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TMI Tax Updates - e-Newsletter
March 7, 2012
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Central Excise
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
Income Tax
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Whether on the facts and circumstances of the case and in law, the assessee, who is a share broker, is entitled to deduction by way of bad debts under Section 36(1)(vii) read with Section 36(2) - held yes - HC
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100% EOU - Deduction u/s 10B - There is no provision in Section 10B by which a prohibition has been introduced by the Legislature in setting off of a loss which is sustained from one source falling under the head of profits and gains of business against income from any other source under the same head- HC
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Deduction u/s 54F in respect of building under construction despite the same having not being fully constructed within the stipulated period of three years - benefit of exemption allowed - HC
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Whether pending allotment of NCSD would qualify as commodities u/s 43(5) whether its sale is Speculative transaction or Capital loss - PCD issued to existing shareholders - decided in favor of assessee - HC
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Source of capital introduced by the partners - When the assessee has explained the amounts as capital contributions by the partners, the AO is not justified in holding that the assessee has not explained the source. In case the Assessing Officer doubted the genuineness of the source, he should have considered the same in the hands of the partners only and not in the case of the firm. - AT
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Deemed Dividends - Advance from Company - for applicability of deemed dividends accumulated profits should exist on the date of loan - AT
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Business Income Set off against Brought forward loss - Change in shareholding pattern loss not allowed - Share transfer by uncle to nephew is not covered by proviso to Section 79, AO justified in not allowing the set of of less - AT
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Whether Sec. 10(26AAB) of the IT Act, 1961 exempts income of Agricultural Market Committees (AMCs) from the levy of income-tax under the Act, inserted by the Finance Act, 2008 w.e.f. 1st April, 2009 is retrospective in operation - held no - HC
Customs
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SAD - Appellant are not eligible for duty exemption from Special Additional Duty of Customs in respect of Kerosene sold in the State of Orissa without payment of sales tax - AT
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Benefit under tainted DEPB scrips was claimed confiscation - redemption fine - Importer who steps into the shoes of seller of forged document does not stand on better footing and cannot be allowed to retain benefit illegally obtained - AT
DGFT
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Grant of export benefits / incentives to export proceeds realized even in Indian rupees Exports to Iran regarding. - Ntf. No. 105 (RE-2010)/2009-2014 Dated: March 5, 2012
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Exemption of Bhutan from the application of export bans by India on export of Milk Powder, Wheat, Edible Oils, Pulses and Non Basmati Rice. - Ntf. No. 104 (RE 2010)/2009-2014 Dated: March 5, 2012
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Amendment in the subject of Notification No. 99 (RE-2010)/2009-14 dated 23.02.2012. - Ntf. No. 103 (RE-2010)/2009-2014 Dated: March 5, 2012
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Prohibition on export of cotton(Tariff Codes 5201 and 5203). - Ntf. No. 102 (RE-2010)/2009-14 Dated: March 5, 2012
FEMA
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Clarification - Liberalised Remittance Scheme for Resident Individuals. - Cir. No. 90 Dated: March 6, 2012
Corporate Law
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Restoration of name of companies in the register maintained by the Registrar of Companies. - Once this Court is convinced that it is just to restore the company, then to refuse the relief because some thirty party may be inconvenienced by it, would be harsh. - HC
Indian Laws
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Application of provisions of Standards of Weights and Measures Act, 1976 - industrial consumer, institutional consumer versus retail sale - the issue clarified - HC
Service Tax
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Demand of serviced tax under business auxiliary service - Promotion or marketing of service provided by the client versus broadcasting service - pre-deposit of the demands waived - AT
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Input service - Refund - service tax paid on construction services within factory premises - construction of the residential premises - credit denied - AT
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Penalty proceedings - Commissioner is not justified in exercising his suo motu powers to interfere with a discretionary order passed by the original authority to impose penalty - HC
Central Excise
