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CBEC notifies more restrictions on doubtful assessees - maybe required to maintain records of non-cenvatted inputs + substitutes Annexure II for record keeping for removal of goods at concessional rate of duty; Amend Income Tax Act to help the robbed and not robber! (See 'Budget Run-Up') CBEC issues transfer order of 31 AC/DCs Fake drugs manufactured in China being marketed in Africa as 'Made in India'; FM sounds serious about GST in 2010; urges State CMs and FMs to sort out pending issues; Trade body urges Govt to extend DEPB Scheme; Competition law experts meeting in New Delhi today; CBEC grants Sec 11C benefits to agri grade zinc sulphate used as micronutrient and allows refund of duty paid; CBI conducts nationwide anti-corruption raids; books one ITO ; Govt to get Finance Bill 2009 passed by Parliament before July 31 ; 'CWC setting up CFS at Cochin; to build up many more in Kerala; |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY CENVAT Credit and Traffic Islands; PM keen on a Bill to convert low-performers into tangible achievers in Indian Civil Services! Amend Income Tax Act to help the robbed and not robber! MIXED BUZZ Fake drugs manufactured in China being marketed in Africa as 'Made in India' ; FM sounds serious about GST in 2010; urges State CMs and FMs to sort out pending issues; Competition law experts meeting in New Delhi today; Trade body urges Govt to extend DEPB Scheme; CBI conducts nationwide anti-corruption raids; books one ITO; |
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2009-TIOL-355-ITAT-BANG.pdf + tds story.pdf ITO, Bangalore Vs M/s Intel Tech India Pvt Ltd (Dated: April 09, 2009) The deductor cannot make an assessment of income in the hands of the deductee : in section 195(2), it is mentioned that where a person responsible for paying any such sum chargeable under this Act considers that the whole of such sum would not be income chargeable in the case of recipient, he may make application to the Assessing Officer to determine the appropriate proportion of such sum so chargeable. The words 'such sum' mentioned in section 195(2) of the I T Act refers to the sum mentioned in section 195(1) of the IT Act. It is clear that a deduction of tax at source is to be considered at the time of each credit or payment. As per section 195(1) of the I T Act, the person responsible for payment to non-resident is required to deduct income tax at the time of credit of such income to the account of the payee or at the time of payment. In the instant case, the third buy back is resulting into an income to the non-resident. The Legislature has used the word 'such' before income in section 195(1) of the IT Act Hence, section 195(1) is applicable in respect of each credit of income or each payment of income. The words 'such income' will refer to the income in respect of the payment or of the credit. Hence from section 195(1), it is clear that a deduction of tax at source is to be considered at the time of each credit or payment. The default will end on the date when the deductee has filed the return. Hence, in the instant case, the deductor was required to deduct the tax at source and therefore, the deductor was an assessee in default since a deductee has filed the return and has disclosed the transaction in the return of income and that shows no tax was payable on such transaction. Therefore, the default will end on the date when the deductee has filed the return. Hence, the deductor will be liable to interest u/s 201( 1A ) up to 1st November, 2004. However, there will be no deduction u/s 201 since the deductee has filed the return and has disclosed the transaction and no tax is payable as per the return on such transaction by the deductee . Hence, order of the CIT( A) in cancelling the demand u/s 201 is upheld. However, it is held that the deductor will be liable to pay interest on the amount of tax to be deducted from the date of deduction till November 1, 2004.:BANGALORE ITAT; BPL Power Projects (AP) Pvt Ltd VsACIT, Hyderabad (Dated: December 23, 2008) Income tax - If the CIT(A) did not want to admit the additional evidence, he should not have commenced upon the same without hearing the assessee - In fact, by doing so, he not only closed his own mind on the issue but shut the assessee as well. This is purely in violation of the principles of natural justice. Therefore, in the interest of justice, we direct the CIT(A) to admit the additional evidence and reconsider the issue after giving due opportunity of being heard to the assessee. :HYDERABAD ITAT; Radheshyam Agarwal Vs DCIT, Mumbai (Dated: January 21, 2009) Income Tax - Assessee challenged the block assessment made by AO u/s 264 by filing a writ petition and CIT directed AO to make fresh assessment after allowing reasonable opportunity of being heard to the assessee—Fresh assessment order was challenged for being time barred u/s 153(2A) as amended by Finance Act 2001 - Held, amendment was made to restrict the period of limitation to one year from the earlier period of two years - Assessment order made beyond the expiry of one year is barred by limitation - Assessee's appeal allowed.:MUMBAI ITAT; ATOS Origin (India) Pvt Ltd, Mumbai Vs ACIT, Mumbai (Dated: January 6, 2009) Income tax - Penalty u/s 271(1)(c) - Assessee claims deductions under Ss 10A and 10B - revises return u/s 139(5) to claim deduction u/s 80HHE - AO ignores the revised return and makes additions - penalty also initiated - assessee alleges that first, the AO has not given effect to its order that the revised return be considered and secondly, penalty is wrongly calculated by allowing deduction u/s 80HHE - held, assessee is right that the AO has made a serious error in calculating the penalty by taking into account the additions made and then deduction u/s 80HHE being allowed on the overall calculation of export turnover and total turnover - CIT(A) order set aside and matter remanded to the AO for fresh calculation and consideraiton of the revised return - Assessee's appeal allowed :MUMBAI ITAT; |
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CBEC issues transfer order of 31 AC/DCs;
2009-TIOL-894-CESTAT-MUM.pdf + kopran story.pdf M/s Kopran Ltd Vs CCE, Raigad (Dated: April 20, 2009) Service Tax - Transfer of know-how of the formulations and for bulk drugs – whether chargeable to Service Tax under the category ‘Scientific or Technical Consultancy introduction of a new service by carving out from an earlier service will not mean that the new service was not taxable under any other category earlier. Thus, even though the service regarding transfer of intellectual property was introduced w.e.f. 10.9.2004, it does not mean that the service would not be covered under any other category earlier even if it was covered under the definition of a new service. Limitation is five years: it is well settled that once suppression or mis-declaration is established, the time limit available to the Department for raising the demand is 5 years from the relevant date and the issue of an earlier SCN will not wipe out or obliterate the suppression/mis-declaration. pre- deposit of Rs 2 Crores ordered: Appellants have not made a strong prima-facie case for total waiver of pre-deposit of the amounts demanded from them. In view the facts and circumstances of the case including the plea of financial hardship raised pre-deposit ordered of a sum of Rs. two crores :MUMBAI CESTAT; M/s Wild Expedition Tours & Travels Vs CCE, Bhopal (Dated: April 8, 2009) ST - Rent-a-Cab-Operator - Assessee provides vehicles to PSUs and some of the Govt offices - claims it is not covered under the notified service - Matter remanded for passing a speaking order :DELHI CESTAT;
CENTRAL EXCISE SECTION NOTIFICATION CBEC notifies more restrictions on doubtful assessees - maybe required to maintain records of non-cenvatted inputs; CBEC amends also amends rule 6 and substitutes Annexure II for removal of goods at concessional rate of duty; CBEC grants Sec 11C benefits to agri grade zinc sulphate used as micronutrient and allows refund of duty paid; CASE LAWS M/s Pooja Fab Vs CCE, Thane-I (Dated: March 25, 2009) Metal containers produced on job work basis out of raw materials supplied by Asian Paints – No sale involved - Profit of 26% shown in balance sheet included other profits also – since job work charges include the profit element and it is not the revenue's case that something more than that is being charged, addition of 26.04% for assessment purpose is superfluous and redundant – Appeal allowed. :MUMBAI CESTAT; Taiyo Lucid Pvt Ltd Vs CCE, Aurangabad (Dated: March 13, 2009) Erroneous Refund – A manufacturer is eligible to claim refund of Cenvat Credit taken on input used in the manufacture of such product cleared for export under bond/undertaking and no refund can be claimed in r/o Cenvat Credit taken on input used in the manufacture of final product but not cleared for export – No prima facie case – Pre-deposit of amounts involved ordered.:MUMBAI CESTAT; M/s JBF Industries Ltd Vs CCE, Vapi (Dated: February 25, 2009) Central Excise – NCCD not leviable on goods cleared to 100% EOU – Assessee under bonafide belief that NCCD not leviable on POY when finished goods viz., texturized yarn exempt from payment of NCCD – When duty paid before issue of SCN penalty not leviable, hence set aside:AHMEDABAD CESTAT;
CUSTOMS SECTION NOTIFICATION Anti-dumping duty on Potassium Carbonate extended by five more years; Anti-dumping duty on import of acetone : Notification amended to substitute Taiwan Prosperity Chemical Corporation ; CASE LAWS 2009-TIOL-892-CESTAT-MUM.pdf + stanley story.pfd Stanley P Fernandes Vs CC, Mumbai (Dated: March 20, 2009) Customs – Penalty for abetting smuggling – Marker could not mark the crates as they were not given to him for marking – penalty on marker not justified: the appellant could not mark the goods as the same were not presented before him; Commissioner had not specified the ‘principal offender' and hence the finding recorded against the appellant is unsustainable on this count too. No nexus established between the mens rea of the Assistant Shed Superintendent with the omission of the appellant to mark the wooden crates :MUMBAI CESTAT; |
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