TMI Tax Updates - e-Newsletter
April 5, 2012

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise Indian Laws

Articles

1. Cost Accounting Record Rules 2011 to Service Industry

   By: ajay singh

News

1. FM to Hold Meeting with Representatives of Jewellery Manufacturers from Major Cities on Friday 6th April, 2012.

2. Amendment in the provisions for filing of return of income.

Notifications

Companies Law

1. S.O. 268(E) - dated 13-2-2012 - Co. Law

Indian Government Accounting Standard 3 on Loans and Advances made by Governments.

DGFT

2. 110 (RE-2010)/2009-2014 - dated 2-4-2012 - FTP

Validity of extension for export of 6,50,000 tons of wheat products upto 31.03.2013.

Circulars / Instructions / Orders

Income Tax

1. H- 6506/15.02.001/2011-12, - dated 3-4-2012

Small Savings Schemes - Public Provident Fund Scheme, 1968 (PPF, 1968) and Senior Citizens Savings Scheme, 2004 (SCSS, 2004) - Revision of interest rates.

2. F.No.225/138/2011/ITA.II - dated 30-3-2012

Section 119 of the Income-tax act, 1961 - income-tax authorities - instructions to subordinate authorities - order under section 119(1).

3. 1/FT&TR/2012 - dated 31-1-2012

Section 144C of the Income-tax Act, 1961 - Dispute Resolution Panel (DRP) - Reference to - Constitution of DRP at specified places.

FEMA

4. 103 - dated 3-4-2012

Data on import of Gold – Statements – Modification .

5. 102 - dated 2-4-2012

Use of International Debit Cards/Store Value Cards/Charge Cards/Smart Cards by Resident Indians while on a visit outside India.

Central Excise

6. 964/07/2012-CX - dated 2-4-2012

Clarification regarding classification of structural components of Boiler and admissibility of CENVAT credit on these structural components – reg.

Highlights / Catch Notes

Income Tax

• Interest Rates Revised for PPF 1968 and SCSS 2004 as per Circular No. H-6506/15.02.001/2011-12.

  Circulars : Small Savings Schemes - Public Provident Fund Scheme, 1968 (PPF, 1968) and Senior Citizens Savings Scheme, 2004 (SCSS, 2004) - Revision of interest rates. - Cir. No. H- 6506/15.02.001/2011-12, Dated: April 3, 2012
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• Income-tax authorities can guide subordinates u/s 119 for uniform tax processes as per Circular No. F.No.225/138/2011/ITA.II.

  Circulars : Section 119 of the Income-tax act, 1961 - income-tax authorities - instructions to subordinate authorities - order under section 119(1). - Cir. No. F.No.225/138/2011/ITA.II Dated: March 30, 2012
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DGFT

• DGFT extends export validity for 650,000 tons of wheat products until March 31, 2013, per Notification No. 110.

  Notifications : Validity of extension for export of 6,50,000 tons of wheat products upto 31.03.2013. - Ntf. No. 110 (RE-2010)/2009-2014 Dated: April 2, 2012
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FEMA

• FEMA Circular Updates Gold Import Rules, Stresses Accurate Data Submission and Compliance for Stakeholders Involved in Importation.

  Circulars : Data on import of Gold – Statements – Modification . - Cir. No. 103 Dated: April 3, 2012
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• Resident Indians Can Use International Debit and Smart Cards Abroad Under FEMA Guidelines, April 2, 2012.

  Circulars : Use of International Debit Cards/Store Value Cards/Charge Cards/Smart Cards by Resident Indians while on a visit outside India. - Cir. No. 102 Dated: April 2, 2012
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Corporate Law

• Indian Government Accounting Standard 3: Framework for Transparent Reporting of Government Loans and Advances for Better Accountability.

  Notifications : Indian Government Accounting Standard 3 on Loans and Advances made by Governments. - Ntf. No. S.O. 268(E) Dated: February 13, 2012
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Indian Laws

• Finance Minister to Meet Jewelry Manufacturers on April 6 to Discuss Industry Issues, Including Tax and Regulation.