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Once a decision is reversed and set aside, it is immaterial on which point the decision was reversed because on reversion of the decision, it ceases to be a good decision in the eye of law. - HC
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Cenvat Credit - Job work - even assuming that the challans were not received within 180 days he has to pay the interest or even after the receipt of the challans after 180 days he is entitled to take Cenvat Credit - denial of credit is not justified - HC
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Reversal of cenvat credit - Once the credit has been validly taken and utilized, the question of its recovery does not arise when at a later point in time the goods became exempted - AT
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Differential duty paid wrongly - no refund claim filed - suo-mottu credit of cenvat is ineligible. - AT
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Job work - valuation - Provisions of rule 8 i/.e cost plus 10% not applicable. - AT
VAT
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Stock Transfer - F form - Revisional orders - first respondent held that F forms filed by the petitioner did not meet the requirements of the CST (R and T) Rules ; they were incomplete - how-cause notice falls foul of the audi alterant partem rule necessitating the revisional order passed by the first respondent being set aside for violation of principles of natural justice - HC
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Sales Tax / VAT - allowability of discount provided vide credit notes under rule 9(a) discount given by means of credit notes issued subsequent to the sale is as much a trade discount admissible to deduction in determining the turnover of a dealer. - SC
Case Laws:
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Income Tax
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2012 (3) TMI 104
DTAA between India and UK - appellant had made a request u/s. 195 for non deduction of tax from the payment made to ARL - The request was rejected by the DCIT, TDS Circle-1(1), vide his order u/s. 195 dt. 1.12.1998 - Ld. Counsel for the appellant on the other hand, submitted that as far as the case of ARL is concerned, this Tribunal has already taken a view that the receipts in question are not chargeable to tax - It was his submission that since proceedings for assessment of income of the non-resident have been initiated, it was not open to the revenue to initiate proceedings under section 163 of the Act against the appellant - Held that: an agent or any person who apprehends that he may be assessed as such an agent can retain out of the money payable to the non-resident a sum equal to the estimated liability. A mere relation between the business of the non-resident and the activity in India which facilitates or assists the carrying on of the business of the non-resident would result in a business connection - the provisions of Sec. 166 of the Act provides that the provisions for treating person in India as agent of the non-resident does not prevent either the direct assessment of the person on whose behalf or for whose benefit income therein referred to is receivable, or the recovery from such person of the tax payable in respect of such income - Held that: CIT(A)fell into an error in accepting the plea of the appellant and canceling the order under section 163 of the Act - Appeals are allowed
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2012 (3) TMI 103
Whether on the facts and circumstances of the case and in law, the assessee, who is a share broker, is entitled to deduction by way of bad debts under Section 36(1)(vii) read with Section 36(2) of the Income Tax Act, 1961 - The requirement which has been imposed by Parliament in Section 36(2)(i) is that a deduction on account of a bad debt can be allowed only where such debt or part thereof has been taken into account in computing the income of the assessee of the previous year in which the amount of the debt is written off - The brokerage having been credited to the profit and loss account of the assessee, it is evident that a part of the debt is taken into account in computing the income of the assessee - Since both form a component part of the debt, the requirements of Section 36(2)(i) are fulfilled where a part thereof is taken into account in computing the income of the assessee - Decided in favor of the assessee
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2012 (3) TMI 102
Order of settlement commission - assessee filed an application before the ITSC under Section 245C of the Act seeking a settlement of its income for the assessment year 2005-06 - assessee also submitted that its case involved complexity of investigation arising because of the fact that various loose papers were seized during the survey and heavy additions would in all probability be made leading to protracted litigation - After accepting all the submissions of the assessee as noted above, the ITSC settled the additional income of the assessee at Rs. 15 lacs as per the statement of facts filed by the assessee - ITSC has merely observed and accepted the assessee's explanation that the word "cash" has been erroneously mentioned instead of the word "cheque" - The manner in which the ITSC has set out to dispose of the assessee's application before them and the report of the CIT shows that the procedure adopted by them is vitiated and is certainly not in accordance with law - ITSC could not have been satisfied as to the acceptability of the assessee's explanation with regard to the various issues raised before it in the report of the CIT merely on the basis of the reports of the JDIT - Decided in favor of the assessee by way remand to ITSC
