New decade of Mahindra and Mahindra (See 'DDT' Column)

Land acquisition for Dadri Power Plant: SC grants no relief to petition filed by Anil Ambani Group against Allahabad HC;

CERC announces Renewable Energy Certificate Regulation;

Rejuvenation of old tea bushes: Govt sets up special tea fund;

New decade of Mahindra and Mahindra;

FICCI urges Govt to levy import duty on capital goods;

TIOL COMMENTARY

ddt 18 jan.pdf

TDS on salaries – CBDT releases Circular;

tiol top.pdf

Dear FM, National Nirvana requires three-pronged growth strategy;

MIXED BUZZ

mbuzz1231.pdf

FM invites house panel members to send inputs on Budget;

mbuzz1230.pdf

CERC announces Renewable Energy Certificate Regulation;

mbuzz1229.pdf

Rejuvenation of old tea bushes: Govt sets up special tea fund;

mbuzz1228.pdf

New decade of Mahindra and Mahindra;

2010-TIOL-29-ITAT-AHM-TM.pdf + gift tax story.pdf

Shri Dharamshibhai B Shah Vs ITO, Bhavnagar (Dated: October 9, 2009)

Gift Tax – inadequate consideration - if the consideration itself is incapable of being determined, there is no question of ascertaining whether it is adequate or inadequate: in the case of Sunil Sidharthbhai , it was held by the Supreme Court that when a partner introduces his assets into the partnership firm as his capital contribution, his exclusive interest in the assets becomes a shared interest and to this extent there was a transfer. It was however held that at that point of time, considering the features of a partnership and the position of the partners, it was not possible to conceive of any consideration for the transfer of the assets and therefore it was not possible to charge capital gain on the partner. Relying on this principle, the contention advanced on behalf of the assessee is that if the consideration itself is incapable of being determined, there is no question of ascertaining whether it is adequate or inadequate and therefore there can be no deemed gift under Section 4(1)(a) of the Gift Tax Act. This contention is correct and sound. : AHMEDABAD ITAT THIRD MEMBER;

2010-TIOL-28-ITAT-BANG.pdf

ITO, Mangalore Vs M/s Pragathi Mechatronics Pvt Ltd (Dated: September 9, 2009)

Income tax - Sec 154 - Assessee claims set-off of interest income against loss arising out of capital expenses - AO accepts the return and sends intimation u/s 143(1)(a) - later invokes Sec 154 to withdraw the same benefit - Tribunal holds that a debatable benefit cannot be withdrawn by rectifying the order u/s 154 - review petition - held, as per provisions of law existing at that time, the AO could have rectified only arithmetical mistakes. What could not have been done directly cannot be done indirectly. The remedy with the Revenue was to either issue notice u/s 143(2) or take action u/s 148 after collecting the facts. Revenue's petition dismissed :BANGALORE ITAT;

2010-TIOL-50-HC-DEL-IT.pdf

CIT Vs SMC Credit Limited (Dated: January 7, 2010)

Income tax - business loss - Assessee deals in shares - holds certain shares as investment and also as stock in trade - claims deduction for trading loss - AO disallows - CIT(A) deletes disallowance - Tribunal remands - AO goes by entry treatment in books and again treats it as capital loss - Tribunal holds that the nomenclature of the entry will not decide the actual character of the transactions - since the frequency of trading in shares is very high, it is clearly stock in trade and the AO should have allowed it as business loss - held, it is a finding of facts - no substantial question of law involved - Revenue's appeal dismissed:DELHI HIGH COURT;

2010-TIOL-49-HC-DEL-IT.pdf

CIT Vs Info Vergix Technologies Limited (Dated: January 12, 2010)

Income tax - Assessee is into IT-enabled services business - treats certain sum as deferred revenue expenditure in books but claims the same as revenue expenditure in return - AO and CIT(A) disallow the same - Tribunal allows it - held, although a component of the total expenditure is pre-commencement charges but there is no discussion about the same in the Tribunal order - however, since the tax effect is low, Revenue's appeal is dismissed:DELHI HIGH COURT;

2010-TIOL-48-HC-DEL-IT.pdf

CIT Vs Dharam Shila Cancer Research Foundation (Dated: January 11, 2010)

Income tax - Sec 11, 12 - Assessee is a registered as a scientific research society - runs a hospital - claims exemption for its income - AO disallows on the ground that it provides free services only to doctors and staffs and their relatives and their service charges are almost equal to hospitals run on commercial basis - CIT(A) disagrees - Tribunal finds the adverse notings of the AO are not based on facts - held, no infirmity in Tribunal's order - no substantial question of law involved - Revenue's appeal dismissed: DELHI HIGH COURT;

SERVICE TAX SECTION

2010-TIOL-110-CESTAT-MUM.pdf + ab story.pdf

M/s A B Projects Pvt Ltd Vs CCE, Nagpur (Dated : December 8, 2009)

Service Tax - Construction of godowns at Railway yard for Central Warehousing Corporation which in turn lets out the same for commercial purpose is taxable under Commercial & Industrial Building Construction services - CESTAT:MUMBAI CESTAT;

2010-TIOL-109-CESTAT-BANG.pdf

CCE, Cochin Vs M/s Casino Hotel (Dated : June 15, 2009)

