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Customs Chief Missing – Police Officers interrogated (See 'DDT') Guwahati DRI seizes 1000 kg ganja; About 10 tonnes ganja seized in last few weeks by Guwahati + Kolkata DRI; Gove denies report on transfer of P&H High Court Judge Justice Mehtab Singh Gill; Four Members not to find slot in new Planning Commission - Dr Anwarul Hoda, Dr Kirit Parikh, Dr B L Mungekar and Prof V L Chopra; PTA between India-MERCOSUR - Concessional import tariff - India notifies rules of origin; Corporate tax mop-up registers 5.6% growth in April; Mumbai SEZ case: SC says no to stay on land acquisition process; CBEC Board discusses promotion issue of 12 promotees to Commissioner-level; Clarification on Lease of space on shift basis in IT/ITES SEZ & Disaster Management/Recovery Centre + ingle Window Mechanism – Instructions thereon; Bank Unions decide to go on one-day strike on June 12; To mark World Environment Day UNEP names 'Climate Heroes'; Jain Irrigation bags Rs 778 mn World Bank Order; Luxembourg to share bank information for tax purposes with Denmark; |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY GST will be vigorously pursued - President; MIXED BUZZ Corporate tax mop-up registers 5.6% growth in April; Jain Irrigation bags Rs 778 mn World Bank Order; Luxembourg to share bank information for tax purposes with Denmark; To mark World Environment Day UNEP names 'Climate Heroes'; |
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2009-TIOL-336-ITAT-DEL.pdf + interest story.pdf DCIT, Dehradun Vs M/s Mcdermott International Inc (Dated: April 30, 2009 ) Interest Income (from foreign company) cannot be treated as Fee for Technical Services, taxable at 20%, not 30%: The Tribunal referred to several decided cases and noted that none of the decisions cited by the DR supports the claim of the Revenue in the present case that the interest income as per arbitration award is to be treated as FTS . This receipt is on account of interest as per arbitration award in connection with debt owned by the Indian Company i.e. M/s BSCL in foreign currency. So the ITAT held that such interest income is to be taxed as per the provisions of section 115A (1) and since CIT (A) has decided this issue on similar line, ITAT found no reason to interfere in the order of the CIT (A). This ground of the Revenue is rejected. In re-assessment proceedings u/s 147, the income-tax Officer's jurisdiction is confined to only such income which has escaped tax – assessee cannot be permitted to re-agitate questions which had been decided in the original assessment : in proceedings under section 147 of the Act, the Income tax Officer may bring to charge items of income which had escaped assessment other than or in addition to that item or items which have led to the issuance of the notice under section 148 and where reassessment is made under section 147 in respect of income which has escaped tax, the income-tax Officer's jurisdiction is confined to only such income which has escaped tax or has been under assessed and does not extend to revising, reopening or reconsidering the whole assessment or permitting the assessee to reagitate questions which had been decided in the original assessment proceedings. It is only the underassessment which is set aside and not the entire assessment when reassessment proceedings are initiated. The Income-tax Officer cannot make an order of reassessment inconsistent with the original order of assessment in respect of matters which was not the subject matter of proceedings under section 147. An assessee cannot resist validly initiated reassessment proceedings under this section merely by showing that other income which had been assessed originally was at too high a figure except in cases under section 152(2). The words "such income" in section 147 clearly refers to the income which is chargeable to tax but has "escaped assessment" and the Income-tax Officer's jurisdiction under the section is confined only to such income which has escaped assessment. It does not extend to reconsidering generally the concluded earlier assessment. Claims which has been disallowed in the original assessment proceeding cannot be permitted to be reagitated on the assessment being reopened for bringing to tax certain income which had escaped assessment because the controversy on reassessment is confined to matters which are relevant only in respect of the income which had not been brought to tax during the course of the original assessment. A matter not agitated in the concluded