Taxindiaonline.com - Daily Mail Update
 
2009-TIOL-NEWS-173
Monday, July 20, 2009
 
News Flash

DRI seizes four containers of beef at Nhava Sheva; Delhi-based firms booked;

Modernisation of mega ports to be completed within 36 months; Minister;

Tale of Vanishing Cos: Coordination & Monitoring Committee is on job;

Govt to table bill for setting up National Green Tribunal soon;

Swine Flu: Tally of patients testing positive climbs to 297; 181 discharged; takes toll of 429 lives globally;

     
 

Dear Member,

Sending the following files:

 
     
Common Basket

TIOL COMMENTARY

ddt 20 july.pdf

CESTAT Revamp – Only Regular matters on three Days a week;

tiol top.pdf

Brand grows on vision, and vision earns equity for brand;

guest column.pdf

Global recession: Women may be more vulnerable;

MIXED BUZZ

mbuzz0671.pdf

DRI seizes four containers of beef at Nhava Sheva; Delhi-based firms booked;

mbuzz0670.pdf

Modernisation of mega ports to be completed within 36 months; Minister;

mbuzz0669.pdf

Tale of Vanishing Cos: Coordination & Monitoring Committee is on job;

mbuzz0668.pdf

Govt to table bill for setting up National Green Tribunal soon;

 
Direct Tax Basket

2009-TIOL-85-SC-IT.pdf + sc it story.pdf

Udaipur Sahkari Upbhokta Thok Bhandar Ltd Vs CIT (Dated: July 16, 2009)

Income tax - Sec 80P(2)(e) - Assessee is a cooperative society - owns godowns - stores both controlled and un-controlled goods in godowns - enters into agreement with Food Corporation of India for storage and also signs another agreement for sale of such goods to Fair Price Shop as per Govt orders - earns commission income - claims deduction - AO disallows - Tribunal allows but HC rules in favour of Revenue - held, since the assessee treats the stock as trading stocks and earns margin by selling the goods stored to the FPS it is not an income exempted under Sec 80P(2)(e) - for availing exemption the onus to prove its case lies on the assessee - Assessee's appeal dismissed:SUPREME COURT;

2009-TIOL-352-HC-ALL-IT.pdf

City Montessori School Vs UoI (Dated: May 29, 2009)

Income Tax—Petitioner, a registered society, claimed exemption form income tax u/s 10(22) - AO and CIT(A) disallowed exemption on the interest income from fixed deposits received by petitioner - ITAT was granted exemption u/s 12A - Sec 10(22) was repealed and Sec 10(23C) was incorporated which limits the exemption only upto income of Rs. 1 crore - Held, assessee, to avail exemption u/s 10(23C), will have to submit the audited accounts and balance sheets for the last three years along showing the appropriation of income towards objects of the university or other educational institution—Held, petitioner assessee is a charitable institution which is engaged wholly for the purposes of education, especially when no material has been brought to prove that there was any element of personal profit - Petition succeeds .:ALLAHABAD HIGH COURT;

2009-TIOL-351-HC-P&H-IT.pdf

CIT, Faridabad Vs M/s Cebon India Limited (Dated: July 7, 2009)

Income tax - Sec 292BB - Service of notice - CIT(A) and Tribunal find notice not served on the assessee within the period of one year - held, if no notice served within the statutory period, such defect is not curable u/s 292BB - Revenue's appeal dismissed:PUNJAB AND HARYANA HIGH COURT;

2009-TIOL-350-HC-MAD-IT.pdf

M/s Royal Stitches (P) Ltd Vs CCIT, Chennai (Dated: May 19, 2009)

Income tax - Sec 234B - Assessee claims deductions under Ss 80HHC and 80IA and also treats interest income from bank deposits as business income - Reassessment - AO treats interest as ''income from other sources'' - also levies interest u/s 234B - Assessee pays tax but contests interest demand - files application to Revenue authorities empowered by Board for waiver of interest - Revenue rejects the application - held, as per settled law, the Revenue was right in denying waiver of interest for earlier years but for AY 1996-97, the case is remanded to the Revenue for taking a decision in view of the delegation of power by the Board:MADRAS HIGH COURT;

2009-TIOL-349-HC-P&H-IT.pdf

CIT, Ludhiana Vs M/s Sidhartha Enterprises (Dated: July 14, 2009)

Income tax - Penalty u/s 271(1)(c) - Assessee claims set off capital loss against business income - AO disallows and initiates penalty - CIT(A) and Tribunal accept the contention that such a deduction was claimed due to negligence of the counsel - penalty set aside - held, in Dharmendra Textile case ( 2008-TIOL-192-SC-CX-LB ) what has been laid down is that qualitative difference between criminal liability under section 276C and penalty under section 271(1) (c) had to be kept in mind and approach adopted to the trial of a criminal case need not be adopted while considering the levy of penalty. The concept of penalty has not undergone change by virtue of the said judgment. Penalty is imposed only when there is some element of deliberate default and not a mere mistake. Revenue's appeal dismissed:PUNJAB AND HARYANA HIGH COURT;

 
Indirect Tax Basket

SERVICE TAX SECTION

2009-TIOL-1089-CESTAT-BANG.pdf

M/s Super Spinning Mills Limited ‘A' And ‘B' Units Vs CC, CCE & ST, Tirupati (Dated: March 16, 2009)

