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CBEC modifies revised norms for execution of BG under export promotion Schemes; CBI nabs 9 Customs officials, seizes cash & jewellery worth Rs 41 lakh; Price of recession - Tax burdens falling in OECD economies; Opening and operation of Accounts and settlement of payments for electronic payment transactions – RBI Instructions; Overall employment is up by 4 lakh in Q4: Govt; CBI supplementary charge-sheet fixes Internal Auditor for Satyam scam; Cheques can now be issued in regional languages also: MoS for Finance; |
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| Dear Member, Sending the following files: |
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TIOL RUN UP TO GST GST: Will it be beneficial to all stakeholders? TIOL COMMENTARY SEZs - How to calculate NFE? 'Export of Services' - In No Man's land! RBI NOTIFICATION RBI For Notification in Electronic Payment.pdf Opening and operation of Accounts and settlement of payments for electronic payment transactions – RBI Instructions; MIXED BUZZ CBI nabs 9 Customs officials, seizes cash & jewellery worth Rs 41 lakh; Overall employment is up by 4 lakh in Q4: Govt; CBI supplimentary charge-sheet fixes Internal Auditor for Satyam scam; Price of recession - Tax burdens falling in OECD economies; |
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CIT, Lucknow Vs M/s Kohli Brothers Color Lab (P) Ltd (Dated: November 5, 2009) Income tax - Sec 36(1)(vii) - Assessee is engaged in the business of developing and printing of photos - owns two workshops - files NIL return after adjusting carried forward losses - AO completes assessment u/s 143(3) - then finds a sum claimed as ''amounts written off'' - insists on evidence to recover the same and makes disallowance - held, after amendment to the I-T Act w.e.f 1.4.1989, there is no need for the AO to make inquiries as the assessee is entitled to deduction by merely writting off bad debt as irrecovarable in the books of account - Revenue's appeal dismissed:ALLAHABAD HIGH COURT; CIT, Lucknow Vs M/s Narain Automobiles (Dated: November 5, 2009) Income tax - Sec 148 - AO invokes reassessment powers and issues notice u/s 148 - Assessee alleges that AO has failed to provide reasons recorded in file before issuing the notice - CIT(A) and Tribunal go with the assessee for lack of recorded reasons - held, perusal of the order sheets reveals that the reasons are well recorded, and the orders of the CIT(A) and Tribunal are perverse - Revenue's appeal allowed:ALLAHABAD HIGH COURT; 2009-TIOL-728-ITAT-MUM.pdf + mckinsey story.pdf ADIT, Mumbai Vs Mckinsey & Co Inc (Dated: October 20, 2008) Income tax - Indo-USA DTAA - Article 12,7 - Assessees belong to McKinsey & Co Inc Group - receive money from the Indian branch for services rendered - whether payments made for such services are 'fees for included services' as per Article 12(4) of the DTAA, or whether the same are business profits taxable in terms of Article 7 of the DTAA. Assessees claim they provide strategic consultancy and other services to the Indian branch - insist that since their advisories do not include any transfer of technical knowhow or specialised knowledge, the payments made in this regard cannot be considered as fees for included services as per the treaty - AO observes that since the assessees have failed to furnish any information pertaining to the relevant assessment year it cannot be concluded on the basis of information filed for the FY 1997-98 before the Department that the services rendered are not technical in nature - in the absence of non-submission of relevant documentary evidence, AO treats the payments as fees for included services, taxable as per the treaty - CIT(A) goes by the earlier decision of the Tribunal and allows the appeal - on furhther appeal to the Tribunal,held: ++ No e-mail, correspondence, bill or any other documents or evidence pertaining to the impugned assessment year 2003-04 has been furnished before the AO during the assessment proceedings despite requests to do so. The assessees want the Tribunal to rely on the copy of the e-mail correspondence of 27.10.1997. ++ The AO had called for information which is in the exclusive possession of the assessees. When certain documentation and evidence could be furnished for the assessment years 1997-98 and also for the