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TMI Tax Updates - e-Newsletter
February 18, 2012
Case Laws in this Newsletter:
Income Tax
FEMA
Service Tax
Central Excise
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Section 10(15), item (h) of sub-clause (iv) of the Income-tax Act, 1961 - Exemptions - Interest on bonds/debentures - Notified bonds/debentures of Public Sector Companies. - Ntf. No. 07/2012 Dated: February 14, 2012
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Section 10(15), item (h) of sub-clause (iv) of the Income-tax Act, 1961 - Exemptions - Interest on bonds/debentures - Notified bonds/debentures of Public Sector Companies. - Ntf. No. 06/2012 Dated: February 14, 2012
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Income-tax (Second Amendment) Rules, 2012 - Insertion of rule 114DA and Form No.49C. - Ntf. No. 05/2012 Dated: February 6, 2012
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Indo-French DTAA Article 5 of India France DTAA states that even existence of a computer server amounts to existence of a PE within a jurisdiction...... - AAR
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Foreign travel expenditure - Merely stating that the assessee has booked a stall and the sons of the partners were attending is not sufficient. The circumstances exhibits that the sons of partners were taken as those were in close relationship of partners and nothing to do with the business of the firm..... - AT
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Assessbility of amount received for surrender of tenancy right Once Section 45 cannot be applied, it is not open to the Department to impose tax on such capital receipt by the assessee under any other section..... - HC
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Unfortunate litigation - Deduction under 80G - Department to deposit Rs. 1,00,000 as cost in favour of the Rural Project Fund of the assessee-trust. .... - HC
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Transfer Pricing - Arm Length Price - Adjustment on the basis of labour charges - When regular employees are working with an assessee, he cannot terminate their services because of lesser capacity utilization during the year. .... - AT
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MAT - Sales Tax Subsidy - Capital or Revenue Receipt - Capital receipt in the form of Sales Tax incentive needs to be excluded from profit as per P&L Account for the year in computing Book profit u/s 115JB of the Act...... - AT
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Deduction under 80-IC - Proprietorship Converted into Partnership Concern - Benefit of 80IC cannot be denied only on the ground that section 80-IA embraces only cases of amalgamation or demerger of Indian Company.... - HC
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DTAA - Arm length Price - if correct ALP is applied and paid, nothing further would be left to be taxed in the hands of the foreign enterprise. .... - HC
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Deduction under section 80-IB(11) of the Income-tax Act - in the cold storage plant - One could come to the conclusion that cold chain facility becomes complete only when it caters to transportation and storage and it remains incomplete when only storage is involved, therefore, the word "or" should be read as "and" - However exemption granted on the ground of judicial discipline... - AT
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Disallowance of deduction u/s 80IB - all the four conditions laid down in the clauses (a), (b), (c) and (d) of sub-sec. (10) of 80IB were not fulfilled. - no deduction .... - AT
Customs
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Amends Notification No. 36/2001-Customs(N.T) - Palm oil, Palmolein, Soyabean Oil (Crude) and Brass Scrap (all grades) - Traiff Values. - Ntf. No. 11/2012 - Customs (N. T.) Dated: February 15, 2012
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Anti Dumping Duty - Wrong classification by designated authority (DA) - PVC Paste Resin has remained the same during the original anti-dumping investigation as well as during the Sunset Review. The scope of the product under consideration has not been varied otherwise. - decided against the assessee .... - AT
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Refund of customs duty - Notification No.04/2006 - appellant lodged protest before the Assistant Commissioner of Customs complaining realization of excess amount of duty - matter remanded back to decided the issue in terms of sub-Section 5 of Section 17.... - HC
DGFT
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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. - Cir. No. 99/(RE2010)/2009-14 Dated: February 16, 2012
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Minimum Export Price of Onions. - Ntf. No. 96 (RE 2010)/2009-2014 Dated: February 15, 2012
FEMA
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Export of Goods and Services- Simplification and Revision of Softex Procedure. - Cir. No. 80 Dated: February 15, 2012
