|
 |
 |
 |
 |
 |
MoC prescribes 'Time Schedule' for disposal of various SEZ related applications; India is One - For Export and Import of services; Sahar Airport Cusotms seizes about one kg cocaine worth Rs 30 lakh from Nigerian lady coming from Lagos; Panna Diamond Mine reopens after 4 years; Service Tax - New Provisions in the Finance Act to be effective from 1st September; Story of Two Frogs: Plight of our 'low arousal people'; CBEC grants Sec 11C benefits to Dough for preparation of baker's wares; All gram panchayats to have panchayat ghar in next three years: Minister; Govt to provide loans at 4% rate to sugarcane growers; Tele-density goes up to 41 but wireline subscriber-base declines; |
 |
|
 |
 |
 |
|
Dear Member, Sending the following files: |
||
|
 |
 |
|
|
TIOL COMMENTARY Advance Ruling for Some Indians too; International public law and decisions of revenue authorities in domestic jurisdictions; MIXED BUZZ Govt to provide loans at 4% rate to sugarcane growers; All gram panchayats to have panchayat ghar in next three years: Minister; Tele-density goes up to 41 but wireline subscriber-base declines; |
|
|
|
|
|
|
| |
 |
 |
|
|
|
2009-TIOL-419-HC-UTTRANCHAL-IT.pdf DIT International Taxation, Delhi Vs M/S Western Geco Internation Ltd (Dated: August 7, 2009) Income tax - interest u/s 234B - Assessees are the employees of Western Geo International Ltd - returns of employees filed and exemption u/s 10(10CC) claimed - AO issues notice u/s 148 and disallows exemption - CIT(A) partly allows the appeal - Tribunal dismisses the Revenue appeal - held, the issue is no longer res integra as it is already decided against the Revenue - Revenue's appeal dismissed: UTTARAKHAND HIGH COURT; CIT, Kolkata Vs M/s. Ramkrishnapur Co-Operative Bank Ltd (Dated: July 15, 2009) Income tax - Sec 68 - Assessee is a cooperative society - has certain sums in its suspense account - shows the same as liability - Revenue treats the same as unexplained credit - held, since there are several entries in the daily business of banking which are not properly tallied due to various mistakes, the sum lying in the suspense account cannot be treated as unexplained credit - No substantial question of law involved - Revenue's appeal dismissed: CALCUTTA HIGH COURT; P V Chandran Vs ACIT, Coimbatore (Dated: August 10, 2009) Income tax - Sec 56 - Assessee is one of the promoters of a cotton mills - differences with other promotor - agreement to sell shares of other promotor at a guaranteed price - in case of loss, the assessee commits to pay for the shortfall - makes gains out of the deal - treats it as capital in nature - AO treats the same as income, taxable in the assessee's hands - Tribunal agrees with the AO - held, term 'income' is a word of the widest amplitude as it includes any sum which is not excluded from the ambit of income. The Act does not provide that the sum received by the assessee pursuant to an agreement to sell the shares does not constitute income. Even casual and non recurring receipt beyond the specified limit are expressly regarded as income. The mere fact that the assessee made some efforts and incurred some cost to sell the shares at a higher price and also agreed to make up for the shorfall in the sale price guaranteed to the other promotor, it was a calculated move by the assessee and cannot be treated as a windfall gain - such receipt is income and is very much taxable - Assessee's appeal dismissed: MADRAS HIGH COURT; DDIT, New Delhi Vs M/s Saraswati Holding Corpn Inc (Dated: July 10, 2009) India-Mauritius DTAA - Assessee, a company incorporated in Mauritius and holdding a tax residency certificate - makes investments in shares and securities in India - taxability of capital gains in India Assessee earns short-term and long-term capital gains - claims exemption as per Article of DTAA and also CBDT Circular No 789 - AO brings the assessee's income to tax on the ground that it was effectively managed from India - CIT(A) disagrees with the AO and allows the claim - held, in view of the Apex Court decision in Azadi Bachao Andolan case and the validity of the CBDT Circular No 789 being upheld, the assessee's capital gains tax is exempt under the DTAA and the CIT(A)'s order does not call for interference - Revenue's appeal dismissed: DELHI ITAT; 2009-TIOL-528-ITAT-MUM.pdf + abandon story.pdf Shapoorji Pallonji Power Co Ltd Vs ITO, Mumbai (Dated: April 20, 2009) Income tax - Assessee is into setting up power project - enters into agreement with SEB for power purchase - incurs pre-operative expenses and capitalises the same - project is abandoned due to subsequent developments - assessee reclassifies expenses as business expenditure - AO disallows - held, ++ business activities may be classified into two broad categories, firstly the activities which are in furtherance of setting up of a business and secondly the activities which are in furtherance of commencement of business after it has been set up. Business is set up when it is ready for take off but the activities following the setting up of business prior to its commencement constitute the essential activities for commencement of business and the expenditure incurred in carrying on such activities is allowable deduction under the head "income from business". ++ However, the expenditure incurred prior to the setting up of business is only in capital field and cannot be treated as business expenditure. The assessee had only entered into agreement with MPEB but MPEB finally backed out from the said agreement. This was only an assurance to the assessee for purchasing power from it subject to fulfillment of series of activities. It cannot be said that the assessee's business had been set up when the agreement had been entered into with MPEB. Entering into agreement with MPEB can at best be said to be an activity in furtherance of setting up of business but per se, cannot lead to the conclusion that the business had been set up. ++ it is well settled commercial principle of accounting that the nature of expenditure is determined at the first instance when it is incurred and its nature cannot be altered on account of subsequent events. Once the expenditure has been classified as capital in nature, it cannot partake the character of revenue on account of supervening circumstances.: MUMBAI ITAT; |