  News : FM to Hold Meeting with Representatives of Jewellery Manufacturers from Major Cities on Friday 6th April, 2012.
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• India Updates Tax Return Filing Rules: Key Changes to Deadlines and Documentation for Streamlined Compliance. Review Now to Avoid Penalties.

  News : Amendment in the provisions for filing of return of income.
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Central Excise

• Clarification on CENVAT Credit Eligibility for Structural Components of Boilers Under Central Excise Regulations.

  Circulars : Clarification regarding classification of structural components of Boiler and admissibility of CENVAT credit on these structural components – reg. - Cir. No. 964/07/2012-CX Dated: April 2, 2012
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Case Laws:

• Income Tax

• 2012 (4) TMI 490
  Interim stay of demand – assessee engaged in real estate business following completed contract method – addition of Rs 1.94 crores made under scrutiny assessment – stay petition filed before CIT got rejected – during hearing of writ petition, petitioner submitted to pay Rs 40 lacs for disposal of the appeal – Held that:- Petitioner is directed to deposit said sum within a period of 4 weeks from the date of receipt of a copy of this order. Thereon, third respondent shall hear and dispose of the appeal on merits within a period of four months.

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• 2012 (4) TMI 489
  Recovery of duty - Petition to defer recovery proceedings initiated during pendency of appeal against the order and stay petition - Held that:- 2nd respondent is directed to decide on stay petition within a period of one month. Meanwhile further proceedings for recovering the amount due under said orders will be kept in abeyance.

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• 2012 (4) TMI 488
  Jurisdiction Power of Commissioner - Assessee’s claim in respect of deductions on account of payment of bonus was allowed under Section 43B of the Act - said claim had been allowed in the assessment year 1994-95 also - proceedings initiated for rectification under Section 154/155 were dropped - initiation of suo motu revisional jurisdiction by seeking to revise order of assessment in lieu of the interest of Revenue as the assessee had claimed the deduction twice – CIT set aside the order of assessment and directed re-computation - the assessee approached Court under Article 226 of the Constitution - writ petition was opposed and it was submitted that merely because rectification proceedings were dropped, did not affect jurisdiction of the Commissioner under Section 263 – Learned Single Judge held that the writ petition could be entertained as order of the Commissioner was without jurisdiction - Held that:- the learned Single Judge was not justified in interfering with the order of the Commissioner passed under Section 263 of the Act - an error was noticed by the Commissioner in the order of the AO and thus it could not be held that such an order was beyond the revisional jurisdiction of the Commissioner - allow appeal, set aside the impugned order passed by the learned Single Judge and dismiss the writ petition filed by the respondent assessee.

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• 2012 (4) TMI 487
  Validity of reopening of assessment beyond 4 years – Trust - A.Y. 2004-05 – Revenue contended that provision made in the accounts cannot be treated as income applied to the objects of the trust hence escapement of income – not entitled for double deduction by way of claiming both capital expenditure as application of income and depreciation on capital assets – Held that:- Second contention of revenue is not sustained, since same has been decided in favor of assessee for A.Y. 2003-04. Further, since Income & Expenditure A/c clearly reflects provision for doubtful accounts it is ex facie, evident that there was no suppression of material facts by the assessee. Therefore, in absence of failure on the part of the assessee to disclose fully and truly all material facts, notice issued u/s 148 is quashed – Decided in favor of assessee.

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• 2012 (4) TMI 486
  Appeal by Revenue against the Tribunal - challenging the order that interest under section 234B and 234C of the Act cannot be levied against the assessee as the computation of income has been made under Section 115JA of the Act – Held that:- The pre requisite condition for applicability of Section 234B is that the assessee is liable to pay tax under Section 208 and the expression "assessed tax" is defined to mean the tax on the total income determined under Section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source - The expression "assessed tax" is defined to mean the tax assessed on regular assessment which means the tax determined on the application of Section 115J/115JA in the regular assessment - there is no exclusion of Section 115J/115JA in the levy of interest under section 234B – appeal of revenue accepted.

