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Cases of persons whose conduct is under investigation or against whom a charge sheet is pending - consideration for promotion - clarification regarding; CBEC notifies amendment in jurisdiction of central excise commissionerates in Mumbai; CBDT notifies University of Pennsylvannia Institute of Advance Study of India for Sec 35 benefits; Sahar Airport Customs seizes assorted readymade apparels worth Rs 11.3 lakh from pax coming from Frankfurt; Discussion Forum on IPR issues to have wider consultation; Competition Commission invites applications for multiples posts on deputation basis; Cabinet gives nod to defreeze sixth Member post for CBEC but ACC-approved both panelists may miss the bus! |
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| Dear Member, Sending the following files: |
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TIOL COMMENTARY Does Revenue Departments fraudulently tinker with documents? SEZ Scheme benefits need to Be extended to IT, ITeS Sector beyond March 31, 2011; MEMORANDUM Cases of persons whose conduct is under investigation or against whom a charge sheet is pending - consideration for promotion - clarification regarding; MIXED BUZZ Discussion Forum on IPR issues to have wider consultation; Cabinet gives nod to defreeze sixth Member post for CBEC but ACC-approved both panelists may miss the bus! |
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NOTIFICATION CBDT notifies University of Pennsylvannia Institute of Advance Study of India for Sec 35 benefits; Notification No 7/2010, Dated: February 3, 2010; CASE LAWS 2010-TIOL-19-ARA-IT.pdf + aai story.pdf Airports Authority Of India (Dated : March 18, 2010) Income tax - Sec 9(1)(vi) & (vii) - Indo-US DTAA - Article 7, 12 - Applicant is a PSU - enters into contract with non-resident company for 'automation upgrade for third runway at IGI Airport, New Delhi' - non-resident supplies hardware, software and providing services relating to installation - whether payments made to non-resident are royalty or fees for included services - in the absence of a PE whether the payments received by the non-resident are business income - whether the payments made for hardware are outright purchase and not taxable in India The contract provides that the title and risk in the property (hardware and software) shall pass to the applicant outside India. Applicant is responsible for payment of import duties and customs clearances. As regards software and documentation, the contract grants to AAI a non-transferable, non-exclusive, royalty free licence for using the software only at Delhi. The applicant contends that the essence of the contract is only purchase of certain copyrighted software and hardware on outright basis subject to certain end-use restrictions. The applicant points out that the consideration stipulated for installation is approximately 0.10% of the total contract value. It is the case of the applicant that the amounts received by non-resident for supply of hardware, software and support services are in the nature of business profits and would not be taxable in India in the absence of Permanent Establishment (PE) in India, having regard to the provisions of Art.7 of DTAA. It is submitted that the payments received by Raytheon cannot be construed as giving rise to income by way of royalty and/or fees for technical services : ADVANCE RULING; CIT , Lucknow Vs M/s Manav Vikas Avam Sewa Sansthan (Dated : February 24, 2010) Income tax - Sec 12(A), 80G - Assessee is a registered society - also gets registration u/s 12(A) - it had originally 10 objects - subsequently adds 14 more objects and gets the same registered - seeks Sec 80G benefits - Commissioner takes the view that after modification of objects assessee is required to seek fresh registration u/s 12(A) - declares earlier registration invalide and withdraw the same - Tribunal disagrees with Revenue - held, in the present case, the sub-section (3) of section 12AA of the Act has came into force w.e.f. 01.01.2004 by the Finance (2) Act, 2004. As such while passing the order, the Commissioner of Income Taxhad no power whatsoever to review or recall the earlier order dated by which the assessee was granted the registration under section 12A of the Income Tax Act - Revenue's appeal rejected:ALLAHABAD HIGH COURT; CIT, Bangalore Vs M N Swaminathan (Dated : February 16, 2010) Income tax - Sec 37 - Assessee runs theatres - pays money to police and gunda elements to keep away from the business premises - AO disallows the claim - CIT(A) goes with the AO - Tribunal partly allows the disallowance - held, since the payments have been made to the police and rowdies to keep away from the premises, it is illegal money and bribe which cannot be allowed as deduction - Revenue's appeal allowed:KARNATAKA HIGH COURT; CIT, Pune Vs Mallinath Sharnayya Swami (Dated : February 25, 2010) Income tax - Sec 158BC(c), 158BFA- Search & seizure - assessee files block return declaring undisclosed income but fails to pay tax - Revenue passes an order u/s 158BC(c) - Tribunal sets aside the penalty - held, Tribunbal has not applied its mind - Revenue has a point that the assessee has not paid tax on the basis of the return u/s 158BC(c) and one of the conditions enumerated in the proviso is not satisifed - case remanded:BOMBAY HIGH COURT; ACIT, Sonepat Vs M/s Atlas Cycles (Haryana) Ltd (Dated: February 26, 2010) Income Tax - Section 36(1)(va) r/w 2(24) - CIT(A) deletes the addition made on account of late deposit of employee's contribution to ESI and EPF - Held, as per the details of these deposits available on assessment order, last deposit was made on 22.2.2005 which is within the accounting year itself and hence admittedly these deposits were before the due date of filing of return of income by the assessee and hence as per two judgments of Delhi High Court in the case of P.M. Electronics and also in CIT v. Dharmender Sharma no interference with the order of CIT(A) on this issue is called for. Revenue's ground rejected: DELHI ITAT; |
