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GST Task Force Report: An attempt to make it realistic; Interest when Cenvat credit taken but not utilized - Controversy begetting controversy; World economy on recovery path: Iron ore prices to be buoyant in 2010; Exports may flourish under proposed GST regime; Global economic recovery: A 'steely' perspective! Tax deduction at source u/s 194H on commission/supplementary commission received by travel agents from airlines - matter reg; CBDT orders TDS on supplementary commission paid to travel agents by airlines; MCA preparing ground for Indian Corporates to play global ; PM denies new economic policies having adverse effect on poor; President of India accepts AP Governor N D Tiwari's resignation; Mr E S L Narasimhan is new Governor of Andhra Pradesh; DRI seizes Ketamine Hydrochloride worth Rs 44 Cr; CBI books two persons for counterfeiting Microsoft products; 298 sentenced in fodder scams so far; |
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| Dear Member, Sending the following files: |
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TIOL RUN UP TO GST GST Task Force Report: An attempt to make it realistic;Exports may flourish under proposed GST regime; TIOL COMMENTARY Interest when Cenvat credit taken but not utilized - Controversy begetting controversy; World economy on recovery path: Iron ore prices to be buoyant in 2010; Global economic recovery: A 'steely' perspective! DEPUTATION POST Filling up the post of Director in Marine Products Development Authority (MPEDA), Kochi, under the Department of Commerce; MIXED BUZZ CBDT orders TDS on supplementary commission paid to travel agents by airlines; MCA preparing ground for Indian Corporates to play global; UN General Assembly okays USD 5.16 bn budget for fiscal 2010-11; UN Rights official voices concern over promotion of Nepal's controversial army general; DRI seizes Ketamine Hydrochloride worth Rs 44 Cr; CBI books two persons for counterfeiting Microsoft products; |
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Tax deduction at source u/s 194H on commission/supplementary commission received by travel agents from airlines - matter reg; CASE LAWS 2009-TIOL-133-SC-IT.pdf + nalini story.pdf Controller Of Estate Duty, Kerala Vs Nalini V Saraf (Dated: November 25, 2009) Estate duty was introduced in India in 1953 in the height of India 's socialistic experiment to ensure equity. It was abolished in 1985(kept in suspended animation) and was no longer payable in respect of deaths occurring after March, 1985. Unfortunately in this case the death occurred in 1984 and estate duty was charged. However, there was litigation involving the valuation of the estate, one of the sticking points of the estate duty legislation. Exactly a quarter of a century later, the Supreme Court has finally decided the issue in favour of the accountable person. The deceased was a partner of a firm engaged in export of tea.The issue involved was about the valuation of goodwill. Applying the super profits method, the Assistant controller of Estates duty valued the same at three years purchase.He also included the refund of income tax which became due after the death. The Tribunal had applied one year's purchase considering the volatile market conditions.The Supreme Court held that there is no hard and fast rule regarding multiplier to be applied for evaluating the goodwill of a Firm and that it all depends on the nature of the business and the prevailing market conditions. Hence, this is a pure question of fact and does not call for any interference. As for refund of income tax, the same that had not become due at the time of the death since the claim for refund under the Act was pending adjudication and such refund stood determined only after the demise of the deceased and hence cannot be considered to be a property available at the time of the death.: SUPREME COURT; Shri R Gopinath [HUF] Vs ACIT, Coimbatore (Dated: July 24, 2009) Income Tax - Section 2(47)(iv), 45(2) - In the revised return, assessee declares long term capital gains - controversy is regarding the land which the assessee converts into stock-in-trade as per his books of accounts - Thereafter assessee enters into a development agreement with a developer - as per this agreement, assessee provides his land and in return the developer has to give the assessee a built-up area - AO is of the opinion that assessee is liable to tax as per Section 45(2) - assessee offers capital gains on the land under the provisions of Section 45(2) in different years in which he sold the built-up area and thereby the assessee arrives at a long term capital gain but only on the sale of land proportionately for this year vis-a-vis the built-up area sold for the period relevant to the A.Y and thereby split the income on long term capital gain to the assessment year - AO takes the view that the long term capital gain on transfer of