Is CJI office covered under RTI Act? Delhi HC refers case to Larger Bench

Anti-dumping duty on import of Melamine extended upto April 1, 2010;

Anti-dumping duty Notification no 109/2004 rescinded;

Mobile communication subscriptions leapfrog to 4.6 billion: UN body;

Continuing work on memorials in UP: SC gives contempt threat; calls Chief Secretary in court;

CBDT denies sending emails for refunds and seeking credit card details of taxpayers; cautions against mails coming from ihxbkw@accounts.net or cvhfus@accounts.net;

Kolkata DRI seizes red sander woods worth Rs 50 lakh;

TIOL COMMENTARY

ddt 07 oct.pdf

Benevolent Board allows duty-paid packing materials into export warehouse, but blatantly denies export benefits;

special column.pdf

CBEC setting dangerous trends - Assessees, beware!

MIXED BUZZ

mbuzz0914.pdf

Mobile communication subscriptions leapfrogs to 4.6 billion: UN body;

2009-TIOL-533-HC-DEL-IT.pdf

CIT Vs NIIT Ltd (Dated: September 22, 2009)

Income tax - Sec 194I - Assessee is into the business of providing computer education and training - enters into contract with franchisees in metro cities - franchisees provide land, building, other fittings and fixtures and marketing of computer coursewares - as per the terms of agreement, the entire fee is deposited in the account of the assessee which in turn makes payments to the franchisees under two heads - marketing claims and infrastructure claims - Revenue treats the payment for infrastructure claims as rent, liable to TDS u/s 194I - Tribunal disagrees with the AO - held, the dominant intention of the parties of the agreement is to do business and not to let out the building and furniture and the sum shared between them is not fixed nor any minimum amount is guaranteed by the assessee and above all, it was a composite contract for providing training. Since the broad objective was to share the profit and not to hire premises, the assessee is not liable to TDS u/s 194I - Revenue's appeal dismissed:DELHI HIGH COURT;

2009-TIOL-532-HC-DEL-IT.pdf

CIT Vs M/s Creative Dyeing & Printing Pvt Ltd (Dated: September 22, 2009)

Income tax - Sec 2(22)(e) - Assessee is in the business of dyeing and printing of cloth - acts as an ancilliary unit for a sister concern, involved in exports - both the companies have common shareholders - a decision is taken to modernise and expand the plant and machinery of the assessee company - sistern concern gives advances to the assessee for this purpose - AO treats the same as deemed dividend - Tribunal disagrees with the AO - held, the 'advance' given for commercial purpose of expansion of business cannot be treated as loan or dividend income in the hands of the shareholders of the assessee company as the shareholders also contributes the pool of funds required for expansion - no flaw in the Tribunal's decision - Revenue's appeal dismissed :DELHI HIGH COURT;

2009-TIOL-531-HC-DEL-IT.pdf

Indo Rama Synthetics (I) Ltd Vs CIT (Dated: September 22, 2009)

Income tax - MAT provisions - Sec 115JB - Assessee is into manufacture of yarn and polyester - computes book profit after reducing the net profit by the sum withdrawn from the revaluation reserve created on revaluation of the fixed assets - AO disallows - held, there is no infirmity in the Tribunal's order. After the insertion of the proviso to clause (i) of explanation to section 115JB of the Act, the assessee has been deprived of the benefit by clearly mandating that in case the amount of such reserve has not been added back by the assessee in AY 2000-01, i.e. when the assessee company created the revaluation reserve while computing the book profit for that year, then the amount is statutorily to be included while computing the book profits under section 115JB of the Act. Assessee's appeal dismissed:DELHI HIGH COURT;

2009-TIOL-605-ITAT-MUM.pdf

M/s PCI Drugs And Laboratories P Ltd Vs ITO, Mumbai (Dated: September 2, 2009)

Income tax - Sec 23(1)(a) - Assessee owns six premises - self-occupies four for business purposes and lets out two for rental income - AO denies the theory of self-occuption and makes addition for notional income from the four self-occupied premises - AO does so on the ground that the assessee's business was drastically reduced and its factory was sealed and the assessee fails to provide electricity bills if any business was carried out - CIT(A) holds that merely because the business was reduced it cannot be said that the business premises were not used for business. The fact that the assessee wanted to sell them, the premises were kept unoccupied and no notional income can be added - held, the fact that the Revenue in earlier years allowed depreciation on these premises by treating them business assets, they cannot now be treated differently and no notional income from rent can be assessed under Sec 23(1)(a) - Assessee's appeal allowed: MUMBAI ITAT ;

2009-TIOL-604-ITAT-MUM.pdf + wns story.pdf

WNS Global Services Pvt Ltd Vs ITO, Mumbai (Dated: June 17, 2009)