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• 2012 (4) TMI 479
  Addition - principal agent relationship - addition on the ground of surplus in RGCTP account on sale of development rights to M/s Parsvnath Developers Ltd., made by the AO - The assessee-Board and the Chandigarh Administration are not natural persons but juristic entities and hence there cannot be any oral agreement between them to create agency. The admitted position is that there is no written contract between them to create agency. After taking into account all the materials brought on record including the legal position, we confirm the finding of the AO/CIT(A) that the assessee-Board was not an agent of the Chandigarh Administration in so far as the said project is concerned. All the pleas taken by the assessee in this behalf are therefore rejected. . Regarding diversion of income - if the income, before it reaches the assessee, is diverted away by superior title so that the assessee, when he receives the income, has to pass it on to a third party, the portion passed on, or is liable to be passed on, is not the income of the assessee but of the person to whom it is passed on or is liable to be passed on - Held that: there is no diversion of income arising from the commercial exploitation of land owned by the assessee by an overriding title in favour of the Chandigarh Administration - it is held that the impugned sums accruing to the assessee in pursuance of the Development Agreement did not stand diverted at source by any over-riding title, which is antecedent in point of time, in favour of the Chandigarh Administration - The application or destination of the income has nothing to do with its accrual or taxability. . Whether the AO is right in holding that the impugned amount has accrued to the assessee in the year under appeal and taxing the same as such in the year under appeal - The case of the AO is that the assessee follows mercantile system of accounting and hence the entire bid price amounting to Rs. 821.21 crores being consideration for granting the leasehold and development rights to the Developer has accrued to the assessee in the year under appeal and therefore is chargeable to tax in the year under appeal - assessee has followed accrual system of accounting, the AO has rightly taxed the impugned sum in the year of accrual, i.e., the year under appeal, and not on the basis of receipt or in the years of actual receipt - Appeal is dismissed

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• 2012 (4) TMI 478
  Block assessment - Search and seizure - Undisclosed income - Assessing Officer issued a notice under Section 158 BC of the Act on 11.03.1997 directing the assessee to furnish return of income in Form -2B for the block period 1987-88 to 1997-98 - In addition to the above sum of Rs.75 lakhs, the assessee also paid another sum of Rs.25 lakhs to AIADMK on 13.07.1995 as is evidenced by the statement of his Bank Account - it is an undisputed fact that the assessee would have generated more than Rs.7,73,250/- for the 10 assessment years during the period 1987-88 to 1997-98. Hence the assessee would not have earned any amount from undisclosed source - Held that: it is clear that the Tribunal had given a finding that the assessee had established the source of fund from where it was collected and the collected money was given to the AIADMK head quarters for Building Fund - Decided in favor of the assessee

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• 2012 (4) TMI 476
  Rejection of Audit report u/s 142(2A) by the AO - Undervaluation of closing stock - it is submitted that there was a change in method of valuation of closing stock. In this connection, she has drawn our attention to the table noted by the Assessing Officer, who has held that the closing stock was bifurcated into three categories; finished goods, semi finished goods and goods under process - assessee has, before us, filed a chart giving year-wise details of the closing stock from the assessment year 1997-98 to 2005-06 in respect of finished goods, semi finished goods, goods under process and raw material. The said chart indicates that the closing stock was exported or was sold in different time spans in each year - Assessing Officer did not interfere/reject the valuation of the closing stock made by the assessee @ 90%, 74% and 60% of the sale value for finished, semi finished and goods under process - Considering the volume of business and numerous items involved, the assessee has been valuing the finished goods, semi finished goods and goods in progress on the basis of sale price of these items sold in the subsequent year after deducing a particular margin, which has been uniformly followed by the assessee in the earlier and the subsequent years - for assessment year 2003-04, an assessment order was passed on 31st March, 2006 and in the said assessment order no addition whatsoever was made to the closing stock but the method adopted by the assessee for the said assessment year was same - Decided in favor of the assessee Regarding addition of Rs.25,80,879/- made by the AO on account of travelling expenses - Assessing Officer had disallowed the entire expenditure of Rs. 25,80,879/- The tribunal while partly deleting the disallowance held that the expenses were incurred for purpose of business under Section 37 - Held that: tribunal has estimated and disallowed 20% of the foreign travel expenditure on the ground that it may not have been incurred wholly and exclusively for the purpose of business - Decided in favor of the assessee Regarding addition u/s 40A(2)(b) of the Act on the ground that excessive/unreasonable expenditure was incurred on getting garments fabricated from associate concerns, namely, R.A. Exports and Sensational Exports - Held that: the disallowance had been made mainly on the basis of some technical defaults noted by the A.O. The assessee has satisfactorily explained the absence of GRN or challans, which were not required as the work was being done at the factory premises of the assessee - Assessing Officer did not conduct any investigation or verification into the reasonableness of the said expense with reference to payment made to third parties or fair market charges payable for similar nature of work - Decided in favor of the assessee Regarding rejection of book of accounts - High Court has clearly observed that absence of stock register, in a given situation, may not per se lead to an inference that the accounts were incomplete or false but this issue has to be examined keeping view the other factors, which include fall in gross profit rate - Held that: the contention of the Revenue that stock register was not maintained and the relevant column of the auditor s report record indicate absence of the stock register, justify rejection of the books of accounts, cannot be accepted - Decided in favor of the assessee