assessment year 2006-07 there is no reason why similar evidence or documentation cannot be furnished by the assessee to the assessing officer for the impugned assessment years. ++ The assessment order in the case of the Indian branch of McKinsey & Co, Inc, also does not come to the rescue of the assessee because, the fact whether the services received by the Indian branch of the assessee is directly relatable to the services rendered by the Indian branch has also to be verified by the assessing officer and it is for the assessee to lead evidence to that extent. ++ The submissions made by the assessee are only submissions and not facts. Submissions cannot take the place of evidence. It is the duty of the assessee to lead evidence, so as to prove that his submissions are in tune with the facts. When evidence cannot be furnished, the same cannot be made up. ++ The assessing officer should not be prevented from calling for details, under the pretext of "the world knows what McKinsey & Co, Inc does". Even if, the burden is, on the assessing officer to prove that a particular item of income is taxable, at the same time when the assessee does not co-operate or give any information or documentation whatsoever when specifically asked for and when it is undisputed that these documents are in its exclusive possession and only relies on its history and facts that were submitted in the earlier assessments, the assessing officer can draw an adverse inference. ++ Nobody could refuse to furnish any information which is exclusively in their possession and then argue that the revenue has not discharged the burden of proof. The onus is also on the assessee to lead the evidence to prove that the receipt is not taxable because it falls within a provision or it is exempt. ++ Accepting the assessee's plea that the case be decided on the basis of informatin furnished in 1997, would amount to laying down a very wrong precedent. The departmental representative was correct in pointing out that if such a view is taken by the Tribunal, the assessees would not in future also produce any document before any assessing officer on the argument that the facts are same as in the earlier years and the proposition for the law laid down by the Tribunal in earlier years should be followed. ++ The case needs to be examined afresh ; assessees directed to furnish relevant e-mail and other documentary evidences to the AO for arriving at correct conclusion.:MUMBAI ITAT; Shri K C Rajashekaraiah Vs ITO, Bangalore (Dated: April 30, 2009 ) Income Tax - Capital Gains - sale of property - assessee claims exemption u/s 54EC on capital gains earned on the transaction - on account of having invested the said amount in capital gains bonds AO re-computes the capital gains and brings the additional amount after giving exemption u/s 54EC to tax - Assessee's appeal fails at CIT(A) and dispute related to outhouse continues - Held, neither the AO nor the CIT(A) made any effort to summon the tenant, claimed to have occupied the property at the relevant point of time. The AO had option to call for the sanctioned plan from the concerned competent authorities as well. The AO also had the option to look into the concerned records for ascertaining the details of construction. Even the concept of rent claimed under the head 'Other sources" could have been analysed by confronting the same to the tenant. Matter remanded.:BANGALORE ITAT; |
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DEPUTATION POSTS Appointment on deputation to posts under the Central Staffing Scheme for the year 2010; Recruitment of various posts In Competition Commission of India, New Delhi on deputation basis;
SERVICE TAX SECTION M/s Dineshchandra R Agarwal Infracon Pvt Ltd Vs CCE, Ahmedabad (Dated : October 19, 2009) ST - GTA Service - Assessee is into construction of roads and waterpipes - also acts as GTA - Revenue finds assessee was not paying tax on services received as GTA - Demand raised and penalty imposed - Assessee deposits tax with interest before issue of SCN and contests levy of penalties - held, extended period cannot be invoked as there is a revenue neutral scenario involved in this case where the assessee would have been eligible for credit of the tax paid. Since as per Sec 73, the assessee has paid tax with interest there was no need to issue SCN except for