original assessment proceedings also cannot be permitted to be agitated in the reassessment proceedings unless relatable to the item sought to be taxed as "escaped income".:DELHI ITAT; ACIT, Bangalore Vs M/s Motorola India Pvt Ltd (Dated: April 17, 2009 ) Income tax - Sec 10A and Sec 10B - Revenue is in appeal against CIT(A) order directing the AO to exclude the expenses incurred towards telecommunication charges for providing software services outside India from total turnover - held, issue stands settled by the Special Bench in the case of M/s Sak Soft Ltd whereby telecommunication expenses excluded from total turnover is to be excluded from export turnover as well - Revenue's appeal dismissed:BANGALORE ITAT; Raymond Ltd Vs JCIT, Mumbai (Dated: February 13, 2009) Income Tax - Assessee filed a return declaring loss - AO disallowed certain expenditures and assessed the income under the general provisions since the income computed under the provisions of the Income Tax Act in contrast to the book profits under section 115JA was more - CIT(A) allowed partial relief - Held, interest on borrowed capital is permissible as a deduction in respect of the borrowing utilised for purchase of machinery and that the same was allowable even if the machinery was not used in the year of borrowing - Held, assessee has started a separate Aviation Division and the helicopter has been put to commercial use and the money borrowed for the purchase of the helicopter was therefore for the purposes of business and therefore allowable as a deduction under section 36(1)(iii)—Held, expenditure incurred by the assessee on the issue of bonus shares is permissible as a revenue deduction—Assessee's appeal partly allowed.:MUMBAI ITAT; Ms Indu J Maheshwari Vs DCIT, Mumbai (Dated: February 27, 2009) Income Tax - Assessee, deriving income from house property, capital gains, dividend and interest income, filed IT return - AO restricted the short term capital loss and treated loss in derivative transaction as speculative loss - CIT(A) held only those losses which assessee incurred in respect of the transaction, which were sold within 3 months of record date need disallowance as they are hit by the provisions of section 94(7) - Held, if a person holds the units for a period of more than three months from record date then, the provisions of section 94(7) will not apply and the loss if any suffered will be allowed - Held, dealings in the derivative is a separate kind of transaction which does not involve any purchase and sale of shares and therefore loss on account of derivative trading cannot be treated as speculative loss to the assessee - Revenue's appeal dismissed.:MUMBAI ITAT; Rana Rohit Singh Vs CIT (Dated: May 4, 2009) Income tax - Sec 264 - AO issues notice u/s 148 - returns filed and assessment orders passed - assessee alleges that the Sec 148 notice was issued by ACIT who had not jurisdiction and during the assessment proceedings, the case was transferred to the ITO - also pleads that transfer of the case to ITO does not validate the proceedings - also argues that the revision application filed to the CIT wrongly rejected - held, the Commissioner could not have refused to entertain the revision u/s 264 on the ground that it is not a substitute of appeal, though there may be many more reasons, on which exercise of the discretionary jurisdiction can be refused but such reasons have to be germane to the issue and valid - Assessee's appeal allowed:ALLAHABAD HIGH COURT; |
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Single Window Mechanism – Instructions thereon; Clarification on Lease of space on shift basis in IT/ITES SEZ & Disaster Management/Recovery Centre;
SERVICE TAX SECTION M/s N V Marketing Pvt Ltd Vs CST, Delhi (Dated: April 30, 2009) ST - BAS - assessee provides lottery service to the State Govt - Revenue raises demand - assessee argues it acts only as an auctioneer or a trader - not covered under service tax - held, lottery service was brought under tax net only from 16.5.2008 and it does not appear to be retrospective - waiver of pre-deposit granted:DELHI CESTAT; Indian Acrylics Ltd Vs CCE, Ludhiana (Dated: April 24, 2009) ST - Commissioner(A) declines to grant hearing for lack of pre-deposit - held, since the Commissioner has not heard the issue on merit and the issue remanded for fresh hearing:DELHI CESTAT;