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2012 (3) TMI 101
Addition - Deduction u/s 10B - hundred percent Export Oriented Unit (EOU) - Assessing Officer held that a loss sustained by the eligible unit could not be set off against the income of the other units - The earlier provision specifically stipulated that profits and gains derived by an assessee from a hundred percent export oriented undertaking to which the section applies shall not be included in the total income of the assessee - There is no provision in Section 10B by which a prohibition has been introduced by the Legislature in setting off of a loss which is sustained from one source falling under the head of profits and gains of business against income from any other source under the same head - A provision akin to subsection (5) of Section 80IA or for that matter akin to subsection (6) of Section 80I has not been introduced by the Legislature when it enacted Section 10B - Appeal is dismissed
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2012 (3) TMI 100
Disallowance u/s 14A - The instruments resulting in tax free income were purchased the earlier years, whereas the bank loan was availed of in the present year - Further the bank loan was for a specific purpose, i.e. export of sugar and could not be used for any other purpose - Held that: as far as administrative expenses is concerned, the matter has been remitted back to the Assessing Officer - Appeal is disposed of
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2012 (3) TMI 99
Validity of search and seizure - The petitioner has also adduced evidence in the form of affidavits of panchas and has sought an opportunity to cross examine the authorised officer of the Department to substantiate his contention regarding the illegality of the search - Held that: the appellate authority is bound to consider all the contentions of the petitioner including the question as to whether the search is valid and whether the assessing authority had jurisdiction to initiate proceedings under Section 153A on the basis of that search, if the same is invalid - Decided in favor of the assessee by way of remand to appellate authority
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2012 (3) TMI 98
Capital Gain-Whether lump-sum consideration is a capital receipt in the hands of the assessee company- held that:-the amounts were paid to the assessee on account of right to use the know how for a specified period and no outright transfer of know how amounts received thereunder would be nothing but royalty received Royalty -Whether the lump sum consideration was royalty within the meaning of Article-VII of the DTAA -held that:-"royalty" means any royalty or other like amount received as consideration for the right to use copyrights, artistic or scientific works, patents, models, designs, plans, secret processes or formulae, trademarks and other like property or rights -the amount received by the assessee was royalty covered under Article VII of the DTAA and therefore, taxable in India -Royalties derived by a resident of one of the territories from sources in the other territory may be taxed only in that other territory the questions raised were in favour of the revenue and against the assessee.
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2012 (3) TMI 82
Taxability of income from licence fee and parking rent - Assessee claims it as income under the head income from house property and CIT (A) held it as income from other sources assessee pleading rule of consistency - Held that:- Rule of res judicata is not applicable to the income-tax proceedings except where, there are no fresh facts and perpetuation of bonafide mistake made earlier is also not permitted by law. Further, reliance of the assessee that TDS had been deducted u/s 194I, applicable to the TDS on rent is also of no help. Since nowhere section 194I provides that it is applicable only to the rental income chargeable u/s 22 of the Act. Certain types of rent are also taxable u/s 56 "Income from other sources" . Therefore, order of CIT (A), is upheld Decided against the assessee.
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2012 (3) TMI 81
Provision for Contingent liability not made by way of debit to P&l A/c - passed in the books of account of transferee company at the time of take over of assets and liability as per the scheme of the arrangement Revenue invoking Section 41(1) Held that:- In present case, provision was made by increasing investment and creating provision for contingency by corrosponding amount, i.e. routed through balance sheet only and not by way of debit to P&L A/c. Thereby, assessee had not obtained any benefit in earlier A.Y. Hence, order of Tribunal holding inapplicability of Section 41(1) is upheld Decided against the Revenue. Dis-allowance u/s 14A Held that:- Since ITAT has remitted the matter to the A.O. therefore it is directed to A.O. to compute in light of judgement in case of Maxopp Investment Ltd. vs. CIT (2011 - TMI - 208569 - Delhi High Court).