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• 2012 (4) TMI 475
  Search and seizure - Block assessment - Undisclosed income - Provisional attachment to protect revenue in certain cases - it is stated that the block assessment proceedings were to be completed by 25th August, 2007 but in view of the stay granted by the Supreme Court, the proceedings were still pending - The third proviso was inserted in 2009 by Finance (No. 2) Act of 2009 with retrospective effect from 1st April, 1988 is as under:- “Provided also that the period during which the proceedings for assessment or reassessment are stayed by an order or injunction of any court shall be excluded from the period specified in the first proviso - The contention relating to communication of the order also need not be decided as there is no order extending the provisional attachment under Section 281B on or after 24th January, 2008 - It is not the contention of the Revenue and it was not urged and in our opinion rightly that the third proviso incorporates a deeming provision, which has the effect of continuation or extension of the last order under Section 281B dated 19th July, 2007 which was upto and valid till 24th January, 2008 - It does not stipulate that the provisional attachment order issued, shall be deemed to be effective and continue beyond the stipulated period mentioned in the order, when there is an injunction or an order by a Court staying the assessment/reassessment proceedings The contention of the petitioner is that there is no connection between the block assessment proceedings and the refunds which are due to the petitioner - The “connection” mentioned in the said order has reference to the reasons stated in the order of provisional attachment and whether the said reasons have any nexus or connection with the assessment/reassessment proceedings, which have been stayed by the Supreme Court Whether the Revenue can pass a fresh order under Section 281B in view of the third proviso to the said Section introduced/inserted by Finance (No. 2) Act of 2009 with retrospective effect from 1st April, 1988 - The petitioner in fact had filed an application CM No. 2845/2010 challenging the retrospective amendment, which was dismissed as withdrawn vide order dated 26th May, 2010.

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• 2012 (4) TMI 474
  Exercise of jurisdiction by the Assessing Officer under Section 147/148 - deduction under Section 33AC and deduction under Section 80IA of the Act - The tribunal has held that the aforesaid reasons to believe do not justify reopening and satisfy the requirements under Section 147/148 of the Act. - Held that :- Re-assessment proceedings were initiated by the Revenue, inter alia, stating that income had escaped assessment in respect of so many items. Additions were made on account of as many as six heads - The order passed by the tribunal is cryptic and does not deal with the contentions and the issues raised with reference to the reopening under Section 147 of the Act - the tribunal has not examined and dealt with the said aspect as mandated and required - accept the appeal by the Revenue and pass an order of remand directing the tribunal to decide the issue afresh