Central Excise
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Show cause notice - Notice issued after the death of sole proprietor of the concern to the legal heir of the proprietary concern is not sustainable. .... - AT
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Valuation - manufacturing of UPS - inclusion of cost of the battery - value of bought out items is required to be added in the assessable value.... - AT
VAT
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Clarification in respect of revised tax under KVAT Act - Commissioner is justified in regard to the classification of the "Resin Coated Sand" under Residuary Clause.... - HC
Case Laws:
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Income Tax
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2012 (2) TMI 195
Traveling Expense - "Personal" OR "Business" - CIT(A): expenses were related only to travel & conveyance undertaken by the employees - Held That:- No evidence was brought on record by revenue to controvert the finding of CIT(A). Appeal of revenue rejected. Export Promotion - CIT(A) reduced dis allowance to 20% against 25% made by AO - Held That:- In respect of foreign tours, keeping full details, bills & vouchers is impossible. When in past years above position (20% disallowance) was accepted there is no reason to interfere with the same. Bogus Purchases - Held That:- Payments made by A/C payee cheque, copies of ledger has been filed with paper book. CIT(A) rightly deleted additions. Undisclosed Income - "Donations" shown as gifts - Held That:- Assessee has filed copies of statement of donations with relevant receipts issued by the donees - personal bank account with HSBC Bank reflecting donations made - and balance sheet with Income & Expenditure account and Receipts & Payment Accounts etc. Donation made by A/C payee cheque same are duly reflected in the assessees individual accounts. Decided in favour of assessee.
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2012 (2) TMI 194
Unexplained credits alleged bogus share application money received assessment reopened on the basis of information received by A.O. from DIT (Investigation), furnishing information regarding entry operators/accommodation providers statements of directors of company providing entry taken - Tribunal deleted addition made u/s 68 assessee stating that documentary evidence regarding identity and creditworthiness of the share applicants and the genuineness of the transactions were produced - Held that:-The Tribunal, apart from adopting an erroneous legal approach, also failed to keep in view the material that was relied upon by the Assessing Officer. Involvement of the assessee in such modus operandi is clearly indicated by valid material made available to the A.O. as a result of investigations carried out by the revenue authorities into the activities of such entry providers. Therefore, we are unable to uphold the order of the Tribunal confirming the deletion of the addition made u/s 68 Decided in favor of Revenue.
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2012 (2) TMI 193
Validity of re-opening of assessment beyond the period of four years of the end of the relevant A.Y. - Investment company reopened on ground that provision for diminution in the value of the unquoted investments was an unascertained liability and ought to be added back to Net Profit - Original order framed u/s 143(3) A.Y. 03-04 - Held that:- In the absence of any specific provision in Section 115JB at the time when the original assessment was made and having regard to the debatable nature of the issue as to whether Clause (c) of Explanation 1 to Section 115JB would cover cases of amounts set aside for diminution in the value of investment, it can never be postulated that it was the duty of the assessee to have instructed or informed the A.O. as to the legal inference which he should draw from the primary facts. There was thus no failure on the part of the petitioner to disclose full and true primary particulars at the time of the completion of the original assessment. The notice issued u/s 148 is therefore, declared to be without jurisdiction Decided in favor of assessee. Validity of re-opening of assessment of A.Y. 06-07 questioned on basis of judegment in A.Y. 03-04 - adjustment to the book profit u/s 115JB not made for provision for NPA and for doubtful debts return processed u/s 143(1)(a) Held that:- Firstly, notice issued u/s 148 is within the period of 4 years from the end of relevant A.Y. Secondly, issue whether the provisions in question should be added back in terms of the relevant clause in the Explanation-1 below Section 115JB is debatable but the fact remains that it could not be examined since the return filed by the assessee was merely processed u/s 143(1)(a) and, therefore, no inference or opinion could have been formed by A.O. as to the disallowbility of the provisions. Validity of notice issued u/s 148 upheld Decided against the assessee.