Income tax - Sec 10A(9) - Assessee is a subsidiary of UK-based company - provides IT-enabled BPO services - During the relevant FY, WNS (Mauritius) Ltd, a wholly owned subsidiary of WN Holdings, acquires the entire share capital of the assessee from the UK-based company - assessee owns four units - two each in Mumbai and Pune - files return - revises return and declares Nil income after setting off losses of certain units against profits and gains of other units - also claims Sec 10A benefits - In revised return, assessee provides information by way of a note about the change in ownership of the assessee company - AO makes inquiry about various deductions claimed but fails to apply provisions of Sec 10A(9) - CIT invokes powers u/s 263 and denies benefits under Sec 10A - held, since the AO fails to apply his mind to the application of Sec 10A(9), this is not a case of taking another view - it is a clear case of the AO's order being errorneous as well as prejudicial to the interest of Revenue as Sec 10A(9) was very much on the statute register during the relevant AY and the same was deleted in the later years and the assessee cannot claim Sec 10A benefits prior to the amendment - however, the assessee had made an alternate claim before the CIT that if Sec 10A benefits are denied, it may be allowed benefits under Section 80HHE/80JJAA and the same may be examined a fresh on remand to the AO - Assessee's appeal partly allowed: MUMBAI ITAT ;

SERVICE TAX SECTION

2009-TIOL-1583-CESTAT-MUM.pdf + graphite story.pdf

Graphite India Ltd Vs CCE & CC, Nashik (Dated: August 27, 2009)

Lowering, laying, jointing and testing GRP pipes for Gujarat Industrial Development Corporation (GIDC) is taxable service as GIDC is a corporation primarily undertaking development of infrastructure for industries – CESTAT orders pre-deposit of Rs.50 lakhs.

Tribunal's observations –

“…, we have found a valid point … in relation to certain pleadings contained in the memo of appeal itself. The appellants have stated that GIDC is a nodal agency of the Government of Gujarat playing a major role in providing infrastructure etc. It is stated that as per section 37 of the Gujarat Industrial Development Act, 1962, GIDC is empowered to lay, maintain, repair pipes/pipelines, conduits for the purpose of constructing any sewers or drains necessary for carrying any waste liquids of an industrial process through the said area. The memo of appeal further notes thus:

“It is crystal clear that the object of GIDC is primarily to provide infrastructure like approach roads, industrial establishment over and above providing other amenities like supply of water, electricity, gases and other amenities at affordable cost.”

6. Prima facie , it appears, the pipes in question were lowered, laid and joined, tested etc. at the site of the GIDC primarily for industrial purposes thereby attracting section 65(25b) of the Finance Act, 1994. As regards similar service rendered to the Municipal Corporations, the adjudicating authority rightly concluded that the service was not taxable. The reasons are obvious. The Municipal Corporations (customers of the appellants) are neither industrial nor commercial in character. They are in the nature of governmental agencies serving the public in multifarious ways . Insofar as similar service rendered to private agencies like Birla Copper is concerned, the appellant chose to pay service tax. With regard to the industrial character and the purpose for which the pipelines were laid, jointed, tested etc. prima facie , there is no distinction between Birla Copper etc. and GIDC . We, therefore, hold that, prima facie , the appellants were liable to pay service tax under the head ‘Commercial or Industrial Construction Service' in respect of this service rendered to GIDC during the period of dispute.”

On limitation –

“…the fact that huge amounts were collected from GIDC as consideration for service which was rendered to them in the same manner as to private agencies was suppressed in the service tax returns. There appears to be suppression of material facts and, therefore, at this stage, we are unable to find fault with invocation of extended period of limitation.”:MUMBAI CESTAT;

2009-TIOL-1582-CESTAT-MAD.pdf

M/s East Coast Construction & Industries Ltd Vs CST, Trichy (Dated: June 4, 2009)

Service Tax – Stay/Dispensation of pre-deposit – erection, commissioning and installation service – laying of pipe line does not amount to rendering of erection, commissioning and installation service – pre-deposit waived.:CHENNAI CESTAT;

2009-TIOL-1581-CESTAT-MAD.pdf

M/s HI Tech Arai Ltd Vs CCE, Madurai (Dated: June 10, 2009)

Service Tax - the remuneration paid by the appellant-company being director's remuneration cannot be subjected to service tax – the demand is also not sustainable for the reason that the period of dispute is prior to 1.1.2005 during which no service tax is payable by the recipient of the service provided by a person from outside India who does not have any office in India.:CHENNAI CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-1580-CESTAT-MAD.pdf

CCE, Chennai Vs M/s Futura Polymers (Dated: June 16, 2009)

