOL-70-SC-CT.pdf + pepsi story.pdf

Pepsico India Holdings P Ltd Vs State Of Kerala (Dated: May 11, 2009)

Amendment of Exemption Notification - It is now a well settled principle of law that the doctrine of promissory estoppel applies to the State: in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter of faith.

Ordinarily, this Court would not have gone into the findings of the fact arrived at by the statutory authorities but was only required to consider the correctness of judgment of the learned Single Judge as also the Division Bench of the High Court. However, even in a case of this nature, the authorities stuck to their own stand which is not expected from a statutory authority.:SUPREME COURT;

MIXED BUZZ

mbuzz0491.pdf

L&T signs MoU with GE Hitachi for ABWR & BWR Nuclear Power Plants in India;

mbuzz0490.pdf

Impact of slowdown in last Q of last fiscal: More people lost jobs in export units than non-export units;

CIT, Shimla Vs M/s Greenworld Corporation, Parwanoo (Dated: May 6, 2009)

An order of assessment passed by an Income-tax Officer, therefore, should not be interfered with only because another view is possible. An assessment order passed at the instance of the higher authority, is illegal: The power to exercise of suo motu of revision in terms of Section 263(1) is in the nature of supervisory jurisdiction and same can be exercised only if the circumstances specified therein, viz., (1) the order is erroneous; (2) by virtue of the order being erroneous prejudice has been caused to the interest of the revenue, exist. the Assessing Officer had passed an order at the instance of the higher authority which is illegal.:SUPREME COURT;

2009-TIOL-251-HC-AHM-IT.pdf

Dy Commissioner of I.T.(Asst) Vs Arvind Mills Ltd (Dated: April 13, 2009)

Income tax - Sec 115J - assessee files return and revises the same to lower the profit before tax - AO objects to it on the ground that the profit revised is lower than the profit approved by the AGM of the company and also the one published - Tribunal allows the assessee's appeal - held, no infirmity in the Tribunal's order as the only requirement of Sec 115J under the I-T Act is that the accounts should be in accordance with Parts II and III of Schedule VI of the Companies Act - AO is not vested with jurisdiction to disturb such audited accounts - Revenue's appeal dismissed:GUJARAT HIGH COURT;

2009-TIOL-307-ITAT-VIZAG.pdf

ACIT, Vijayawada Vs M/s Khandari Hotels (P) Ltd (Dated: February 15, 2009)

Income Tax - Expenditure Tax Act, 1987 - Assessee engaged in the business of  hotel uses machines, which condition temperature but fails to pay tax under Expenditure Tax Act - AO considers that equipment  used in restaurants to generate cooling  as air conditioners and bringing to tax the gross turnovers under ET Act – CIT(A) takes the view that the ET Act is not applicable - Held, by applying common parlance test, the equipment which is meant to regulate the temperature without the aid of water is known as air conditioner' though it does not generate heat. Hence, one has to assume that the Legislature has used the popular conception of the term air conditioner' without going by the higher/hyper technical meaning of the term 'air conditioner'. The assessee used air conditioner which is exigible to tax under ET Act. Tribunal, being a creature of Statute, has no power to go behind the intent of the Legislature except merely deciding the appeals on a plain language of the provisions incorporated therein. AO directed to re-compute the chargeable expenditure and levy tax as per law. Revenue Appeal partly allowed.:VISAKHAPATNAM ITAT;

2009-TIOL-306-ITAT-MUM.pdf

Wyeth Limited Vs ACIT, Mumbai (Dated: February 11, 2009)

Income tax - Assessee is a manufacturer - claims deduction for goods misappropriated at one of its depots by its own staff in connivance with transporters and stockists - AO disallows - held, since the loss is incurred during the course of business, due to misappropriation of goods on account of irregularities committed by the staff of the assessee in connivance with the both the stockists as well as the transporters and both civil and criminal cases have been filed by the assessee, the deduction is allowable:MUMBAI ITAT;