land is assessable in the year in which the assessee hands over the possession of the land to the developer in pursuant to the agreement – CIT(A) upholds the action of the AO in computing the long term capital gain-Held, assessee has executed all the sale deeds for transfer of the constructed apartments in favour of the end-user / purchaser, therefore the transfer of the proportionate land took place only when the assessee transferred the construction property by way of sale deeds and offered the business income which was accepted by the Department. In any case, when the assessee has retained the portion of the land being proportionate to the constructed area to be retained by the assessee, then there is no question of transfer of the entire land to the developer. The orders of the lower authorities, qua this issue are not sustainable on the facts as well as on law. AO directed to tax the capital gain arising from the conversion of the land and building into stock-in-trade proportionately into the previous years in which the constructed property was sold by the assessee or retained for self-use and corresponding business income was offered. Growth Avenue Securities Pvt Ltd Vs DCIT, New Delhi (Dated: May 22, 2009) Income Tax—AO calculated book profit u/s 115JB which the assessee challenged on the gorund that net profit shown in the profit and loss account includes a long term capital gain not liable to be taxed in the light of the provisions contained in section. 54 EC—CIT(A) rejected assessee's contention—Held, once the AO finds that income tax payable on the total income as computed under the normal provisions of the Act is less than the specified percentage of book profit, he has to give up normal assessment and has to opt for the assessment under section 115JB, which does not provide for any deduction in terms of section 54 EC of the Act. It is not in doubt that the deduction available to any assessee u/s 54EC is not an item included in the items specified in clauses (i) to (vii) of the Explanation so as to mandate that it is to be reduced from the net profit as shown in the profit and loss account for the relevant previous year for the purpose of computing "Book profit" under Chapter 115 JB—Held, distinction of capital gain as short term and long term is relevant only for the purpose of computation of income from capital gain and determination of tax payable thereupon under the normal provisions of Income Tax Act, and has nothing to do with the preparation of profit and loss account in accordance with the provisions of Part II and III of Schedule VI to the Companies Act—Assesee's appeal partly allowed for statistical purposes.: DELHI ITAT; M/s Nitco Tiles Vs ITO, Mumbai (Dated: December 7, 2009) Income tax - Sec 68 - Assessee is a partnership firm, engaged in import / export of tiles, mosaic and marbles - no business was carried out during the relevant year - AO notices that one of the partners has introduced some capital to the firm - insists on source of fund for the same - Assessee's explanation not accepted and addition made - CIT(A) agrees with the AO - held, the explanation for unexplained credit is not very inspiring and the onus lies on the assessee to prove the same - since the assessee fails to do so, addition is sustainable - Assessee's appeal dismissed : MUMBAI ITAT; |
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M/s Hare Krishna Travels Vs CST, Ahmedabad (Dated: October12, 2009) ST - Condonation of delay - Assessee files appeal after a delay of 22 months - argues that full service tax has been deposited but Commissioner(A) has dismissed the case without examining the merit of the case - held, issue is settled against the assessee as the law does not provide powers to condone delay like the one in this case - Assessee's case dismissed:AHMEDABAD CESTAT; 2009-TIOL-2121-CESTAT-BANG.pdf M/s Manipal Country Vs CST, Bangalore (Dated: March 23, 2009) Service Tax – Penalty – Imposition of penalties under Sections 76, 77 & 78 when service tax paid with interest before issue of SCN – As per Board Circular 137 dated 03.10.2007, once service tax along with interest thereof stands deposited or paid by assessee, it is a conclusion of all proceedings against such person including that of Section 73(3) of Finance Act, 1994 – Order-In-Review contrary to Board Circular and Section 73(3) – Impugned order in review not sustainable, liable to be set aside.: BANGALORE CESTAT; 2009-TIOL-2120-CESTAT-BANG.pdf M/s S S Maritime Vs CCE, Mangalore (Dated: August 6, 2009) Service Tax – Port Service – Activities of loading, unloading, reloading, transportation undertaken in port area not classifiable as Port Service – Appellant also registered with service tax authorities as C & F Agent, Steamer Agent – Impugned activities not required to be provided by a port under Major Port Trusts Act, 1963 – Registration certificate or license issued by port authorities cannot be considered as authorization envisaged in the definition of ‘Port Service' – CESTAT decision in Velji P & Sons (Agencies) Pvt Ltd 2007-TIOL-1853-CESTAT-BANG followed – Demand of service tax and imposition of penalties set aside.: BANGALORE CESTAT;