Central Excise – 100% EOUs – method of computation of aggregate duties of customs for clearances in DTA under Notification 2/95 CE – the appellants correctly computed the duty by reducing each of the duties of customs at 50% - contention of the revenue that the duty should be computed as 50% of the total customs duties is not tenable in view of the Larger Bench decision.:CHENNAI CESTAT;

2009-TIOL-1579-CESTAT-MAD.pdf

M/s BHEL Vs CCE, Trichy (Dated: July 1, 2009)

Central Excise – CENVAT Credit – non maintenance of separate accounts for exempted / dutiable goods – 10% demand is not sustainable as the assessee reversed the inadmissible credit - Matter remanded for verification of reversal – Rule 6(3)(b) of the CENVAT credit Rules 2004.:CHENNAI CESTAT;

2009-TIOL-1578-CESTAT-MAD.pdf

CCE, Chennai Vs Automotive Coaches And Components Ltd (Dated: July 21, 2009)

Central Excise – Cenvat Credit – ownership of capital goods is not relevant for deciding the eligibility of credit.:CHENNAI CESTAT;

CUSTOMS SECTION

NOTIFICATION

ctariff09_114.pdf

Anti-dumping duty on import of Melamine extended upto April 1, 2010;

ctariff09_113.pdf

Anti-dumping duty Notification no 109/2004 rescinded;

CASE LAWS

2009-TIOL-530-HC-AP-SEZ .pdf + stpi story.pdf

Ahmed Ehtesham Kawkab Vs Government Of India Ministry Of Commerce & Industry (Department Of Commerce), New Delhi (Dated: September 18, 2009)

Scope of Quo warranto : It is a writ which lies against the person who, according to the relator , is not entitled to hold an office of a public nature and is only a usurper of the office. It is the person, against whom the writ of quo warranto is directed, who is required to show by what authority he is entitled to hold the office. The challenge can be made on various grounds including on grounds that the possessor of the office does not fulfill the required qualifications or suffers from any disqualification, which debars him from holding such office. Quo warranto proceedings afford a judicial enquiry in which the person, holding an independent substantive public office or franchise, is called upon to show by what right he holds the said office or franchise. If the inquiry leads to the finding that the holder of the office has no valid title to it, issue of a writ of quo waranto ousts him from that office. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions. These proceedings tend to protect the public from usurpers of public office and, if the jurisdiction of the Court to issue a writ of quo warranto is properly invoked, the usurper can be ousted.

Who is a Government Officer? Director of STPI is neither an officer of the Central Government nor is he an officer not below the rank of a Deputy Secretary to the Government of India. Several tests have been laid down to determine when a person can be said to be an officer of the Central Government. There is a relationship of master and servant between the State and a person said to be holding a post under it. The existence of this relationship is indicated by the State's right to select and appoint the holder of the post, its right to suspend and dismiss him, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service and the nature of duties to be performed by the employee, the right to control the manner and method of his doing the work, the right to issue directions, the right to determine the source from which wages or salary are paid and the payment by it of his wages or remuneration. The Office or post must not only be under the control of the State, it must also be open to the State to abolish the post and regulate the conditions of service of the officer. In view of the Constitutional Provisions, such as Articles 309 and 311, the position of a Government servant is different from a private employment. Further, Section 11 (1) of the Special Economic Zones Act, 2005 stipulates that, in order to be eligible to be appointed to the post of Development Commissioner of a SEZ , the officer of the Central Government should not be below the rank of a Deputy Secretary. Merely because the pay scales of the Director of STPI is higher than that of a Deputy Secretary to the Government of India does not make him an officer of the Central Government higher in the rank than a Deputy Secretary. The word "rank", in its ordinary sense, means grade or status. An employee of a Society cannot be equated either with the grade or the status of an officer of the Central Government. If pay scales were to be the sole criterion for deciding equivalence in rank, nothing prevented Parliament from using the words "drawing a pay scale not lower than that of a Deputy Secretary to the Government of India" instead of the words "not lower in rank than that of a Deputy Secretary to the Government of India."

LOCUS STANDI : public interest litigation should be conducted with great care and circumspection, that the real intention of the petitioner ought be kept in mind while entertaining such a petition, that a writ of quo warranto could not be filed by a person who did not have any direct connection or grievance or interest in the matter and that, where the averments relating to the petitioner's locus standi were vague, and he did not show his credentials, a writ petition was not maintainable.

As the High Court was of the opinion that the fifth respondent does not satisfy the conditions prescribed in Section 11(1) of the SEZ Act to be appointed as Development Commissioner of SEZ , and that he does not have any right to continue to hold the said office, the Court saw no reason to non-suit the petitioner on the ground of locus standi as neither the strict rules of standing, nor the motives of the petitioner, would justify the fifth respondent continuing in office as his appointment falls foul of Section 11(1) of the SEZ Act, 2005.: ANDHRA PRADESH HIGH COURT;