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2012 (2) TMI 192
Long-term Capital gains determination of date of acquisition property acquired through inheritance - acquired by previous owner prior to 1-4-1981 assessee share in property determined by virtue of family settlement dated 11-9-2000 - Revenue contending indexed cost of acquisition to be as per F.Y. 2000-01 & not 1981-82 Held that:- Assessee succeeded to this property and in such eventuality the word hold is to be interpreted keeping in mind the judgment in the case of CIT Vs. Manjula J. Shah holding that benefit of indexation shall be available from the year when previous owner first acquired it Decided against the Revenue.
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2012 (2) TMI 191
Principle of natural justice - Un-explained deposits in bank - Held That:- Notices issued only on December 2006 and the assessee was given time upto 28.12.2006 vide notice dt 22.12.2006 to file the details. The assessee made a request on 28.12.2006 that he is sick and could not gather the necessary details. The Assessing Officer turndown the request of the assessee and passed the assessment order on the next day i.e. 29.12.2006. Such an order is against Principle of natural justice and thus do not sustain.
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2012 (2) TMI 190
Registration under 12AA - Object: Develop automobile design, Architectural design - Held That:- Possibility of a future contingency with a remote probability will cannot make the Trust itself a commercial venture.The clause of levying fees from apprentices will not per se convert the assessee-Trust to a commercial establishment.
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2012 (2) TMI 189
Share Capital from Undisclosed Sources - Notice under 133(6) returned unserved - No Directors produced nor the books of account - Investigating report: Entities engaged in providing entries no actual business carried on - Held That:- The addition could not sustain as the primary onus was discharged by the appellant by producing PAN number, bank account, copies of income tax returns of the share applicants, etc. - Assessing Officer was influenced by the information received by the Investigating Wing and on the general modus operandi, whether such modus operandi existed in the present case or not was not investigated by the Assessing Officer. AO is mistaken in question assessee for source of receipt of application money such enquiries should have been made to M/s Diamond Protein Ltd.
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2012 (2) TMI 188
Principle of mutuality - Assessee co-operative society running Gymkhana, received deposit - Interest Income assessable as business Income - Held That:- In view of Effluent Treatment Plant (2010 - TMI - 76801 - BOMBAY HIGH COURT),principle of mutuality is not applicable. - As regards the claim u/s 80P is concerned, if any income by way of interest or dividend derived by the cooperative society from its investment with any other cooperative societies, then deduction u/s 80P is allowable in respect of the said income. - case remanded back to verify the deposits. Transfer fee upto 25,000 covered under mutuality - Amount not received under coercion or under pressure - Held That:- In view of Sind Cooperative Hsg Ltd (2009 -TMI - 34176 - BOMBAY HIGH COURT), claim of assessee allowed. Amount received for additional FSI under TDR rules - AO: amount charged per sq.ft is higher than rate charged by local authority - Held That:- When there is no profit motive or business by collecting such fund by the assessee society, then only because of the rate charged by the assessee society from its members is higher than the rate of local body cannot be a ground for rejecting the principle of mutuality.
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2012 (2) TMI 187
Deduction under 10A - Conditions unfulfilled - transfer of more than 20% of the plant and machinery from the old unit to the new unit - Held That:- We remit the issue of deduction u/s 10A of the Income-tax Act to the Assessing Officer with a direction to verify if the plant and machinery transferred from the Rajajinagar unit to the Whitefield unit is less than 20% as demonstrated by the assessee and also to verify as to whether the assessee satisfies the conditions under the CBDT Circular No. 1 of 2005. Allowed for statistical purposes.
