ACC appoints D R Meena, ILS, as new Secretary of Department of Legal Affairs + Kiran Dhingra gets addl charge of Shipping Secretary;

China projected to grow at 8.4% in 2009: World Bank;

Minister calls for setting up National Intelligence Coordinator;

CIT Group bankruptcy may impact small Indian garment exporters: AEPC;

Prof Swaminathan to head panel set up to review comments on Draft Coastal Management Zone ;

IOCL offers to spend Rs 50 Crore on immediate relief to units adversely affected by fire at Jaipur depots;

UN initiative to help consumers with technology purchasing decisions;

Economic Editors' Conference: FM reiterates April 1, 2010 as deadline for GST roll-out;

TIOL COMMENTARY

ddt 04 nov.pdf

1991 humiliation reversed - RBI buys 200 MTs of Gold;

spl down.pdf

Indian Customs: The SAD Refund Circus!

stgst.pdf

GST rollout - Is it going to be roller coaster ride?

CASE LAW + ANALYSIS

2009-TIOL-594-HC-MUM-MISC.pdf + recovery story.pdf

Hill Properties Ltd Vs Union Bank of India (Dated: October 16, 2009)

Recovery of debts due to banks – Appeal against orders of Debt recovery tribunal - remedy of an Appeal would not oust the jurisdiction of the Civil Court:n BOMBAY HIGH COURT;

MIXED BUZZ

mbuzz0995.pdf

Minister calls for setting up National Intelligence Coordinator;

mbuzz0994.pdf

CIT Group bankruptcy may impact small Indian garment exporters: AEPC;

mbuzz0993.pdf

UN initiative to help consumers with technology purchasing decisions;

mbuzz0992.pdf

Prof Swaminathan to head panel set up to review comments on Draft Coastal Management Zone;

2009-TIOL-116-SC-IT.pdf

CIT, New Delhi Vs M/s Maruti Udyog Ltd (Dated: October 28, 2009)

Income tax - Sec 43B - whether payment of excise duty by utilising modvat credit account can be treated as actual payment of excise duty, entitled to deduction u/s 43B - Case remanded to the High Court

Depreciation - fluctuation in foreign exchange rate - It is settled law that the claim for depreciation on account of enhanced cost of assets due to fluctuation in exchange rate is admissible deduction u/s 37: SUPREME COURT;

2009-TIOL-115-SC-IT.pdf

Assam State Text Book Production And Publication Corporation Limited Vs CIT, Gauhati-I (Dated: October 20, 2009)

Income tax - Sec 10(22) - Assessee was initially constituted as a 'Central Text Book Committee' by the State Govt - later, it was reconstituted as a Board, and finally as a Corporation under the Companies Act, 1956 - files returns - AO notices clause for dividend payment in the Memo of the company and takes the view that the assessee is not an educational institution, entitled to exemption u/s 10(22) - CIT(A) agrees with the AO - Tribunal reverses the order in favour of the assessee - High Court holds that since the assessee during the relevant years existed only for selling and distribution textbooks, it is not entitled to exemption - held, in view of the CBDT communications and the decisions of the Rajasthan HC and also the historical background of the case which the High Court missed before delivering the decision, the assessee is primarily an educational institution, entitled to exemption - Assessee's appeal allowed: SUPREME COURT;

2009-TIOL-592-HC-MUM-IT.pdf + ship story.pdf

CIT, Panaji Vs M/s Orient Goa Pvt Ltd (Dated: October 16, 2009)

Income tax - Sec 195, 40(a)(i), 44B & 172 - Assessee makes payment to a non-resident company - Mitsui & Co Ltd of Japan - towards demurrage charges - deducts no TDS on the ground that the dmurrage payments debited in the hands of the non-resident recipient are in the nature of profits from occasional shipping business u/s 44B read with Sec 172 - AO disagrees and disallows the expenditure u/s 40(a)(i) - CIT (A) refers to CBDT Circular No 723 of 1995 and deletes the disallowance - Tribunal goes with the CIT(A) - held,

++ The assessee is a company incorporated in India. It cannot be said to be a non-resident. It also cannot lay fingers on section 172, since we are not dealing with profits of non-residents. The other aspect is that such profits of non-residents should be from occasional shipping business. It is not the case that the respondent assessee has earned some profit from occasional shipping and is a non-resident.

++ Section 172 does not have application in relation to the respondent assessee. The company from Japan viz. Mitsui & Co. Ltd., Japan, recipient of demurrage amount is not before the bench. The HC is not examining the tax liability of the foreign company i.e. Mitsui & Co. Ltd., Japan. There is no dispute about interpretation of Section 172 or Section 195. Crucial point is as to how Section 172 applies to the facts of the present case wherein the respondent assessee is an Indian company, incorporated under the provisions of Indian Companies Act, 1956. The ITAT has recorded a perverse observation/finding regarding application of Section 44B and 172 of the Act 1961.

++ In the case on hand, the Commissioner of Income-tax (Appeals) and the appellate Tribunal have wrongly interpreted the Circular dated 19.9.1995 issued by the CBDT. This circular cannot be considered in the facts and circumstances of the present case, in aid to the respondent assessee. The AO has passed a legal, proper and reasoned order, holding that the provisions laid down under Section 40(a)(i) of the Act 1961 apply to the case on hand.

