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2012-TIOL-NEWS-040

Friday, February 17, 2012
 
     
 

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News Flash

CBDT promotes 10 CITs as CCITs + 13 Addl CITs as CITs

CBDT goes for fresh charge allocation of Members - Investigation goes to K Madhavan Nair & S C Jain gets Revenue

Budget 2012 - With TIOL (See 'DDT' Column)

CBEC Circular on Construction Services – Yet another googly on bouncy track? (See 'ST se GST tak' Column)

CBEC wants Ombudsmen at Ahmedabad, Kolkata and Chennai (See 'DDT' Column)

Sahar Airport Customs seizes assorted goods and gold jewellery worth Rs 5.6 lakhs from pax coming from Dubai

Swiss Ambassador in New Delhi rebuts CBI Director's claim on black money; says Switzerland is not tax haven

Aviation Ministry writes to Ministry of Commerce to allow direct import of ATF to pax airlines

President gives away National Geoscience Awards 2010

Aviation Ministry write to MoC to allow direct import of ATF to pax airlines

46 Bomb blast since 2000: 7 remain unsolved; Conviction in 9

UN envoy applauds Delhi's efforts to prepare people for possible catastrophes

Finance sector hiring shrinks, Consulting expands to fill up (See 'HRIOL News')

HRIOL

   
Common Basket

TIOL COMMENTARY

DDT (Daily Dose of Taxation)

Budget 2012 - With TIOL

ST se GST tak

CBEC Circular on Construction Services - Yet another googly on bouncy track?

SERVICE NEWS

CBDT goes for fresh charge allocation of Members - Investigation goes to K Madhavan Nair & S C Jain gets Revenue

CASE LAW + ANALYSIS

2012-TIOL-126-HC-MUM-FEMA + Reliance story

UoI Vs M/s Reliance Industries Ltd (Dated : February 7, 2012)

FERA /FEMA - Delay of 570 days in filing an appeal under Section 35 of the FEMA, 1999 cannot be condoned: Against an order passed by the Appellate Tribunal, an appeal lies before the High Court under Section 35 of the FEMA ,1999 . Section 35 stipulates that the appeal has to be filed within sixty days from the date of communication of the decision of the Appellate Tribunal. Under the proviso to Section 35, the High Court is empowered upon sufficient cause being shown to condone a delay not exceeding a period of sixty days. In other words, no appeal can be filed beyond the outer limit of 120 days from the date of communication of the order of the Tribunal, before the High Court. The High Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal. The delay of 570 days in filing an appeal before this Court under Section 35 of the FEMA, 1999 cannot be condoned.- Application Dismissed: BOMBAY HIGH COURT

MIX BUZZ

Aviation Ministry write to MoC to allow direct import of ATF to pax airlines

46 Bomb blast since 2000: 7 remain unsolved; Conviction in 9

UN envoy applauds Delhi's efforts to prepare people for possible catastrophes

 

 

 
Direct Tax Basket

PROMOTION - 2012

CBDT Order 34 of 2012

CBDT promotes 10 CITs as CCITs

CBDT Order 33 of 2012

CBDT promotes 13 Addl CITs as CITs

CASE LAWS

2012-TIOL-124-HC-MUM-IT + Mahila story

Shri Mahila Griha Udyog Lijjat Papad Vs DDIT (Dated : January 31, 2012)

Income tax - Sections 10(23B), 143(3), 148 - Whether when in the original assessment proceeding the claim of the assessee u/s 10(23B) has been accepted, no reassessment proceedings can be initiated after four years from the end of the relevant assessment year merely on the basis of change of opinion. - Assessee’s appeal allowed: BOMBAY HIGH COURT

2012-TIOL-123-HC-MUM-IT

CIT, Mumbai Vs ICICI Bank Ltd (Dated : February 8, 2012)

Income Tax - Sections 36(1), 80M, 147, 148, 263 - Whether Explanation 3 to Section 147 will obviate the bar of limitation u/s 263(2) - Whether when the jurisdiction u/s 263(1) is sought to be exercised with reference to an issue which is covered by the original order of assessment u/s 143(3) and which does not form the subject matter of the reassessment, the limitation begin to run from the order u/s 143(3).- Revenue’s appeal dismissed: BOMBAY HIGH COURT