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2012 (2) TMI 173
Indo-French DTAA French Company entered into an IT Agreement with the applicant to provide support services in the area of IT - whether royalty or FTS whether payment would fall under the provisions of Article 13 of the Indo France DTAA in view of the Fact that foreign company does not have a PE in India assessee contending such payment to be reimbursement of expenses - Held that:- Services provided under the IT agreement are in the nature of Fees for Technical Services and taxable under the DTAA as well as under the Act. It is also clarified that payment under the proposed agreement does not represent reimbursement of cost and is taxable in India. Article 5 of India France DTAA states that even existence of a computer server amounts to existence of a PE within a jurisdiction. In such circumstances, Areva T&D SAS France has a PE in India, the payment to it would not fall under the provision of Article 13 of the DTAC. As the Applicant has a PE in India, the income by way of FTS will be taxed under Section 44DA and at the rate provided under the Finance Act for the relevant year and tax withheld accordingly.
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2012 (2) TMI 172
Transfer pricing - What is the data to be considered by the TPO at the time of determining ALP - Whether the appellant should have been given an opportunity to refute the material sought to be utilized by the TPO Turnover filter deduction u/s 10A - Held that:-By providing a specified date in the Act, the obligation is cast upon the assessee to keep and maintain the documents for that period. But, it does not restrict the TPO from making enquiries thereafter for determining the correct ALP. TPO shall take into consideration the contemporaneous data. TPO need not inform the assessee about the process used by him for issuing the notices u/s 133(6) nor is he under any obligation to furnish the entire information to the assessee. However, principles of natural justice requires that appellant has to be given a reasonable opportunity of hearing on that material. In present case, TPO had furnished all the information to the appellant, to which appellant has raised objections. Non- consideration of objections would be an error of judgment, but, not violation of principles of natural justice. Turnover Filter - TPO considered turnover range of ₹ 1 crore to ₹ 200 crores and ₹ 1 crore to ₹ 500 crores Held that:- Turnover of the company is in the range of 24 crores, therefore, the companies, which have turnover of ₹ 1.00 crores to 200 crores alone should be taken into consideration for the purpose of making TP study. Therefore, this issue requires to be remitted back to the file of the TPO for fresh consideration with directions in this regard. Deduction u/s 10A - Held that:- While computing the exemption u/s 10A, if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. See CIT v. Gem Plus Jewellery India Ltd.(2010 - TMI - 76903 - Bombay High Court ) - Decided partly in favor of assessee for statistical purposes.
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2012 (2) TMI 171
Waiver of penalty u/s 271(1)(c) dis-allowance of bad debts assessee funished records & confirmations during penalty proceedings non-examination of documents by A.O./CIT(A) Held that:- Tribunal went into the details, examined the records and the confirmations which were furnished by the assessee and has come to the conclusion that the levy of penalty u/s 271(1)(c) was not justified. In the present case, A.O. and the CIT(A) failed to consider/examine the veracity and correctness of the said papers without any reason. Revenue is unable to show what and where the tribunal has made a factual error or mistake Decided against the Revenue.
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2012 (2) TMI 170
Foreign travel expenditure - Son of partner, technical person - AO disallowed expense being personal in nature - CIT(A) affirmed AO - Held That:- Merely stating that the assessee has booked a stall and the sons of the partners were attending is not sufficient. The circumstances exhibits that the sons of partners were taken as those were in close relationship of partners and nothing to do with the business of the firm. Decided against assesee. Repair on rental building - Capital OR Revenue Expenditure - Held That:- In view of Madras Auto Service (P.) Ltd. (1998 - TMI - 5686 - SUPREME Court), repairing expenses carried out on a rental building are revenue in nature. Payment for Labour Charges - job work for sister concern - Held That:- Job work done is almost 5 times than the actual production. This clearly shows that the alleged job work charges have been paid to sister concerns merely with a view to avoid payment of legitimate taxes. Thus provisions of 40(A)(2) are clearly applicable.
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2012 (2) TMI 169
Sale/Purchase of Shares - "Capital Gain" OR "Business Income" - One share of Jubilant Organosys Limited held as long Term - Investment in (JOL) under Special resolution - Motive to earn dividend - Shown as Investment In B/ST - Held That:- Taxable under head Capital Gains. Shares held for small period of time - motive to earn profit - Held That:- Short term capital gain assessable under Business Income. Expennditure in relation to exempt Income - Held That:- In view of Godrej Boyce Mfg. Co.(Mumbai High Court). Appeal allowed for statistical purposes.