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2012 (3) TMI 80
Deduction u/s 54F in respect of building under construction despite the same having not being fully constructed within the stipulated period of three years for availing of the benefit Held that:- The essence of the said provision is whether the assessee who received capital gains has invested in a residential house. Once it is demonstrated that the consideration received on transfer has been invested either in purchasing a residential house or in construction of a residential house even though the transactions are not complete in all respects and as requited under the law, that would not disentitle the assessee from the said benefit. See CIT v. Sardarmal Kothari (2008 - TMI - 30187 - MADRAS HIGH COURT) In present case, assessee had invested in residential property within twelve months from the date of realization of sale proceeds of shares. Further, substantial construction was completed within three years period. Hence Tribunal was justified in extending the benefit of section 54F to assessee Decided against the Revenue.
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2012 (3) TMI 79
Whether pending allotment of NCSD would qualify as "commodities" u/s 43(5) whether its sale is Speculative transaction or Capital loss - PCD issued to existing shareholders entitlement to get equity shares and NCD under finance scheme bank offered to pay for portion of PCD and buy NCD portion at discounted price assessee accounted for difference in price of NCD and price paid by bank as capital loss Revenue contending it to be speculative transaction as no delivery is effected - Held that:- In present case, it was only NCSD, which is part of the PCD allotted in favour of the existing shareholder and then transferred to the bank, because the amount paid by the bank was treated as a loan to the existing shareholders and the said loan is treated as satisfied by issue of the NCSD to the bank.Therefore, the Tribunal has correctly held that there is an actual delivery and constructive delivery and they will not come within the purview of the "speculative transaction". Further, NCSD cannot be purchased or sold before allotment. Hence, pending allotment, non-convertible portion does not exist as such as commodities Decided against the revenue.
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2012 (3) TMI 78
Plea for waiver of interest u/s 234A delay in filing Return Of Income A.Y. 1993-94 and 1994-95 - books of accounts/documents seized during search conducted in August 1993 assessee allowed to obtain photo copies of the seized books of accounts and documents from February 1994 - long time consumed in obtaining photocopies - prayer for waiver of interest to CIT disposed by him after long delay on 07.04.2008 Held that:- It is apparent that the petitioner has been making payment to the respondents from time to time. Amounts paid, it appears have been adjusted first towards the interest due and then towards the principal amount. However, at the same time petitioner have not been able to show and establish that the entire delay in filing of the returns can be attributed to failure to permit inspection and photocopy of documents/records. Therefore, we are inclined to direct that the petitioner will be entitled to waiver of interest to the extent of 30% in the two assessment years Decided partly in favor of assessee.
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2012 (3) TMI 77
Fee paid to Registrar of Co. & Stamp Duty claimed as deduction - Penalty Proceedings Initiated - Held That:- Penalty can be levied for inaccurate particulars and not inaccurate claim. Further order was passed without taking into consideration reply dated 31.8.2006 filed by the assessee. An order passed in oblivion of, or without considering, the pleadings brought on record, amounts to an order passed without application of mind and such an order is a non est order lacking legal validity and force. Decided against revenue.
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2012 (3) TMI 76
Apportionment of Expenses - Real State Business & Textile Business - Site development expenses, conversion charges, infrastructure development charges, shown under Work-in-progress Depreciation dis-allowed - Held That:- The entire items of plant and machinery, office equipments, furniture and fixtures and vehicles have been used by the assessee in the course of carrying out of its business during the period under consideration. Depreciation allowed. Sale of Share and Mutual Fund - "Capital Gain OR Business Income" - Held That:- Investment out of its own fund and not borrowed fund - In books and balance Sheet the same were disclosed as Investments - The investment has not been rotated frequently as all the shares / mutual funds purchased by the assessee were not sold, rather the same were held for quite number of days - Dividend Income Earned. Sale/purchase liable to tax as Capital Gain.