2012-TIOL-104-ITAT-HYD-SB + Raju story

ACIT, Hyderabad Vs Late Dr B V Raju (Dated : February 13, 2012)

Income tax – Sections 2(47), 28(va)(a), 45, 55(2)(a), 143(3), 148 – Whether the consideration received by the assessee under a non competition agreement which was in order to ward off competition was neither for sale of any business nor was for carrying on any business which he was carrying on, which he had transferred, and thus was not taxable under the head capital gains as was not paid for transfer of any intangible right but it was paid for “not carrying out any activity in relation to any business” and would fall within the ambit of Sec 28(va)(a) but since the provisions of Sec 28(va)(a) are not clarificatory and were applicable only prospectively from 1-4-2003, the amount will not be taxable as relating to assessment year prior to assessment year 2003-04. - Revenue’s appeal dismissed: HYDERABAD ITAT (SPECIAL BENCH)

2012-TIOL-103-ITAT-MUM

M/s Bernhard Schulte Shipping India Pvt Ltd Vs ACWT, Mumbai (Dated : December 30, 2011)

Wealth Tax - Section 2(ea) - Whether the assessee cannot claim exemption u/s. 2(ea)(i)(3) or 2(ea)(i)(5) of the Wealth Tax Act if it is not in the business of letting out properties but has let out only a part of its business premises. - Assessee’s appeal dismissed: MUMBAI ITAT

2012-TIOL-102-ITAT-MUM

Om Mitra Securities Ltd Vs ITO, Mumbai (Dated : December 30, 2011)

Income tax - Sections 36(1)(iii), 73 - Whether the interest paid by the assessee is rightly disallowed by the AO treating it as utilized for making investment in the share for getting control in the group companies though as per the balance sheet the owned fund was more than the amount utilized for investment and the shares were acquired as part of its trading activity - Whether when the assessee issued NCD at the rate of interest as prevailing in the year of issuance, the interest cannot be disallowed on maturity considering it as excess as per the prevailing rate of interest on the date of maturity - Whether no addition can be made for the difference in the rate of interest on which the deposits were made in the early years and the funds were borrowed in later years - Whether the assessee is entitled to claim the liquidated damages as expenditure paid by it as per the agreement as it could not provide the office premises as per the agreement. - Assessee's appeal allowed: MUMBAI ITAT

2012-TIOL-101-ITAT-MUM

ITO, Mumbai Vs Pacific Holdings Pvt Ltd (Dated : November 18, 2011)

Income Tax - Sections 14, 28 - Whether entries in books of account are determinative of the nature of the transaction - Whether merely because some shares were shown as stock in trade the income accrued from the sale of such shares can be taxed as business profits ignoring that intention of the assessee was of investment. - Revenue's appeal dismissed: MUMBAI ITAT
   
Indirect Tax Basket

SERVICE TAX SECTION

2012-TIOL-125-HC-MUM-ST + Master story

Master Marine Services Pvt Ltd Vs CST, Mumbai (Dated : October 18, 2011)

Service Tax - Appellant already paid Service Tax of about six Crores - Pre-deposit of 25 Lakhs ordered: The Tribunal observed that it was not concerned whether the Appellants had or not charged/collected service tax since it was their duty to file returns and pay service tax on time. The Tribunal did take notice of the fact that the Appellants had admitted their service tax liability of almost Rs . 5.71 crores . Taking note of the fact that the Appellants had paid an amount of Rs . 7 lakhs towards penalty, they were further directed to pay Rs . 50 lakhs towards the penalty. The Appellant shall deposit an amount of Rs . 25 lakhs within a period of four weeks instead and in substitution of the direction issued by the Tribunal. In the event, the Appellant fails to make deposit, as directed, necessary consequences under the law shall ensue. - Appeal partly allowed : BOMBAY HIGH COURT

2012-TIOL-221-CESTAT-AHM

M/s ASE Capital Markets Limited Vs CCE, Ahmedabad (Dated : November 22, 2011)

Service Tax - Stock Broker Service - Demand of Service Tax on NSE/BSE transaction charges and DEMAT Charges - Stay / Dispensation of pre-deposit - Stay granted in similar cases. Hence stay petition allowed. (Para 2) - Stay granted: AHMEDABAD CESTAT