SERVICE TAX SECTION

2009-TIOL-780-CESTAT-DEL.pdf

M/s Bharti Hexacom Ltd Vs CC & CCE, Jaipur-I (Dated: April 2, 2009)

ST - telecom service - Revenue for inclusion of value of SIM cards in taxable value - also denies input credit on tax paid on leased lines - held, since sales tax is paid on SIM cards, its value cannot be included in the activation charges and part of demand is also time-barred. However, the case is remanded to examine the evidence afresh for allowing input credit :DELHI CESTAT;

2009-TIOL-779-CESTAT-DEL.pdf

CCE, Kanpur Vs M/s Ashok Enterprises (Dated: April 23, 2009)

ST - Frachisee service - Revenue argues the assessee satisfies all the four conditions which are to be necessarily satisifed to be treated as frachisee service - assessee argues that it is covered under IPR Service introduced from Sept, 2004 - held, since lower authorities have not given specific findings about fulfilment of condition 2 of the franchisee service, the issue is remanded:DELHI CESTAT;

CENTRAL EXCISE SECTION

NOTIFICATION

exnt09_12.pdf

CBEC amends Commissioners' Committee for Excise review cases;

exnt09_11.pdf

CBEC amends CCs' Committee for Excise review cases;

CASE LAWS

2009-TIOL-71-SC-CX.pdf

M/s Chaudharana Steels (P) Ltd Vs CCE, Allahabad (Dated: May 8, 2009)

Central Excise – Appeals – High Court has no power to condone delay:SUPREME COURT;

2009-TIOL-252-HC-P&H-CX.pdf

CCE, Jalandhar Vs Vardhman India Products (Dated: August 21, 2008)

Central Excise – Evidence on record proving fraudulent availment of MODVAT credit not disputed factually – Non invoking/quoting relevant provisions for extended period does not vitiate the proceedings – Tribunal order set aside and penalties imposed by original authority upheld: PUNJAB AND HARYANA HIGH COURT;

2009-TIOL-778-CESTAT-AHM.pdf

M/s Acme Diet Care Pvt Ltd Vs CCE, Ahmedabad (Dated: March 27, 2009)

Central Excise – Excess duty paid available as refund even if debit notes were issued to offset higher billing in view of High Court decision in UOI vs. M/s. A K Spintex Ltd. & ANR 2009-TIOL-12-HC-RAJ-CX:AHMEDABAD CESTAT;

2009-TIOL-777-CESTAT-MAD.pdf

M/s Tagros Chemicals India Ltd Vs CCE, Pondicherry (Dated: February 18, 2009)

Central Excise – CENVAT Credit – demand of interest on excess credit reversed without utilizing the same is set aside – the appellant is entitled for refund of such interest paid.:CHENNAI CESTAT;

2009-TIOL-776-CESTAT-MAD.pdf

Tamil Nadu Newsprint & Papers Ltd Vs CCE, Trichy (Dated: February 12, 2009)

Central Excise – Stay / Dispensation of pre-deposit - CENVAT Credit – credit on inputs used in the manufacture of capital goods cannot be denied on the ground that the capital goods are immovable property – pre-deposit waived.:CHENNAI CESTAT;

CUSTOMS SECTION

NOTIFICATION

cnt09_053.pdf

CBEC amends Commissioners' Committee for Custom review cases;

cnt09_052.pdf

CBEC amends CCs' Committee for Custom review cases;

instruction09_004.pdf

Frauds resulting from failure to maintain password security - reg;

CASE LAWS

2009-TIOL-68-SC-NDPS.pdf + ndps story.pdf

Raju Premji Vs CC, Ner Shillong Unit (Dated: May 6, 2009)

Statement made while in Police Custody inadmissible evidence: Any statement made by them while in custody of a police officer would be inadmissible in evidence in terms of Section 26 of the Indian Evidence Act

Confessions made NDPS Act, Customs Act may be treated as confessions under Evidence Act but with the caution that the court should satisfy itself that such statements had been made voluntarily : The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purpose of Section 27 of the Evidence Act, but with the caution that the court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. :SUPREME COURT;