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• 2012 (4) TMI 473
  Deemed dividend - Assessing Officer held that Rs. 2,13,84,360/- received by the partnership firm from Bharti Enterprises Pvt. Ltd. should be treated as deemed dividend. It may be noted that the two partners hold more than 10% shares in Bharti Enterprises Pvt. Ltd - learned counsel for the respondent-assessee submits that the payment of Rs.2,13,84,360/- was not out of accumulated profits but this contention was not examined by the CIT (A) and Income Tax Appellate Tribunal as the respondent had succeeded on the other ground mentioned above - Decided in favor of the assessee by way of remand to Tribunal. Regarding capital loss - It was simultaneously claimed that a note was enclosed with the return stating that long term capital gains on the sale of the property was exempt under Section 54, consequent upon her purchase of a residential house in Vasant Vihar for more than Rs.13 crores. The Assessing Officer expressed reservation/doubt about the exemption claim by Deepika Mittal under Section 54 after stating that only Rs.50 lacs was paid to her and balance amount was payable on registration of the sale deed. - held that:- The Revenue should have examined and verified the records before raising the said contention in this appeal.

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• 2012 (4) TMI 101
  Allow ability of discount charges in respect of debentures issued by the assessee while computing income from house property - the outstanding loans which were utilized for the construction of property were converted into deep discount debentures in assessment year 2001-02 - AO observed that it was a colourable device. - AO further observed that no interest liability had accrued to the assessee as the liability on account of interest would arise only on maturity of deep discount debentures. He therefore held that the claim of deduction under section 24(b) was not allowable and accordingly he disallowed the claim in both the years which was disputed by the assessee. - CBDT in Circular No.28[F 8/8/69-IT(A-I)] dated 20.8.1969 a copy of which has been placed by the assessee at page 46 of the paper book that fresh loan raised to repay the original loan used for construction of house property will be eligible for deduction under section 24(vi) which corresponds with present section 24(b) - Held that: the claim has already been allowed by the Tribunal in the initial year i.e., assessment year 2001-02 and appeal filed by the department has been dismissed by the Hon'ble High Court - the principle of re-judicata is not applicable in case of income tax proceedings, the rule of consistency has to be followed when there is no change in legal and factual position. In view of the judgment of Hon'ble Supreme Court in the case of Madras Industrial Finance Corpn. Ltd. (1997 -TMI - 5591 - SUPREME Court), the difference between the issue price and maturity value has to be spread over the debenture holding period and only proportionate amount can be allowed as deduction in a particular year. Tax liability in the hands of director - held that:- it is for the department to ensure that the director pays tax on interest income from year to year as it has power to enforce compliance and assessee can not be penalized for the failure of the department to take action in case of the director.

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• 2012 (4) TMI 100
  Interest u/s. 234A, 234B, & 234C - assessee is a notified person under the Special Court (Trial of Offences relating to Transactions in Securities) Act 1992 - The levy of interest under the provisions of Sections 234A, 234B and 234C is mandatory in nature - The submission which has been urged on behalf of the Respondent, however, is that the provisions of the Special Court Act, would override those of the Income Tax Act, 1961 and that consequently the provisions of Sections 234A, 234B and 234C would not be attracted - the remedy of a notified person who is assessed to penalty or interest after the notified period would be to move the appropriate authority under the taxing statute in that connection - it has been directed that no reduction or waiver of interest shall be ordered unless the assessee files a return of income for the relevant Assessment Year and pays the entire income tax due on the income as assessed - Held that: the assessee in the present case, is not without remedy since it is open to the assessee to take recourse to the remedy available under the direction dated 26 June 2006. We accordingly answer the questions of law as framed in the negative - it would be open to the notified person to seek a waiver or reduction by making an application to the Chief Commissioner of Income Tax in terms of the order dated 26 June 2006 of the Central Board of Direct Taxes. - The appeal is accordingly disposed of

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• 2012 (4) TMI 99
  Exemption u/s 10A(2) - Depreciation - Deduction u/s 80HHE - Capital or revenue expenditure - Assessing Officer held that the undertaking was carrying on the same business before Assessment Year 1995-96; it was formed by splitting up or reconstruction of a business already in existence since the same business was being carried on by the software division of IOCL before the assessee came into existence and all the assets and liabilities including plant and machinery previously used were transferred to the Section 10A undertaking - In relation to a software technology park, the condition required that the undertaking must begin to manufacture or produce articles or things during the previous year relevant to the Assessment Year commencing on or after 1 April 1994 - the test in law is as to whether the undertaking is formed by splitting up or reconstruction of a business already in existence - Tribunal in the present case has come to the conclusion that where a running business is transferred lock, stock and barrel by one assessee to another assessee the principle of reconstruction, splitting up and transfer of plant and machinery cannot be applied - Reconstruction is of a business already in existence and there must be a continuation of the activities and business of the same industrial undertaking - In the present case, the entire business of the software undertaking was transferred to the Assessee - Decided in favor of the assessee