Service Tax – Services received from abroad liable to tax only from 18.04.2006 – Prima facie case in favour of assessees in view of High Court decision in Indian National Shipowners Association case 2008-TIOL-633-HC-MUM-ST:BANGALORE CESTAT;

2009-TIOL-1088-CESTAT-DEL.pdf

CCE, Ludhiana Vs M/s Asian Cranes & Engg Services (Dated: May 21, 2009)

ST - Maintenance and Repair Service - Assessee provides service to a corporate client on its premises - demand raised with penalty - CIT(A) upholds demand on maintenance and repair service and also penalty u/s 78 but not under Ss 76 and 77 - held, demand with penalty is set aside on the ground of limitation - Assessee's appeal allowed:DELHI CESTAT;

2009-TIOL-1087-CESTAT-DEL.pdf

CCE, Indore Vs M/s American Color Lab (Dated: June 25, 2009)

ST - Photography service - Revenue for inclusion of photography materials in the value of taxable service - held, issue is no longer res integra as it is settled law that sale and service cannot be put in the same box and sale element in a works contrack like photographic service is to be excluded from the gross value of taxable service - Revenue's appeal dismissed:DELHI CESTAT;

 

CENTRAL EXCISE SECTION

2009-TIOL-355-HC-MUM-CX.pdf + hc cx story.pdf

CCE, Thane-II Vs M/s D C Polyester Pvt Ltd (Dated: June 30, 2009)

Central Excise – Exports – Refund of AED ( T&TA ) on inputs – entitled; it must be held that even though the clarification about refund of additional duty of excise ( T&TA ) was issued on 22.3.2007, it was to be applicable to all the pending cases and therefore, its application cannot be restricted only to future.

A beneficial circular has to be applied retrospectively while oppressive circular has to be applied prospectively; In the present case, both these circulars of 2003 and 2007 are beneficial circulars as far as the assessees are concerned and the Government intended to give benefit of refund to them in respect of the unutilised credit given for additional excise duty. Both these circulars clearly show that the Board had seriously considered the provisions of the rules, representations and demands of the trade and industry and had come to conclusion that benefit of refund can be given under the rules.:BOMBAY HIGH COURT;

2009-TIOL-354-HC-DEL-CX.pdf

Gujarat State Fertilizers Pvt Ltd Vs UoI (Dated: July 1, 2009)

Central Excise – Classification – Oleum is classifiable under TI 14 G( old tariff) – Refund ordered :DELHI HIGH COURT;

2009-TIOL-1090-CESTAT-DEL.pdf

Dabur India Ltd Vs CCE, Ghaziabad (Dated: August 4, 2008)

Central Excise – Manufacture & dutiability of clove oil and sandalwood oil received in bulk and repacked into small quantity – No evidence on record to show assessees undertook any process on oils received – In the absence of chapter note for goods classifiable under Heading 33.01 of Central Excise Tariff which provides that packing and repacking amount to manufacture, repacking from bulk to retail does not amount to manufacture – Duty demand set aside

Classification of Saunf ka ark – Product manufactured exclusively in accordance with formula described in authoritative book mentioned in First Schedule to Drugs & Cosmetics Act under drug licence issued by competent authority – Evidence to show that Ark sold as medicine – Classifiable under sub-heading 3001.31 – Revenue's proposal to classify under 3301.00 rejected:DELHI CESTAT;

 

CUSTOMS SECTION

2009-TIOL-353-HC-MUM-CUS.pdf + cus hc story.pdf

Poona Health Services Private Limited Vs CC (Airport), Mumbai (Dated: June 25, 2009)

Customs – Redemption Fine – Duty is payable even if the confiscated goods are not redeemed – the issue really stands concluded considering the Coordinate Bench Judgments of this Court in Commissioner of Customs Vs. Wockhardt Hospital and Heart Institute , reported in 2006-TIOL-115-HC-MUM- CUS and the judgment in Bombay Hospital Trust Versus Commissioner of Customs (ACC) Mumbai 2006-TIOL-170-HC-MUM- CUS . Apart from that, the legislature has made it clear that even if the goods are released on payment of fine, such person is also liable to pay duty and charges thereon. The fine payable to get possession of the goods under section 125 is distinct and different from the duty of goods which are to be imported or exported. It is the nature of recompense to the state for goods which are vested in it and on sale would have realized the value of the goods and from that to recover the duty which is unpaid as also fine.

If benefit is given to another assessee illegally, the Court cannot perpetuate illegality ; Even assuming that the tribunal has acted arbitrarily in the case of Harkishandas Hospital that by itself is no ground for the appellant to contend that they should also be exempted from the payment of duty. The exemption and or remission is only as provided under the Act. If not provided under the Act, neither A.O. nor the tribunal or courts can exercise the jurisdiction of waiving the payment of duty. If what the appellant says is correct, at the highest it is for the respondents to prefer an appeal against that order in case of Harkishandas Hospital . At any rate if the order is illegal, this court cannot perpetuate the illegality. We may add a note of caution that we are not aware of the facts in the case of Harkishandas .” :BOMBAY HIGH COURT;

     
 

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