2012-TIOL-220-CESTAT-AHM

M/s ADF Foods Ltd Vs CCE, Ahmedabad (Dated : November 24, 2011)

Service Tax - Refund of Service tax paid on services used for export of goods -  Terminal Handling Charges - Stay / Dispensation of pre-deposit - Refund of service tax paid on terminal handling charges originally sanctioned, demanded under order of revision. Terminal handling charges is not one of the services notified in Notification No.41/2007-ST, which provides for refund of Service Tax paid on various services used in exported goods. Prima facie no case made out for waiver of pre-deposit. (Para 2 & 5) - Pre-deposit ordered: AHMEDABAD CESTAT

 

CENTRAL EXCISE SECTION

CIRCULAR

excircular960

Clarification regarding admissibility of exemption under area-based Notifications No. 49/2003-CE and 50/2003-CE, both dated 10.06.2003 in specific situations – reg.

CASE LAWS

2012-TIOL-217-CESTAT-DEL

M/s ECE Industries Limited Vs CCE, Rohtak (Dated : July 8, 2011)

Central Excise - Refund - Reduction in invoice value after clearance of goods on account of price-variation clause -  Whether the assessees are entitled for refund of the duty due to reduction in price on account of price variation clause after the clearance of goods.

HELD - As per Section 4, valuation is directly related to the time of removal and place of removal. The duty element is to be determined on the basis of time of removal of the goods, which is issuance of invoices. There is no provision under the Act where it is provided that in spite of payment of duty in terms of the price disclosed in the invoices at the time of clearance of the goods if subsequently lesser amount is received by the manufacturer in relation to such goods then the manufacturer would be entitled for reduction in the duty liability in relation to such goods and on that count for refund of the difference in the amount of duty. (Para 13 & 14) - Appeal dismissed: DELHI CESTAT

2012-TIOL-216-CESTAT-DEL

M/s Ghatampur Sugar Co Ltd Vs CCE, Kanpur (Dated : April 28, 2011)

Central Excise - Refund - Adjustment of arrears of revenue -  Whether letter of Superintendent can be considered as a demand notice -  Letters issued by the Superintendent of Central Excise cannot be treated as demands confirmed against the assessees. In the absence of evidence showing that there were confirmed demands pending against the assessee, adjustment out of refund sanctioned is not legal and proper. The amount so adjusted should be released. (Para 5.3 & 6) - Appeal allowed: DELHI CESTAT

 

CUSTOMS SECTION

NOTIFICATION

dgft10pn099

Corrections in Public Notice No.80/(RE2010)/2009-14 dated 13.10.2011 and Public Notice No.83/(RE2010)/2009-14 dated 31.10.2011.

CASE LAWS

2012-TIOL-219-CESTAT-BANG

M/s Creative Industries Pvt Ltd Vs CC & CE, Hyderabad (Dated : September 21, 2011)

Customs - Stay/Application for waiver of pre-deposit -Import of Photo Composing System and Afga Type Setting Equipment availing benefit of Notification No. 90/94-Cus - BoEs assessed provisionally - Installation certificates not furnished within stipulated time period resulting in demand of differential duty and assessments finalized denying project import benefits - Appellants plea that installation certificates not furnished in time due to unforeseen circumstances acceptable - Tribunal in earlier instance in appellant's own case held that project import benefits cannot be denied for not furnishing installation certificates - Bank guarantee provided by appellant already encashed to recover dues partially - Prima facie case for waiver of deposit of balance dues - Section 129E of Customs Act, 1962 - Stay applications allowed: BANGALORE CESTAT

2012-TIOL-218-CESTAT-MAD

M/s Dott. ING. Scandura Calibration & Instrumentation (India) Pvt Ltd Vs CC, Chennai (Dated : September 7, 2011)

Customs - Valuation - Related party - Appellant is a 100% subsidiary of the overseas supplier acting as exclusive agent - As the seller settles the prices differently when it sells to third party customers as compared when it sells to the related buyer, declared value cannot be accepted in view of proviso (h) to Rule 4 (2) of the Customs Valuation Rules, 1988 - No error in the order of the Commissioner (Appeals) enhancing the level of price list price for unrelated buyer, minus adjustment of 5% for commercial level difference. - Appeal dismissed: CHENNAI CESTAT

 
     
 

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