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BMW Expose case: SC holds noted criminal lawyer R K Anand guilty of contempt of court; Govt setting up Global Indian Network of Knowledge for Indian Diaspora; Govt sets up Rs 100 Cr corpus for BPL Cancer Patients: Health Minister; Sahar Airport Customs seizes diamonds worth Rs 75 lakh from pax coming from Bangkok; Govt intends to enact new Emigration law; Revenue collection and stock market indices: A statistical study; Mr Narendra Singh + Mr Prakash Chandra join as new CBDT Members; Mr Vittal Das to join as new CBEC Member today; UN helps six nations to relish a cleaner way to chill out; More than 74000 newspapers registered with RNI; Delhi holds second slot with 10066 newspapers; |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY Exporters at Receiving End from Smart Officers in Field – CBEC yet to Catch Up with Suitable Clarifications; Revenue collection and stock market indices: A statistical study; CASE LAW + ANALYSIS 2009-TIOL-372-HC-DEL-FEMA.pdf + fera story.pdf Prabhat Kumar Srivastava Vs Director Of Enforcement (Dated: July 17, 2009) FERA - culpable state of mind of the petitioner should be proved beyond reasonable doubt and not on the basis of assumptions – Foreign Currency seized ordered to be returned – penalty quashed: The findings of the respondent are based on its own presumptions and assumptions and cannot be termed to be based on legal principles and therefore the Court would be justified in interferring with such perverse findings. The findings have been arrived at without any basis which has been successfully rebutted by the petitioner and in the circumstances it has to be held that adjudication order is not sustainable.:DELHI HIGH COURT; MIXED BUZZ Govt setting up Global Indian Network of Knowledge for Indian Diaspora; Govt intends to enact new Emigration law; BMW Expose case: SC holds noted criminal lawyer R K Anand guilty of contempt of court; UN helps six nations to relish a cleaner way to chill out; |
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2009-TIOL-371-HC-DEL-IT.pdf + penalty story.pdf Ms Madhushree Gupta Vs UoI (Dated: July 24, 2009) Income tax - Sec 271 - penalty - Insertion of sub-section (1B) in Sec 271 with retrospective effect from 1.4.1989 - legislative intent to introduce deeming fiction for recording of 'satisfaction' from assessment order for initiation of penalty - Vires of amendment challenged against the spirit of Article 14 of Constitution - held, ++ Section 271(1B) of the Act is not violative of Article 14 of the Constitution. ++ The position of law both pre and post amendment is similar, in as much as, the Assessing Officer will have to arrive at a prima facie satisfaction during the course of proceedings with regard to the assessee having concealed particulars of income or furnished inaccurate particulars, before he initiates penalty proceedings. ++ Prima facie 'satisfaction' of the Assessing Officer that the case may deserve the imposition of penalty should be discernible from the order passed during the course of the proceedings. Obviously, the Assessing Officer would arrive at a decision, i.e., a final conclusion only after hearing the assessee. ++ At the stage of initiation of penalty proceeding the order passed by the Assessing Officer need not reflect satisfaction vis-a-vis each and every item of addition or disallowance if overall sense gathered from the order is that a further prognosis is called for. ++ However, this would not debar an assessee from furnishing evidence to rebut the prima facie ‘ satisfaction of the Assessing Officer; since penalty proceeding are not a continuation of assessment proceedings. ++ Due compliance would be required to be made in respect of the provisions of Section 274 and 275 of the Act. ++ the proceedings for initiation of penalty proceeding cannot be set aside only on the ground that the assessment order states that penalty proceedings are initiated separately, if otherwise, it conforms to the parameters set out earlier : DELHI HIGH COURT; CIT Vs H B Stock Holdings Ltd (Dated: July 24, 2009) Income tax - Assessee suffers loss in share transactions - AO disallows it on the ground that the transactions were entered into with Group companies and were not genuine - also disallows interest payments on the ground that the assessee had made interest-free advances to sister company - Tribunal allows assessee's appeal - held, disallowance made merely on auditor's adverse report is not sustainable as auditor was forced to give adverse report because Revenue had conducted a search and seizure of the assessee's premises and had taken away all the books and records - AO could have examined the records before making disallowance - even disallowance of interest-free advances to sister company is not sustainable as the loans were given before taking loans for business and such advances are permissible as settled by the Apex Court in S A Builders' case - Revenue's appeal dismissed: DELHI HIGH COURT; CIT Vs Trans Bharat Aviation (P) Ltd (Dated: July 16, 2009) Income tax - TDS u/s 194I - Assessee is an air taxi operator - makes payments to Airport Authority of India for office space, parking etc - fails to deduct tax at source - AO holds the assessee to be in default and passes orders under Sections 201(1) and 201(1A) - Tribunal upholds the order u/s 201(1A) - held, since the deductee is a Government undertaking it can be presumed that the taxes must have been paid but interest u/s 201(1A) to be paid by the assessee upto the date of filing of return and not till the date on which tax was paid by the AAI - Revenue's appeal dismissed : DELHI HIGH COURT; CIT, Delhi-IV Vs M/s Eicher Ltd (Dated: July 15, 2009) Income tax - Assessee follows mercantile system of accounting - gives inter corporate deposits to a company - AO makes addition for accrued interest - Assessee enters into one time settlement agreement as loanee fails to pay principal sum as well as interest - Assessee pays tax on interest realised out of the settlement account and writes off the loans - Tribunal allows assessee's appeal on the ground that the tax was paid on settled interest and the recovery of loan was doubtful - held, since the actual