2009-TIOL-859-CESTAT-MUM.pdf + system story.pdf M/s Rochem Separation Systems (India) Pvt Ltd Vs CCE, Thane-II (Dated: March 25, 2009) If all the machineries that are required to set up a plant can get a benefit, there is no justification to deny the benefit to the plant itself - Desalination Plants being Water Treatment Plants are entitled for exemption from Central Excise duty in terms of notification 6/2006-CE - Tribunal. Tribunal's observations – CBEC Circular 659/50/2002-CX. dated 06.09.2002 makes it very clear that the concession under Notification No. 47/2002-CE dated 6.9.2002 will be available regardless of whether the full plant is imported or only some machinery/equipment is imported (including when it is imported in CKD/SKD). The Commissioner has held that the CBEC circular provides for exemption to the plant on the Custom side and not on the Central Excise side and that para 3 of the said Circular clarifies only about the exemption from excise duty to machinery, including instruments etc required for setting up of water treatment plant intended to treat water to make it fit for consumption of humans or animals. We are of the view that this approach of the Commissioner is discriminatory. It can never be the intention of the Government to tax the goods manufactured in India and exempt identical goods imported from outside India. Once a benefit has been extended to the goods imported from outside India, the same will have to be extended to the goods manufactured indigenously as well. The language of the Heading 98.01 is similar to the language employed in the Notification No. 6/2002-CE dated 1.3.2002 as amended and, therefore, the clarification of the Board will equally apply to the said Notification No. 6/2002-CE dated 1.3.2002 as amended. If all the machineries that are required to set up a plant can get a benefit, there is no justification to deny the benefit to the plant itself . It is only logical that the exemption, which is available to all items of machinery including instruments, apparatus and appliances, auxiliary equipment and their components/parts required for setting up of water treatment plants, should be available to the plant also. Any contrary interpretation, which defeats the objective of the Notification, needs to be avoided. The appellants have fulfilled the condition No. 47A of the Notification No. 6/2002-CE dated 01.03.2002, as amended in as much as they have submitted the certificate from the Collector and District Magistrate, Jaisalmer, in relation to Supply Order No 1017/SO/OT-0832/2005-06/08/OW dated 26.10.2005 and a similar certificate has been issued by the Collector and District Magistrate, Jaisalmer, vide letter No. 1502 dated 22.10.2005 in respect of Supply Order No. 3321/OT-23/05-06/16/OW dated 30.09.2005. Since the demand itself has been held as unsustainable on merits, the question of imposition of penalty on the appellants and demanding interest from them does not arise. The same are set aside.:MUMBAI CESTAT; M/s Peass Industrial Engineers Ltd Vs CCE, Vapi (Dated: January 9, 2009) Common inputs used in dutiable as well as exempted goods - payment of amount of 8% under Rule 6 of Cenvat Credit Rules, 2002 is not required when the amount equivalent to credit attributable to input used in exempted goods is paid before removal of exempted goods - Larger Bench decision of the Tribunal in the case of Nicholas Piramal (2008-TIOL-1877-CESTAT-MUM-LB) relied upon.:AHMEDABAD CESTAT; M/s Adani Energy Ltd Vs CCE, Ahmedabad (Dated: April 15, 2009) Central Excise – Centralized registration permitted for CNG manufacturers in terms of Board Circular dated October 16, 2008 – Matter remanded to Commissioner for de novo adjudication of CENVAT claims after Chief Commissioner decides on centralized registration:AHMEDABAD CESTAT;
CUSTOMS SECTION NOTIFICATION PTA between India-MERCOSUR - Concessional import tariff - India notifies rules of origin; CASE LAWS 2009-TIOL-299-HC-MAD-CUS .pdf + valuation story.pdf CC, Chennai Vs M/s Ashu Exports (Dated: April 1, 2009) Customs - Export under DEPB scheme by mis-declaration of description and value – Appeal against Tribunal order setting aside confiscation and penalty not maintainable as High Court does not have jurisdiction over valuation matters – Revenue at liberty to approach Supreme Court:MADRAS HIGH COURT; M/s K D Export Vs CC, New Delhi (Dated: March 27, 2009) Customs – When documentary proof discloses undervaluation by importer and evidently admitted by the party burden of proof lies with importer to negate undervaluation – Prima facie no case made out to consider reduction/waiver of pre-deposit of duty – Pre-deposit of penalty reduced by 70%:DELHI CESTAT; |
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