|
|
| |
|
|
|
| |
 |
 |
|
|
|
SEZ - INSTRUCTION MoC prescribes 'Time Schedule' for disposal of various SEZ related applications;
SERVICE TAX SECTION M/s Academicians Classes Vs CCE, Jaipur (Dated: July 6, 2009) ST - Coaching Service - Assessee refunds certain amount along with service tax collected - since refund of fees is made, assessee claims exemption as its gross collection falls less than Rs four lakh - held, if the refund of fee is verified and the authorities agree to that, the assessee is eligible for exemption - matter remanded for verification:DELHI CESTAT; M/s Price Water House Coopers Pvt Ltd Vs CST, Kolkata (Dated: June 17, 2009) ST - Assessee receives management and consulting engineering services from outside India - demand raised - It is settled law now that the tax is leviable only from 18.4.2006 - waiver from pre-deposit of tax and penalty granted with stay:KOLKATA CESTAT; M/s Wellbore Engineering CO Vs CST, Ahmedabad (Dated: June 18, 2009) ST - Jobwork service - assessee carries out finishing job on semi-finished machine parts sent to them on jobwork basis - Revenue raises demand under BAS - Assessee pleads their services are liable to tax only from 16.6.2005 when the process of manufacturing goods not liable to excise duty was notified to be taxable - pre-deposit ordered:AHMEDABAD CESTAT; M/s ABS Inc Vs CCE, Ahmedabad (Dated: July 27, 2009) ST - penalty - assessee is a commission agent - its services are covered under the BAS - fails to pay tax due to policy confusion in the Govt - later pays tax with interest - Revenue imposes penalty - held, since there was no mala fide on part of the assessee as it has paid the tax with interest, it is a fit case for invocation of Sec 80 - assessee's appeal allowed:AHMEDABAD CESTAT; M/s SMP Constructions Pvt Ltd Vs CCE, Vadodara-II (Dated: June 15, 2009) ST - Construction of industrial building and civil structure service - Revenue raises demand by disallowing abatement - assessee pleads that it has claimed abatement in only those cases where cenvat credit of excise duty paid on raw materials has not been availed - no credit is taken in case of certain contracts and abatement is available to it - held, assessee's contention is valid as it can claim abatement when no credit is availed - Unconditional stay granted:AHMEDABAD CESTAT;
CENTRAL EXCISE SECTION NOTIFOCATION CBEC grants Sec 11C benefits to Dough for preparation of baker's wares; CASE LAWS 2009-TIOL-96-SC-CX.pdf + fuel story.pdf CCE Vs M/s Gujarat Narmada Fertilizers Co. Ltd (Dated: August 17, 2009) Central Excise – CENVAT Credit – No Credit on Fuel used for exempted final products – Gujarat High Court's order in 2005-TIOL-204-HC-AHM-CX quashed: the legal effect of sub-rule (1) has to be applied to all inputs including fuel-inputs, only exception being non-fuel-inputs, for which one has to maintain separate accounts or in its absence pay 8% /10% of the total price of the exempted final products. Therefore, sub-rule (1) shall apply in respect of goods used as "fuel" and on such application, the credit will not be permissible on such quantity of fuel which is used in the manufacture of exempted goods. In our view, the above aspect has not been properly appreciated by the Gujarat High Court in the above case of M/s. Gujarat Narmada 2005-TIOL-204-HC-AHM-CX .: SUPREME COURT; 2009-TIOL-1297-CESTAT-BANG.pdf Andhra Pradesh Paper Mills Ltd, Rajahmundry Vs CCE, Visakhapatnam-II (Dated: February 18, 2009) Central Excise – Refund cannot be rejected merely because adjustments were made through Credit/Debit Notes – Once goods are supplied, the property in the goods passes to the purchaser, and seller becomes entitled to the price, and when debit note is issued by the purchaser and corresponding credit note is issued by seller, price of the goods stand reduced to the extent of debit note and credit note – When debit notes and credit notes are issued and effected, which are not disputed, it cannot be assumed, that incidence of burden of excise duty has been passed on to the purchaser:BANGALORE CESTAT; M/s Modern Engineering Plastics Pvt Ltd Vs CCE, Trichy (Dated: May 18, 2009) Central Excise – SSI exemption under Notification 1/93 CE dated 28.2.1993 - clubbing of clearances – raw materials stored in a single room without any identification – only one electricity connection – non availability of minimum machinery required – evidences establish that the units were only facades of appellants – impugned order clubbing the clearances upheld:CHENNAI CESTAT;
CUSTOMS SECTION 2009-TIOL-416-HC-AHM-CUS.pdf + essar story.pdf Essar Oil Limited Vs CBI (Dated: July 29, 2009) Rs 36 Crore Customs fraud case involving Customs officers – CBI allowed to reinvestigate the case in view of the Supreme Court judgement upholding penalty - No double jeopardy in investigation: investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation.:GUJARAT HIGH COURT; M/s Global Linkerz United Agencies Vs CC, New Delhi (Dated: March 26, 2009 ) Customs – Export of substandard quality for claiming ineligible drawback – Evidence not adduced to suggest CHA aware of poor quality of export goods – No show cause notice has been issued to CHA Act alleging any connivance with exporter – No allegation of fraud or malafide against appellant – Revocation of license not justified – Impugned order set aside:DELHI CESTAT; |
|
|
| |
|
|
|
| Regards Taxindiaonline.com Pvt. Ltd. |