And the Bench finally quashes the Tribunal's order and allows the Revenue's appeal.:BOMBAY HIGH COURT;

2009-TIOL-686-ITAT-DEL.pdf

M/s Escorts Heart Institute & Research Centre Ltd Vs ACIT, New Delhi (Dated: October 9, 2009)

Income tax - Sec 37(1) - Assessee is a hospital - pays heavy premium for keyman insurance politices taken in the name of a super specialist doctor, the MD and the CMD - claims deduction - AO holds since the benefits were given to individuals, and the expenses were incurred by the assessee not for wholly and exclusively for the purpose of business and the fact that no perquisites were shown in the hands of the beneficiaries, it is not allowable deduction - CIT(A) grants part relief - held, merely because the assessee is a specialised hospital, only doctors can run the show successfully. What is also required to run the business successfully is business acumen which come from the top functionaries of the organisation. Profit in any business is a time-tested guiding factor and any dip in it clearly shows its relationship with the persons insured by the assessee - the premium paid for their insurance policies cannot be disallowed - Assessee's appeal allowed:MUMBAI ITAT;

SERVICE TAX SECTION

2009-TIOL-1785-CESTAT-AHM.pdf

M/s Parmar Kishor Mandap Service Vs CCE, Rajkot (Dated: June 12, 2009)

Service Tax - Stay/dispensation of pre-deposit - whether Garbha Mahotsav organised by the Government is a religious function? - Since the issue is debatable, pre-deposit of Rs 50,000 ordered.: AHMEDABAD CESTAT;

2009-TIOL-1784-CESTAT-AHM.pdf

M/s Express Kargo Foundation Pvt Ltd Vs CST, Ahmedabad (Dated: August 31, 2009)

Service Tax - Stay/Dispensation of pre-deposit - Business Auxiliary Service - the findings of the Commissioner (Appeals) on the question of invoking extended period are self-contradictory and prima facie extended period is not invokable - The appellants have already deposited part of the demand - pre-deposit of the balance amount waived.: AHMEDABAD CESTAT;

2009-TIOL-1783-CESTAT-DEL.pdf

M/s C T Cotton Yarn Vs CST, Delhi (Dated: August 24, 2009)

Service tax – Delayed payment of service tax of Rs. 66 lakhs – Claim regarding no intention to evade tax to be examined in detail at regular hearing as finding in adjudication order on this count clear – Assessee directed to pre-deposit Rs. 20 lakhs on account of penalty and entire liability towards interest: DELHI CESTAT;

CENTRAL EXCISE SECTION

2009-TIOL-1780-CESTAT-BANG.pdf

M/s Hero Plywoods & Boards Vs CCE, Calicut (Dated: May 1, 2009)

Central Excise – Undervaluation of plywood declaring part values for excise levy and allegation of cash flow back from dealers – Matter remanded to Commissioner to quantify differential duty as demand pertains to two different periods i.e. normal price regime and transaction value regime – Penalties on company and managing partner to be levied after proper quantification of duty liability – Confiscation and penalties confirmed against dealers: BANGALORE CESTAT;

2009-TIOL-1779-CESTAT-BANG.pdf

M/s V B Oil Mills (P) Ltd Vs CCE, Tirupathi (Dated: May 6, 2009)

Central Excise – Common inputs used in manufacture of vegetable oils and bye product viz., soap stock – Credit on inputs utilized in manufacture of exempted goods reversed with interest after adjudication proceedings – No prescribed method of maintaining separate accounts for common inputs – No requirement to pay 10% if credit reversed – Matter remanded to original authority for verification: BANGALORE CESTAT;

2009-TIOL-1778-CESTAT-AHM.pdf

M/s Motorol Speciality Oils Ltd Vs CCE & CC, Vadodara (Dated: July 2, 2009)

Central Excise – Merely because there are common directors, employees, premises etc companies do not become related to each other – Mutuality of interest, intention to evade duty and suppression of facts to be clearly established by revenue – Impugned order demanding duty and imposing penalty set aside: AHMEDABAD CESTAT;

2009-TIOL-1777-CESTAT-AHM.pdf

M/s Sparta Cements & Infra Ltd Vs CCE, Rajkot (Dated: August 31, 2009)

Central Excise – Credit availability on cement and steel structures supporting plant and machinery, matter referred to Larger Benches – Fit case to dispense with pre-deposit of duty and penalty – Stay granted: AHMEDABAD CESTAT;

CUSTOMS SECTION

2009-TIOL-593-HC-KAR-CUS.pdf + vikram story.pdf

CC, Bangalore Vs Sri Vikram Jain (Dated: September 30, 2009)

Customs – When goods are found as having not suffered custom duties and authorities afford adequate opportunity to persons to prove their dutiable status, burden of proof shifts to persons from whom goods are seized – Breach of Customs barrier not relevant to adjudicate case when goods are proved to be of foreign origin and smuggled in nature and have not suffered customs duties – Authorities at place of seizure competent to adjudicate case – Tribunal's order remanding the case to competent authority having jurisdiction to adjudicate case after due investigations, set aside: KARNATAKA HIGH COURT;

2009-TIOL-1782-CESTAT-MUM.pdf

M/s Cosmo Films Ltd Vs CC, Mumbai (Dated: September 17, 2009)

Import by baggage - Goods freely importable and there is no requirement of an Import licence – so goods cannot be confiscated and fine and penalty in lieu of import licence cannot be imposed – Order set aside and appeal allowed with consequential relief.: MUMBAI CESTAT;

2009-TIOL-1781-CESTAT-AHM.pdf

M/s VAZ Forwarding Ltd Vs CC, Kandla (Dated: July 27, 2009)

Customs - No direct evidence on record to show that CHAs were aware of advance licences being bogus and forged – No justifiable reason to impose penalties – Impugned order set aside : AHMEDABAD CESTAT;