Service Tax – Convention Service & Mandap Keeper Service – Hotel registered as Mandap Keeper eligible for benefit of Notification 12/01-ST – Authorities' attempt to reclassify services under category of Convention Service not correct w hen returns are submitted periodically and classification/claim of exemption notification within knowledge of authorities – Extended period of limitation not invokable – Board Circular dated 07.01.2002 being not beneficial to assessee applicable prospectively in terms of Apex Court judgment in Suchitra components Ltd 2007-TIOL-09-SC-CX – Impugned order being correct and legal, upheld :BANGALORE CESTAT;

2010-TIOL-108-CESTAT-AHM.pdf

M/s Cosmos Detective & Security Services Vs CCE, Ahmedabad (Dated : December 22, 2009)

Service Tax - Valuation - non-inclusion of TDS, contribution to PF and ESI - penalty - since the issue involved is a pure question of interpretation, it is fit case for waiver of penalty under Section 80 of the Finance Act, 1994.:AHMEDABAD CESTAT;

2010-TIOL-107-CESTAT-DEL.pdf

CCE, Lucknow Vs M/s P N Construction (Dated : October 1, 2009)

Anomaly in calculating the number of days of delay in payment of service tax i.e. one for charging the interest and another for imposition of penalty – Appellant paid service tax in two parts before issuance of SCN – Penalty rightly held liable to be paid for delay of 142 days only and accordingly reduced – no infirmity in order of Commr(A) – Revenue appeal rejected.:DELHI CESTAT;

CENTRAL EXCISE SECTION

2010-TIOL-106-CESTAT-MAD.pdf

M/s India Japan Lighting Ltd Vs CCE, Chennai (Dated : September 24, 2009)

Central Excise – differential duty paid on account of additional amounts received – the appellants are liable to pay interest in view of the Supreme Court decision in SKF India Ltd, but not liable for penalty under Section 11 AC of the Central Excise Act, 1944 – token penalty of Rs 50,000/- imposed by the Commissioner (Appeals) is upheld. :CHENNAI CESTAT;

2010-TIOL-105-CESTAT-BANG.pdf + mangalore story.pdf

M/s Mangalore Chemicals & Fertilisers Ltd Vs CCE, Mangalore (Dated : July 2, 2009)

Central Excise – Allegation of use of duty free naphtha for manufacture of goods other than fertilizers viz., carbon dioxide – In a chemical process, the quantity of different products emerging not within the control of human beings – Quantity of carbon dioxide produced determined only by nature of chemical reactions and not under the control of appellants – Separation of carbon dioxide to prevent poisoning of catalyst a technological necessity and an inevitable by-product – If legislative intent is to restrict use of naphtha only for manufacture of fertilizers then the phraseology in notifications viz., ‘intended for use' would not have been used – Duty demand on naphtha used in production of by-product set aside – When entire process of manufacture was informed to the Department through declarations, no justification to invoke extended period – Impugned order set aside:BANGALORE CESTAT;

2010-TIOL-104-CESTAT-DEL.pdf

M/s Mittal Alloys Vs CCE, Ludhiana (Dated : May 20, 2009)

Central Excise – Manufacture of non-alloy steel ingots in induction furnace of 3MT capacity by following Rule 96ZO – Requirement of intimation regarding date and time of closure and recommencement of production prescribed under Rule 96ZO(2) not an empty formality – When intimations about closure and commencement do not duly comply with Rule 96ZO(2), abatement claim fails – In any case, availment of option of composition scheme for payment of duty under Rule 96ZO(3) bars assessees from claiming of abatement under sub-rule (2) thereof as held by Apex Court in Venus Castings case = 2002-TIOL-113-SC-CX – Recoveries under compounded levy scheme for re-rollers not covered by time limits prescribed under s. 11A – Claim of demand notice being hit by limitation not sustainable – Demand of duty and interest also upheld – Rejection of abatement claim upheld

Penalty – Penal provision for default in payment of duty under Rule 96ZO (3) introduced through an amendment with effect from 1.5.98 – Proviso requires manufacturer to clear dues by 30.4.98 and it is not in dispute that amended part of the rule and notification came into force with effect from 1.5.98 – It is nowhere on record that appellant had opportunity to know the contents of those provisions prior to 1.5.98 – Penalty for prior period set aside – Penalty leviable only after 01.05.1998 :DELHI CESTAT;

2010-TIOL-103-CESTAT-MAD.pdf

M/s Sterling Biotech Ltd Vs CCE, Salem (Dated : September 7, 2009)

Central Excise – CENVAT Credit – payment of 8%/10% on exempted products is not applicable to the by-products.:CHENNAI CESTAT;

CUSTOMS SECTION

2010-TIOL-102-CESTAT-BANG.pdf

M/s Blue Gold Maritech (International) Ltd Vs CC, Guntur (Dated : July 16, 2009)

Customs – Demand of duty foregone on capital goods procured under exemption Notifications 188/93-Cus and 196/94-Cus – Depreciation to be allowed till the date of payment of duty and not till the date of de-bonding – Adjudicating authority has not followed the directions of CESTAT in remand order – Adjudicating authority to reconsider the issue and pass a speaking order – Matter remanded :BANGALORE CESTAT;