CENTRAL EXCISE SECTION 2009-TIOL-723-HC-HP-CX.pdf + vanaspati story.pdf CCE, Chandigarh Vs M/s United Vanaspati Ltd (Dated: December 8, 2009) Ultimate clearance of goods at Nil rate due to contingency existing at the time of removal does not affect the Cenvat entitlement that legally arises long before that date: HIMACHAL PRADESH HIGH COURT; 2009-TIOL-2123-CESTAT-BANG.pdf + shalini story.pdf CCE, Hyderabad-I Vs M/s Shalini Steels (P) Ltd (Dated: June 30, 2009) Central Excise – Delay of 548 days in filing appeal by Revenue – Appeal under Section 35E(4) to be filed within three months (one month after amendment in 2007) of the date of communication of order passed in terms of Section 35E(1) – No evidence to show that the appeal was filed by Registered Post with Acknowledgement Due to the Assistant Registrar within time – Tribunal not empowered to condone delay beyond three months – Condonation application and appeal filed by Revenue not maintainable.: BANGALORE CESTAT; 2009-TIOL-2119-CESTAT-BANG.pdf M/s Comtrust Super Designer Tiles (P) Ltd Vs CCE, Cochin (Dated: May 28, 2009) Central Excise – Chequered tiles, paving tiles, interlocking tiles are mosaic tiles, eligible for exemption from payment of excise duty – As per description in exemption notification products manufactured should be commercially known as mosaic tiles – “Mosaic tiles” is a generic name and in order to distinguish products from others each manufacturer would describe his product in a different manner – Revenue did not pose a specific question to chemical examiner on the presence of mosaic chips and chemical examiner also did not answer the question as to whether tiles manufactured by assessee conforms to specifications of mosaic tiles – Reliance placed by lower authority on such report erroneous – Usage of stone dust and sieving them to obtain chips being a viable method for assessee, absence of evidence for purchase of stone chips and also usage of tiles for external applications not a ground to disregard products manufactured as mosaic tiles – When goods were subjected to excise duty due to absence of specific exemption for a brief period, products were accepted as mosaic tiles by department – Suppression of facts and invoking extended period of limitation not sustainable – Demand of duty and imposition of penalty set aside :BANGALORE CESTAT;
CUSTOMS SECTION 2009-TIOL-722-HC-P&H-CUS.pdf + cus story.pdf M/s Bansal Alloys & Metals Pvt Ltd Vs CC, Amritsar (Dated: July 9, 2009) Customs – refund – On physical verification, quantity found less than the one declared in Bill of Entry – Refund can be sanctioned without challenging the assessment order – Priya Blue case distinguished: In Priya Blue's case the importer paid the duty assessed under protest. Therefore, it was held that without assessment order having been modified in appeal or reviewed a claim for refund could not have been made. The competent authority under Section 27 of the Act, subject to fulfilment of the conditions laid therein, was fully competent to exercise its discretion and in view of provisions of Section 149 of the Act permit the amendment of Bill of Entry, on the basis of documentary evidence (examination report), which was in existence at the time the goods were cleared, and order refund of excess duty paid and collected. It is apparent from the record that in the present case the proper officer/assessing officer who assessed the duty and was competent under Section 149 to permit the amendment in the Bill of Entry was the Assistant Commissioner of Customs, who is also the competent authority before whom the refund application is maintainable.: PUNJAB AND HARYANA HIGH COURT; Shri Mukesh Gupta Vs CCE, Meerut (Dated: August 20, 2009) Customs - Import - Mis-declaration - Abetment - Departmental officer - Immunity - The appellant who is a Superintendent of ICD, has himself endorsed the examination report and the bill of entry and had given the pass out order. Mis-declaration of the offending goods has been established. Appellant has not brought any evidence to rebut the charges on him. The appellant is not entitled to be absolved from the charge and liability to penalty. The appellant's is not entitled to the benefit of Section 155 as he has faced charge under Customs Act, 1962 itself for violation of Section 112 readwith 114 of the Customs Act, 1962. Any suit filed against a public servant or a prosecution initiated against him or any other legal proceedings made against him is subject to test of immunity if he has acted on good faith - However, penalty reduced from Rs 10 lakhs to Rs 5 lakhs. (Para 10 and 13). :BANGALORE CESTAT; |
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