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DEPUTATION POSTS Filling up of posts in DG's Office on deputation basis;
SERVICE TAX SECTION M/s Bassi Alloys P Ltd Vs CCE, Chandigarh (Dated: January 20, 2010) ST - Cenvat Credit - Assessee removes inputs and avails credit - subsequently reverses credit availed on the inputs in terms of Rule 3(5) of CCRs, 2004 - Revenue for reversal of credit availed for tax paid on GTA service also which was availed for transporting the inputs - held, in view of lack of express provisions in the CCRs, 2004, for reversing such credit, Commissiner(A) order is not sustainable - Assessee's appeal allowed:DELHI CESTAT; M/s Quippo Energy Pvt Ltd Vs CCE, Ahmedabad (Dated: January 5, 2010) Appellants importing Gas Generating sets from Germany and UK - imported machinery consists of engine coupled with alternator and air inlet filter - thereafter, the appellant procured accessories like radiator, cooling tower, cooling fan, fuel tank, control panel, cables, iron and steel pipes of various sizes etc. and marketed resultant product as "Power Pack" – Revenue after visit to unit in July 2008 alleging that the process undertaken amounts to manufacture and demanding duty of Rs.7.08 Crores – demand confirmed along with penalty and interest – Appellant seeking clarification from department in year 2007 as to whether activity amounts to manufacture – Superintendent informing in the affirmative – Appeal filed with CESTAT after Commissioner(A) rejected their claim and same is pending – whether larger period can be invoked – since duty paying documents available if Cenvat credit allowed on imported items and domestic inputs exercise would be revenue neutral – Strong prima facie case – for waiver of pre-deposit and unconditional stay – Stay allowed:AHEMDABAD CESTAT;
CENTRAL EXCISE SECTION NOTIFICATION CBEC notifies amendment in jurisdiction of central excise commissionerates in Mumbai; CASE LAWS 2010-TIOL-438-CESTAT-MAD.pdf + Luk India Pvt Ltd story.pdf M/s Luk India Pvt Ltd Vs CCE, Chennai (Dated: December 16, 2009) Central Excise – Goods received into factory for repair – re-manufacture – Department has not established the case that the appellants have remanufactured all the goods received under Rule 173H. On the other hand, the appellants have satisfied the requirement of the Rule 173H by submitting D3 intimation as and when they have received defective goods and it was open to the Department for inspecting such goods. It was also open to the departmental authorities to direct the appellants to follow any specific procedure or to maintain any specific record in regard to such goods but that does not appear to have been done. The appellants cannot be asked to pay duty in respect of all the goods received under Rule 173H. The appellants have maintained records in respect of goods which have been remade and details of the new parts used are available from their interdepartmental correspondence. Duty liability restricted to that extent. (Para 6) :CHENNAI CESTAT; CCE, Bhopal Vs M/s Burn Standard Co Ltd (Dated: October 20, 2009) Central Excise - Exemption notification No 8/95-CE - Assessee is a manufacturer of unglazed acid resistant clay bricks classifiable under sub-heading 6902.90 - claims exemption under Notification No 8/95-CE - Revenue denies the exemption - Commissioner(A) allows the assessee's appeal - held, the DR was not fully ready with the facts of the case - Govt is expected to give the necessary support to the Tribunal to decide the issue efficiently and correctly in accordance with the provisions of law - for lack of proper assistance, it may result in disposal of matters prejudicial to the interest of revenue - It is high time for the Government to realize the same and to take appropriate steps in that regard - Registry directed to send a copy of the order to the Revenue Secretary :DELHI CESTAT; 2010-TIOL-436-CESTAT-DEL.pdfCCE, Chandigarh Vs M/s Auora Foam (P) Ltd (Dated: January 21, 2010) Central Excise - Rule 25 of CCRs, 2002 - Revenue team visits factory premises - finds excess stock of raw materials - penalty imposed - Commissioner(A) disagrees and holds that the inputs cannot be confisticated under Rule 25 - held, since the assessee has not taken undue cenvat credit on excess stock but the mere fact that there was excess stock, it is a technical violation - penalty reduced :DELHI CESTAT;
CUSTOMS SECTION 2010-TIOL-180-HC-DEL-EXIM.pdf + Sawhney Export House HC story.pdf M/s Sawhney Export House Vs UoI (Dated : January 21, 2010) EXIM – Writ Petition for disbursement of Cash Compensatory Support and Replenishment Licenses in terms of EXIM Policy of 1988 – Petitioner directed to submit copies of all documents and Revenue directed to examine the claims and pass speaking order – Revenue directed to examine all pleadings and documents including the question of delay and laches, failure to rectify and remove objections etc – Petitioner entitled to ventilate grievances against such order in accordance with law – As regards prayer for compensation/damages, the Petitioners have option to initiate appropriate civil proceedings : DELHI HIGH COURT ; |
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