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• 2012 (4) TMI 91
  Validity of revisionary powers exercised by CIT u/s 263 – exemption u/s 54F for LTCG on sale of shares granted by A.O. – shares purchased on 21.04.2000 for Rs 19,536 sold on 02.05.2001 for Rs 6,36,640 – increased price of more than 30 times in one year – CIT suo-moto assumed jurisdiction on ground that AO failed to make any enquiry while accepting genuineness of the share transaction – Tribunal set aside order of CIT – Held that:- Jurisdiction u/s 263 in the present case has not been exercised merely on the ground that the A.O. should have gone deeper into the matter but by pointing out that the A.O. had failed to apply his mind in allowing the benefit u/s 54F by accepting the genuineness of the capital gain - Decided in favor of Revenue.

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• 2012 (4) TMI 90
  Capital gain - the assessee had filed its return of income and had, amongst others, offered an income of Rs.11,15,44,005 as capital gains - in the instant case, that the return was filed by the assessee and the assessee disclosed a capital gain amount of Rs. 11,15,44,005 - A footnote if at all can be for the pur- pose of amplification or for further reference or any such thing, but not to indicate a stand contrary to the main thing - a footnote cannot guide or control a return which is filed by an assessee. A footnote if at all can be for the pur- pose of amplification or for further reference or any such thing, but not to indicate a stand contrary to the main thing - Held that: the instant case was not one of a principle of estoppel being put against the assessee to deny any examination but it was a more a case of non-production of relevant material by the assessee which would have compelled the Tribunal or the Appellate Commissioner to examine and opine on that and merely raising a ground is not a substitute for material to make good the ground - Appeal is dismissed

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• 2012 (4) TMI 89
  Indo-German DDTA - Appeal by revenue – CIT(A) stated assessee's income from ground handling and technical handling services is not taxable in India as the same is held to be covered by Article 8 of DTAA India and Netherlands - The Tribunal has observed that such services are to be considered part of business of assessee from operation of aircraft in international traffic – assessee stated that Article 8(1) of DTTA propound that profit from the operation of aircraft in international traffic shall be taxable only in the contracting state in which the place of effective management of the enterprise is situated - Accordingly "international traffic" means, transport by aircraft operated by an enterprises which has its place of effective management in a contracting state except when the aircraft is operated solely between places in the other contracting state – Held that:- that any receipt received by the assessee due to participation in the pool as provided in IATP manual and also explained in sub-article 4 of Indo-German DTAA will not be taxable in India under sub Article 1 of Article 8- The Indo-Netherlands treaty is similar to that of Indo-German and not in parity with Indo UK Treaty - appeal of revenue dismissed.

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• 2012 (4) TMI 88
  Appeal against the order passed by the CIT(A) that the appellant is a Govt - institution established for public charitable purposes and ought to have considered exemption u/s 11 of the IT Act - the expenditure incurred by the appellant in the light of the provisions of section 36(1)(xii) of the Act – delay of filing of return for 2003-04 and 2004-05 - The assessee filed petitions for condoning of delays - reasons for delay communicated were that assessee income was assessed under 143 and 147 being aggrieved filed an appeal and ld. CIT(A) disposed of the said appeal and the Secretary was not working at the relevant time - the matter was entrusted to other lawyer who not in the knowledge of the Income-tax matters, Commissioner and Director of Agriculture, Hyderabad advised to claim exemption u/s 11 of the IT Act and for this purpose seek registration of the AMC under section 12AA of the IT are required to file the returns of income, the Secretary was under the bonafide impression that once the registration is granted, it could claim exemption u/s 11 of the IT Act. Therefore, no appeal was filed before the Hon'ble ITAT against the appellate order of the ld. CIT(A) – Held that:- the reasons advanced by the assessee do not show any good and sufficient reason to condone the delays of more than 1500 days - The delays are not properly explained by the assessee – appeals filled by assessee dismissed