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FEMA
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2012 (2) TMI 177
Condonation of delay of 570 days appeal filed against order passed by Appellate Tribunal constituted under the FEMA, 1999 appeal filed to Appellate Tribunal against an order of adjudication passed on 30.10.2003 by the Special Director of Enforcement, after the repeal of the FERA, 1973 Held that:- An appeal against the order of the Appellate Tribunal would be governed by the provisions of Section 35 of the FEMA, 1999. This 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 Decided against the petitioner.
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Service Tax
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2012 (2) TMI 179
Clearing & Forwarding Agent Services - determination of assessable value including incidental and ancillary expenses connected with and integral to the taxable service provided Held that:- The issue of inclusion is no more in res integra in view of decision in the case of Sri Bhagavathy Traders vs. C.C.E., Cochin (2011 -TMI - 206710 - CESTAT, BANGALORE). Further, it may not be improper to grant waiver of penalty imposed u/s 76 of Finance Act, 1994 since the determination of assessable value was in debatable stage at the inception of law. However penalty imposed u/s 77 of the said Act is confirmed Decided partly in favor of assessee.
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Central Excise
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2012 (2) TMI 176
Quantification of reversal of credit electricity - credit reversed @ 10% of the value of the electricity - no separate records are maintained in respect of Cenvat Credit on the common inputs used in the manufacture of dutiable as well as exempted goods - Held that:- In as much as the issue relates to the correct quantification of reversal of credit which can only be decided at the original adjudicating authority level, we set aside the impugned order and remand the matter to Commissioner(Appeals) for quantifying the credit amount required to be reversed. See Maize Products vs CCE (2008 - TMI - 48307 - High Court Of Gujarat At Ahmedabad)
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2012 (2) TMI 163
Modvat Credit of duty paid on the cleanflow, welding electrodes and various iron and steel items Held that:- As regards Cleanflow, issue already stands decided in the appellants own case, thereby, held to be eligible Modvatable input and credit is allowed in respect of same. Steel items Following the decision in case of Jaypee Bela Plant vs CCE (2011 - TMI - 210276 - CESTAT, DELHI), we remand the matter to original adjudicating authority for examining the availability of credit in respect of various steel items, depending upon actual use of the same. Welding electrodes Held that:-Original adjudicating authority would also re-decide the issue of availability of credit on welding electrodes in the light of decision in case of Ambuja Cements Eastern Ltd. vs. CCE, Raipur (2010 - TMI - 77888 - Chhaitisgarh High Court).
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2012 (2) TMI 162
Determination of relationship - principal to principal or agent and principal - assessee engaged in the blending and packing of Glucon D' for M/s Heinz India Pvt. Ltd excise duty paid at aggregate of cost of raw material, packing material and their job work charges Revenue seeking to levy duty on wholesale price of the product - Tribunal quashed additional excise duty levied Held that:- Neither Tribunal addressed the aspect that whether the relationship between the Assessee and Heinz was one of principal to principal or that of an agent and principal, nor did it consider whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority that assessee status is of hired labour. Therefore, matter is remanded back to the Tribunal. If the Tribunal finds that the Assessee and Heinz are related, it shall remit the matter to the Adjudicating Authority for fresh determination of the assessable value of the goods in question in accordance with law - Decided in favor of revenue for statistical purposes.
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2012 (2) TMI 161
Acquittal of accused from the charges u/s 135(1)(b) of the Customs Act, 1962 - seizure of recovery (gold biscuits and Indian currency) from accused petitioner(prosection) challenging the same Held that:- Trial Judge observed that Prosecution failed to examine independent witnesses without any sufficient reasons. It was a very material lacuna in the case of the prosecution which cast a very strong doubt over the seizure memo/punchnama dated 01.11.1990. Benefit of doubt goes in favour of the accused. Therefore, Trial judge has acquitted the accused not only on the ground argued but also considered the other evidence also Decided against the petitioner.
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