Education Cess on DTA sale by EOU - bright future at cost of poor past (See 'Common Basket')

DRI officer Tarun Dutta murder case: CBI files charge-sheet against 3 accused;

CBDT notifies qualifications required for e-Return Intermediary;

Q2 Advance tax mop-up registers 15% growth in corporate tax and 1.7% in personal income tax;

CBEC, UPSC hold DPC for promotion to Chief Commissioner-level in Mumbai today;

President transfers Justice Tarun Agarwala from Allahabad HC to Uttarakhand + Justice Jiwan Chandra Singh Rawat from Uttarakhand to Jharkhand HC;

Interpol takes e-passport initiative; to set global standard in travel document security;

G20 nations can rescue 11 mn jobs this year: ILO;

Communication Minister says Govt to table Bill to regulate private courier agencies;

TIOL COMMENTARY

ddt 22 Sept.pdf

Fiscal Autonomy for CBDT – The DTC;

guest column.pdf

Education Cess on DTA sale by EOU - bright future at cost of poor past;

MIXED BUZZ

mbuzz0877.pdf

DRI officer Tarun Dutta murder case: CBI files charge-sheet against 3 accused;

mbuzz0876.pdf

G20 nations can rescue 11 mn jobs this year: ILO;

mbuzz0875.pdf

Interpol takes e-passport initiative; to set global standard in travel document security;

NOTIFICATION

it09not070.pdf

CBDT notifies qualifications required for e-Return Intermediary;

CASE LAWS

2009-TIOL-504-HC-DEL-IT.pdf

CIT, Delhi IV Vs Ichhibaan Automobiles P Ltd (Dated: September 14, 2009)

Income tax - Sec 36(1)(iii) - Assessee gives three types of advances for acquiring Opel dealership, purchase of equipment and purchase of allied fiber - AO disallows interest paid on borrowed sum advanced interest-free - CIT(A) allows it as business expenditure - Tribunal agrees with the assessee for two advances but not the third advance for purchase of allied fiber - held, since the Tribunal remanded the issue for one of the advances, there is valid ground that the entire issue be remanded to the CIT(A) for fresh examination:DELHI HIGH COURT;

2009-TIOL-579-ITAT-DEL.pdf + german story.pdf

DSD Industrieanlagen GmbH Vs DDIT (Dated: July 24, 2009)

Income tax - Sec 44BBB - Assessee is a German company - provides engineering and technical services to various power projects - As per DTAA, its profits attributable to PE along are taxable in India - offers 10% of taxable profits of the project office and claims deduction for losses incurred by the branch office - AO observes that the assessee has offered profits to tax on book profit basis rather than the deemed income which is on higher side - applying principle of consistency AO holds that the assessee be taxed on net profit basis as it was done in the previous year assessment - CIT(A) agrees with the AO - held, the principle of consistency cannot be invoked in a case where the law itself mandates that if proper books are maintained and the same are audited, a foreign company is allowed to show income even less than deeming income at 10% - since the assessee has followed normal book keeping procedure as per the special provision of Sec 40BBB, it cannot be forced to follow the net profit method for declaring profit in the name of principle of consistency - Assessee's appeal allowed :DELHI ITAT;

2009-TIOL-578-ITAT-DEL.pdf

Smt Seema Gupta Vs DCIT, New Delhi (Dated: April 22, 2009)

Income Tax - Section 142A - A search and seizure action u/s 132(1) conducted in the case of Grain merchants group which included the residential premises of assessee as well. A notice u/s 153A issued to the assessee. Assessee had purchased a property - AO referred the matter to the Departmental Valuation Officer u/s 142A who determined the value in excess of assessee's claim - AO makes additions - CIT(A) reduces addition - Held, revenue could not produce any material which could require valuation of the property to be referred to valuation officer u/s 142A - on this ground alone, the addition cannot be made and the order is to be vacated. The comparable case referred to by the District Valuation Officer for the purposes of valuation has been found by the CIT (A) to be not a comparable one as it was in respect of a property located at 9 kms away from the property owned by the assessee. Rough estimate of CIT (A) has no basis and hence addition cannot be made. Assessee Appeal allowed and Revenue Appeal dismissed.:DELHI ITAT;

2009-TIOL-577-ITAT-DEL.pdf

ACIT, New Delhi Vs M/s Sage Publications India Pvt Ltd (Dated: April 30, 2009)

Income Tax - Assessee claims deduction on account of litigation settlement expenses - AO disallows it - CIT(A) allows assessee's claim – Held, the expenditure was the liability of the assessee company incurred as a prudent amount and was allowable deduction - Revenue's Appeal dismissed.:DELHI ITAT;

2009-TIOL-576-ITAT-MUM.pdf

Bombay Dyeing & Mfg Co Ltd Vs ACIT, Mumbai (Dated: April 29, 2009)

Income Tax - Assessee, engaged in the business of manufacturing and sale of textile and DMT, filed a revised return and AO issued revised intimation u/s 143(1)(a) - Held, It is not open to the revenue to issue intimation under section 143(1)(a) of the I-T Act, 1961, after notice for regular assessment is issued under section 143(2) - held, once a regular assessment proceedings having been commenced under section 143(2), there is no need for a summary proceeding under section 143(1)(a) - W.r.t. deduction u/s 80HHC which was disallowed by the AO, it was held merely on the basis of change of opinion reassessment proceedings cannot be initiated - Held, there has to be some material or information before the Assessing Officer at the time of formation of belief regarding of assessment which constitutes the reasons for reopening of assessment - Assessee's appeal allowed.:MUMBAI ITAT;