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• 2012 (4) TMI 87
  Exemption u/s 54F - The assessee sold the property on 8-6-2006 and immediately thereafter, on 5-7-2006, purchased a landed property to construct a house for a consideration of Rs. 33,88,160 - the Civil Court granted injunction to the owners of the property and ordered status quo, which prevented the assessee from proceeding further in constructing the residential house - The expiry of the three-year-period from the date of sale of the property was on 8-6-2009 - Even though these circumstances were explained before the assessing authority, the claim of exemption made by the assessee under section 54F was rejected on the ground that the assessee has not constructed the residential house within the period of three years, which is mandatory as per the provisions of the Income-tax Act, 1961 - the learned counsel appearing for the assessee, argued that the sale proceeds were straightaway utilized by the assessee in purchasing the landed property to construct a residential house and it was on that basis that exemption was claimed under section 54F - intention of the assessee is very clear from the fact that within days of the sale of her old property, the assessee had purchased the new site for constructing a residential house - The purchase value of the property is more than the long-term capital gains taxable in the hands of the assessee - Held that: the entire amount spent by the assessee in purchasing the land should be construed as amount invested in purchase/construction of residential house - Decided in favor of the assessee

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• 2012 (4) TMI 86
  Assessment under scrutiny - assessee had transferred as per the agreement goodwill to client which AO contested that it cannot be treated as a capital receipt and be treated as a revenue receipt and brought to tax under the head "Profit and Gains of Business'' – Held that:- :- if the entire agreement is read as a whole there is no transfer of Goodwill at all - acquirer has not acquired the business name/brand name which is the main ingredients of Goodwill - said consideration is paid for sale, transfer and assigning the business, the network and benefits and obligations of pending contracts of the business and commercial rights associated with - consideration paid is not for the goodwill but it is for the assets, properties and rights of the transferor hence treated as capital receipt - in favour of assessee. Loss on shares disallowed by the assessing officer by invoking the explanation to Section 73 of the Act as the same amounted to speculative loss - Held that :- Section 73 deals with loss and speculative business - If a Company whose gross total income consists mainly of income which is chargeable under the heads "Interest on securities", the "Income from house property", "Capital gains" and "Income from other sources" and if such Company indulges in purchase and sale of shares then by a deeming provision that it is carrying on the speculation business is not attracted - Section 73 is not attracted and the assessing authority committed an error in disallowing the said deduction claimed by the assessee – in favour of assessee.

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• Customs

• 2012 (4) TMI 485
  Petition filed for directing respondents to dispose of the refund claim application – Held that:- Respondent is directed to dispose off refund claim on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. No opinion is expressed on merits of the matter.

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• 2012 (4) TMI 484
  Writ petition for a Mandamus directing the respondents to release the goods residue Wax imported vide Bill of Entry No.5345063 - third respondent on being forwarded the Bill of Entry alleged that the petitioner had undervalued the goods and withhold the goods - petitioner submits to release Residue Wax as it will melt causing great prejudice to the petitioner - petitioner claims that since Residue Wax is declared as freely importable goods, the value declared by the petitioner has to be accepted as correct as per the provisions of the "Customs (Provisional Duty Assessment) Regulations, 1963 - Held that:- only reason for non releasing of the goods is that the petitioner has undervalued the goods at USD 325 per MT - writ petition is disposed of - provisional release of the goods in regard to deposit with the custom authorities the duty payable on the value declared by them i.e. USD 325 Per MT and 50% of the differential duty