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Customs
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2012 (3) TMI 94
Revenue effect is too meager - it would be sufficient to keep the questions of law open, if the Revenue wants to agitate the same in an appropriate appeal - Appeal is disposed of
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2012 (3) TMI 93
Writ petition - misdeclaration of goods - Held that: the respondents are directed to complete the process of investigation, enquiry and adjudication, with regard to misdeclaration of goods, within a period of six months from the date of receipt of a copy of this order
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2012 (3) TMI 70
Petitions preferred u/s 482 Cr. P.C. for quashing of the Complaint against petitioners and summoning order accusation u/s 132, 135 of the Customs Act - allegations against the petitioners are of assisting in availing duty drawback fraudulently by preparing belated Bills of Lading - non-mentioning of date of taking charge of the goods on the Bills of Lading prepared - manipulating the export date on the documents and getting them negotiated in the Bank Held that:- The department has recorded statements of many witnesses and a search was conducted at the official premises of the accused where various incriminating documents and false seals of various enterprises were found. The material on record prima facie shows involvement of the petitioners in the offence alleged against them. Denying the chance of a trial to the prosecution will be against the spirit of law Petition dismissed.
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Corporate Laws
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2012 (3) TMI 92
Restoration of name of companies in the register maintained by the Registrar of Companies. - Sectio 560(6) - the expression 'just' would mean that it is fair and prudent from a commercial point of view to restore the company. The Court has to examine the concept of 'justness' not exclusively from the prospective of a creditor or a shareholder or a debtor, but from the prospective of the society as a whole. Once this Court is convinced that it is just to restore the company, then to refuse the relief because some thirty party may be inconvenienced by it, would be harsh. Since today the respondent No. 2 company has a Foreign Award of more than a million dollars in its favour, it would be just, fair and prudent to restore the company to its original status. The ex-management of the respondent No. 2 company are directed to file all statutory returns along with prescribed fees in compliance with all statutory requirements. In the event of their failure to do so, the petitioners are directed to fulfil the aforesaid obligation.
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Central Excise
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2012 (3) TMI 91
Waiver of pre-deposit - whether Rule 10A of the Valuation Rules is applicable to the facts of the present case - assessee is inter alia engaged in the activity of body building at their factory on the motor vehicle chassis supplied by Tata Motors Limited - Perusal of the order of CESTAT dated 5th August 2008 clearly shows that the assessee voluntarily offered to make predeposit in that case, because, the issue being recurring in nature, the Tribunal would hear and disposed of the matter expeditiously - instead of deciding the earlier appeal filed by the assessee expeditiously, the Tribunal was not justified in directing the assessee to make predeposit in the present case by relying upon its earlier order - Decided in favor of the assessee
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2012 (3) TMI 90
Demand - Time barred - Held that: learned counsel for the Revenue has not been able to high-light any provision of law which may show that the scrap of iron and steel; or copper and brass or even plastic waste which is a packing material would be exigible items - Decided in favor of the assessee
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2012 (3) TMI 89
HC refused to interfere in a case where the appellant did not avail the remedy of statutory appeal within the permitted period. - however granted time tot eh appellant to clear the entire arrears within six months.
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2012 (3) TMI 69
Denial of exemption under Notification No.175 /86-CE dated 1.3.1986 on ground of value of clearance exceeding 30 lacs - value of the clearance of goods falling under Heading 84.37 though exempt from payment of duty under Notification No.111 /88 dated 1.3.1988 taken into account while computing the value of clearances for the purpose of Notification No.175 /86 on ground of non-availing of exemption by assessee - manufacturer of goods falling under CH 32 and 84 Held that:- In our view, merely because the assessee, maybe, by mistake pays duty on the goods which are exempted from such payment, does not mean that the goods would become goods liable for duty under the Act. Secondly, merely because the assessee has not claimed any refund on the duty paid by him would not come in the way of claiming benefit of the Notification No.175 /86-CE dated 1.3.86. Therefore, Order of the Tribunal is set aside and adjudicating authority is directed to apply the Notification dated 1.3.86 in the assessee's case without taking into consideration the excess duty paid by the assessee under the Notification dated 1.3.1988 - Decided in favor of assessee.
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