income never accrued to the assessee, no addition can be made - Tribunal's order upheld - Revenue's appeal dismissed : DELHI HIGH COURT; CIT, Kanpur Vs Iqbal Hussain (Dated: July 10, 2009) Income tax - Sec 142A - AO initiates reassessment u/s 147 on the basis of the report of District Valuation Officer - additions made for investment in property - Tribunal sets aside Revenue's order on the ground that District Valuation Officer's report cannot be the basis for reassessment - Revenue argues in view of provision of Section 142A of the Act which was inserted by Finance (No.2) Act, 2004 with effect from 14-11-1972 the assessment proceedings could not have been set aside by the Tribunal - held, no substance in Revenue's contention as in view of Proviso to Section 142(1) of the Act, reference to the Departmental Valuation Officer for the purposes of assessment can not be taken, if the assessment has become final between the parties before Section 142A was inserted i.e. 30-9-2004 - Revenue's appeal dismissed : ALLAHABAD HIGH COURT; |
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SERVICE TAX SECTION 2009-TIOL-1145-CESTAT-BANG.pdf M/s Hindustan Coca Cola Beverages Pvt Ltd Vs CCE, Hyderabad (Dated: May 1, 2009) Service Tax – CENVAT Credit – credit on Goods Transport Agency service - the appellants sold the goods to their buyer on F.O.R. basis – the appellant's case is covered by the Board's circular. Even though the Circular is of year 2007 and period involved is prior to that, the Circular appears to be implemented with retrospective effect – the appellants are eligible for credit. :BANGALORE CESTAT; 2009-TIOL-1144-CESTAT-BANG.pdf M/s Adecco Flexione Workforce Solutions Ltd Vs CCE, Bangalore (Dated: April 29, 2009) Service Tax – Delay in filing of appeals – Affidavit filed by CEO explains the reasons for delay in filing appeals – No assessee would gain by not filing an appeal or filing an appeal belatedly – Delays condoned:BANGALORE CESTAT;
CENTRAL EXCISE SECTION 2009-TIOL-1149-CESTAT-DEL.pdf + hpcl story.pdf Hindustan Petroleum Corpn Ltd Vs CCE, Lucknow (Dated: May 19, 2009) Mere absence of clearance from COD or delay in obtaining the clearance from COD cannot be a ground for dismissal of the appeal or any application - CESTAT recalls order and restores appeal. Tribunal's observations - + It is settled law that the remedy of appeal is a creation of statute and no such remedy can be availed unless the statute under which the proceedings are initiated specifically provides for such remedy. + At the same time, once such a remedy is provided under a statute, the right in that regard arises with the initiation of the original proceedings themselves. + Considering the same, rejection of the appeal on any ground contrary to the statutory provisions would result in great injustice to the party and would virtually negate the right of appeal which is otherwise assured to the aggrieved party under the statute.
+ The requirement of clearance from COD for such litigation, however, cannot be construed to empower the Court or Tribunal to dismiss the proceedings for want of clearance from COD. + The Apex Court in ONGC's case (supra) ( 2002-TIOL-196-SC-CX ), has very clearly stated that - "...in the absence of the clearance, the proceedings would not be proceeded with." + The expression 'proceeded with' cannot be construed as empowering the Court or Tribunal "to terminate" the proceedings. It would certainly empower the Court or Tribunal to refrain from taking further steps in such proceedings in the absence of clearance from COD. + The power of the Committee being restricted to the efforts for reconciliation and in the absence thereof to grant clearance for litigation, it is obvious that the decisions of the Apex Court in ONGCs' case do not amount to taking away the right of the litigant to file the appeal which is statutorily assured to them under the relevant provisions of the statutes. + Once it is shown that the original order of dismissal of the appeal itself was absolutely bad in law and this aspect having brought to the notice of the Tribunal, it will be the duty of the Tribunal to recall such order and avoid injustice to the aggrieved party. Application for Restoration of Appeal allowed and Appeal restored.:DELHI CESTAT; CCE, Chandigarh Vs M/s Dabur India Ltd (Dated: April 30, 2009) Central Excise – Abatement of additional sales tax and octroi on equalized basis allowable but expenses to be segregated exclusively in respect of excisable goods cleared by assessee for respective years – Impugned order of Appellate Commissioner and Original authority set aside and matter remanded for redetermination of actual abatement:DELHI CESTAT; M/s Kanchi Karpooram Ltd Vs CCE, Chennai (Dated: May 15, 2009) Central Excise – semi finished goods destroyed in fire – the appellant is not required to reverse the credit on inputs contained in semi finished goods destroyed.:CHENNAI CESTAT; 2009-TIOL-1146-CESTAT-BANG.pdf M/s Apple Lab Ltd Vs CCE, Hyderabad (Dated: January 30, 2009) Central Excise – Amount of 8% paid in terms of Rule 57CC and recovered from customers not required to be deposited with Government – Provisions of Section 11D not applicable – LB decision in Unison Metals 2006-TIOL-1337-CESTAT-DEL-LB followed: BANGALORE CESTAT;
CUSTOMS SECTION Supreme Exports Vs CC, Chennai (Dated: May 15, 2009) Customs – refund of cess paid on prawns – limitation – the ground that the limitation is not applicable as the levy was held to be unconstitutional is not tenable as the High Court has held prawns / shrimp were not exigible to levy of cess under Agriculture Produce Cess Act, 1940, but not held the levy as unconstitutional – refunds rightly rejected by the lower authorities as time barred.:CHENNAI CESTAT; M/s Kusum Steel Ltd Vs CCE & CC, Bhubaneswar (Dated: March 12, 2009) Customs – Import of steel melting scrap and claim of short landing/transit loss – No evidence produced to substantiate claim of short landing – Claim of 1% transit loss unreasonable as the said goods are not volatile – Loss of 0.25% allowed – Original authority directed to re-work duty liability based on 0.25% transit loss : KOLKATA CESTAT; |
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