SERVICE TAX SECTION

2009-TIOL-1504-CESTAT-AHM.pdf

M/s Mahavir Rolling Mills Ltd Vs CST, Ahmedabad (Dated: June 19, 2009)

Service Tax - Goods Transport Agency - Abatement - Conditions of Notification - Stay /Dispensation of pre-deposit - The Notification grants abatement for the purpose of payment of service tax, subject to fulfillment of the condition therein. Appellant claims it is not possible for them to produce any evidence to show that service provider has not availed the credit or benefit of the Notification No. 12/03. There is no relaxation given in Notification No. 32/04 and the condition attached thereof cannot be relaxed or diluted by the department or by the Tribunal. The benefit of the Notification would become available only and only when the condition are satisfied. Having admitted that such conditions have not been satisfied, no justification to grant unconditional stay. 50% of tax liability to be pre-deposited. (Para 4):AHMEDABAD CESTAT;

2009-TIOL-1503-CESTAT-AHM.pdf

M/s Cadmach Machinery Co Pvt Ltd Vs CCE, Ahmedabad (Dated: July 21, 2009)

Service Tax - CENVAT - Input services - Outdoor catering services - Tour operator services - Repair and maintenance of vehicles  - In the light of the law declared by the Larger Benches in the case of  CCE Vs. GTC Industries - 2008-TIOL-1634-CESTAT-MUM-LB and  ABB Ltd. Vs. Commissioner of Service Tax - 2009-TIOL-830-CESTAT-BANG-LB credit on outdoor catering services received in the canteen, services obtained as tour operators and repair and maintenance of the vehicles allowed. (Para 2):AHMEDABAD CESTAT;

2009-TIOL-1502-CESTAT-BANG.pdf

MSPL Ltd Vs CCE, Belgaum (Dated: December 23, 2009)

Service Tax - Goods Transport Agency - Cargo Handling Services - Mining Activity - Stay / Dispensation of pre-deposit - Appellants in the course of mining activity hire trucks for transporting the ores from the pitheads for processing. Demand made for receiving the services of goods transport agency.  OBSERVED - It is seen that the transportation of coal/ores within the mining area is not liable to service tax during the relevant period. Prima facie, the appellants have a strong case on merits. Stay granted. (Para 6) :BANGALORE CESTAT;

2009-TIOL-1501-CESTAT-DEL.pdf

M/s Paul Merchants Ltd Vs CCE, Chandigarh (Dated: July 9, 2009)

ST - BAS - Assessee is an agent to Western Union which carries on the service of delivering foreign remittances to recipients in India - Assessee claims exemption from service tax under Export of Services Rule - Revenue raises demand - held, since the case prima facie cannot be ruled out as beyond the bar of limitation and the violation of natural justice also alleged, unconditional stay granted:DELHI CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-506-HC-DEL-CX.pdf + prosecution story.pdf

Eskay Electronics (I) Pvt Ltd Vs P K Khera (Dated: September 11, 2009)

Central Excise – Prosecution launched in 1989 – proceedings still at pre-charge stage – accused is 86 years old - The delay has clearly deprived the accused of their fundamental right to speedy trial under Article 21 of the Constitution – Prosecution quashed: it is obligatory on the part of the complainant to move a proper application, in respect of witnesses, it is desirous of summoning. The department cannot shirk its responsibility by placing burden on the trial court. - In the present case, the accused have been appearing in the case since the date when summons were first made returnable on 04.05.1989. The delay in the instant case is purely on account of callous attitude on the part of the prosecution. The delay in the instant case has clearly deprived the accused of their fundamental right to speedy trial under Article 21 of the Constitution of India. The accused no. 2, is 86 years of age. Accused no. 3 is 48 years of age. The matter is at the pre-charge stage. In view of the long delay, it is quite obvious that the prosecution will find it quite hard, if not impossible, to secure conviction, given the long gap of time since the prosecution first commenced.:DELHI HIGH COURT;

2009-TIOL-505-HC-MAD-CX.pdf

M/s Target Marketing Vs Central Excise And Gold Control (Appellate) Tribunal, Chennai (Dated: July 23, 2009)

Central Excise – Waiver of pre-deposit – demand of duty on bought out batteries supplied with UPS - the appellant- assessee -Company has shown undue hardship towards its financial condition and that the demand as raised, has prima-facie no legs to stand - it will be undesirable to ask the appellant- assessee to pay the full or substantive part of the demand – matter remitted to the CESTAT to decide without insisting on pre-deposit:MADRAS HIGH COURT;

2009-TIOL-1499-CESTAT-MAD.pdf

M/s Kiran Pondy Chems Ltd Vs CCE, Trichy (Dated: June 9, 2009)

Central Excise – Clandestine clearance – Evidence – Finding of clandestine production and clearance is made solely on the basis of a formula applied to the operation of the appellant's production and feeding of raw material in a couple of days. No statement of any worker or any buyer had been obtained to support the charges. There is no evidence of sale to any buyer of the quantity found to have been clandestinely cleared. There is no evidence of receipt of any sale proceeds. In the circumstances, the impugned demand towards clandestine clearance is held to be not sustainable. (Para 6)

Raw material – Confiscation - Provisions of Rule 25 of the CER are applicable to the final products and can not be extended to the raw material. The confiscation of raw material from the appellants is held to be not sustainable in law. (Para 6):DELHI CESTAT;

CUSTOMS SECTION

CC, Mumbai Vs Sharp Menthol India Ltd (Dated: August 12, 2009)

Customs - Rebate on exempted goods exported on which duty had been paid from the Cenvat account - Cenvat Credit is under dispute as final products became exempt – Credit admissible – Export under Rebate allowed – Revenue Appeal dismissed .: MUMBAI CESTAT;