suppression. However, suppression cannot be alleged in this revenue neutral situtation. It is a fit case for invocation of Sec 80 - Assessee's appeal allowed: AHMEDABAD CESTAT; M/s Anurag Ferro Products Pvt Ltd Vs CCE,CC & ST, Bhubaneswar-II (Dated : August 26, 2009) ST - Cenvat Credit - Assessee is a manufacturer of excisable goods and a recipient of GTA Service - pays service tax on GTA Service from Cenvat Credit Account - Revenue disallows - Commissioner(A) agrees with the Revenue - held, since the Commissioner(A) has merely gone by the Board Circular which is a binding on the Departmental officers and not the Commissioner(A) who should have examined the issue from the viewpoints of Service Tax Rules and CCRs, 2004, the issue is remanded: KOLKATA CESTAT;
CENTRAL EXCISE SECTION 2009-TIOL-06-ARA-CX.pdf + ara story.pdf M/s Lapp India Pvt Ltd (Dated : November 19, 2009) Central Excise – Manufacture - activity of cutting specified varieties of electric cables into desired lengths, testing and packaging thereof does not amount to manufacture: It is well settled through a series of judgements of the Hon'ble Supreme Court and High Courts in the context of the aforesaid clause (f) that manufacture can said to have taken place only if the processing to which an item is subjected to results in the emergence of a different commodity having its distinct character, use and name and it should be commercially known as such. The question whether a particular process is a process of manufacture or not, has to be determined naturally having regard to the facts and circumstances of each case and having regard to the well known criteria laid down by the Supreme Court in its various decisions.: ADVANCE RULING; M/s Axles India Ltd Vs CCE, Chennai (Dated : September 7, 2009) Central Excise – interest – interest on differential duty paid on supplementary invoices – issue settled by SC in SKF India Ltd case – interest is payable.:CHENNAI CESTAT; 2009-TIOL-1927-CESTAT-BANG.pdf CCE, Bangalore Vs M/s Vijaya Steels Ltd (Dated : May 12, 2009) Central Excise – When duty is discharged based on ACP in terms of Section 3A no separate liability exists for job work undertaken – High Court decision in Dhiman Iron and Steel Inds 2006-TIOL-373-HC-P&H-CX f ollowed – Revenue appeal devoid of merits:BANGALORE CESTAT; CCE, Mumbai-IV Vs M/s Godfrey Philips (I) Ltd (Dated : October 14, 2009) Goods destroyed under supervision of departmental officer – since destruction permission follows remission of duty show cause notice for non-remission of duty is not legal – Revenue appeal rejected.:MUMBAI CESTAT;
CUSTOMS SECTION CIRCULAR Revised norms for execution of Bank Guarantee under specified Export Promotion Schemes - Modifications in Circular No.17/09-Cus dt.25.05.09 - reg. Issuance of EPCG authorization to Branch Offices etc; PUBLIC NOTICE Amendments in SION C1708 and C1789; CASE LAWS 2009-TIOL-122-SC-COFEPOSA.pdf + sc story.pdf Gimik Piotr Vs State Of Tamil Nadu (Dated: November 13, 2009) COFEPOSA – Detention - In matters of personal liberty, the standard of proof needs to be high to justify an order of preventive detention.: Preventive detention is not punitive but a precautionary measure. The object is not to punish a person, but to intercept or prevent him from doing any illegal activity. Its purpose is to prevent a person from indulging in activities, such as smuggling and such other anti social activities as provided under the preventive detention law. The mere fact that on one occasion person smuggled goods into the country may constitute a legitimate basis for detaining a person under COFEPOSA . For this purpose, the antecedents of the person, facts and circumstances of the case need to be taken into consideration.: SUPREME COURT; Ravi S Kotian Vs CC (ACC & Export), Mumbai (Dated : October 29, 2009) Retraction made of confessional statements – recovery of clearance documents, mis-declaration of goods and concealment of gold jewellery are sufficient evidence to corroborate involvement of the appellant in smuggling of the goods. In Customs laws, while deciding the case of smuggling of gold, degree of evidence required to prosecute a person is different as compared to criminal prosecution – statement of co-accused can be used as substantive piece of evidence – Appeal dismissed.:MUMBAI CESTAT; |
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