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• 2012 (4) TMI 93
  Application for restoration of the appeal - Learned Counsel for the respondent confirms that the electronic copy of the order placed by Revenue is correct. In view of material facts recorded in para 2 to 9 of order of Hon ble High Court there is no appeal existing in the record of the Tribunal calling for disposal and the matters have come to an end - Learned Counsel for the respondent confirms that the electronic copy of the order placed by Revenue is correct - Held that: the order passed today shall be subject to the decision of the Hon ble High Court of Delhi on the restoration application of the appellants , if any, as has been averred by the learned Counsel for them - Miscellaneous Applications praying for adducing additional evidence are misconceived and fail

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• Corporate Laws

• 2012 (4) TMI 483
  Companies Act 1956 - petitioning-creditor seeking immediate appointment of a provisional liquidator over the company – non-payment of debt – winding up petition filed by creditor in 1998 dismissed on ground of reference made by the company to the BIFR prior to the filing of such petition – no scheme formulated by BIFR for nearly a decade - immovable properties of the company were alienated against little or no consideration – fictitious financial restructuring undertaken by the company to have positive net worth to de-register itself from BIFR scheme – other creditor’s winding-up petitions also admitted - Held that:- Merely by virtue of the pendency of the reference, the company enjoyed the suspension of legal proceedings, contracts and the like under Section 22(1) of the BIFR Act of 1985. A series of measures was adopted by the management of the company as a part of a vicious and malafide design to cheat its creditors, deceive all authorities and, its employees. In such circumstances, petition is allowed by way of appointment of official liquidator as the provisional liquidator over the company. Since, company is unable to show that transactions of sale of immovable properties were necessary or for the purpose of augmenting resources to discharge the company’s debts. Hence they being fraudulent, the title therein may not be deemed to have passed at all from the company – Decided in favor of petitioner.

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• 2012 (4) TMI 92
  Petition under Article 226 of the Constitution of India, a writ of Mandamus - direct the respondent/Registrar of Companies to register a company without insistence on the petitioners providing a local address - the petitioners are residents of Moscow - They complied with all the requirements of an applicant/ applicants seeking incorporation of a Company - Despite all formalities compiled with , the petitioners were told to make enquiries delaying the process of incorporation and registration of their Private Limited Company – reasons for delay communicated that the foreign subscribers have not stated their local address – one Company of these very subscribers has been registered as a Private Limited Company in the State of Maharashtra - an affidavit was filed by Registrar while signing MOA and AOA in respect of existing Company, the foreign subscribers showed their presence in India - period of stay is more than 3 months hence requirement of furnishing local address - Held that:- the petition succeeds. The Respondent is directed to register and incorporate the private limited Company in the State of Goa provided the petitioners comply with all other rules and regulations and requirements thereof save and except furnishing of the local address.

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• Service Tax

• 2012 (4) TMI 492
  Demand - Classification - erection commission and installation or works contract service - Held that: the activity undertaken by the applicant have been clarified by Board vide Circular no. B1/16/2007-TRU dated 22.5.2007 as covered under works contract services. - Decided in favor of the assessee

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• 2012 (4) TMI 491
  Maintainability of application filed u/s 96(C) of the Finance Act, 1994 – whether subsidiary of a subsidiary of a Government company, could invoke the jurisdiction of Authority for advance ruling - questions, identical to the ones sought to be raised by the applicants, are pending before the CESTAT at the instance of the holding company – Held that:- If ruling is given in this case, it will bind only the applicants, this would mean CESTAT is free to render a ruling ignoring what is being ruled by this Authority. Such a situation should be avoided. Also, once the existence of the conditions specified by any one of the clauses barring the jurisdiction of the Authority is established, the Authority was bound to reject the application. No necessity is felt for adjudication on first contention. We, thus, reject these applications in exercise of our discretion – Decided against the appellant.

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• 2012 (4) TMI 107
  Availment of services of commission agent abroad – 'Business Auxillary service' - period involved 13.07.2004 to 31.03.2005 – assessee contending non-taxability of said services before 18.04.2006 - Held that:- Liability under Finance Act 1994 for availing service of foreign agents arise after 18.04.2006 following Apex Court decision in case of Indian National Shipowners Association v. Union of India (2010 - TMI - 78723 - Supreme Court of India) - Decided in favor of assessee.

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• 2012 (4) TMI 106
  Refund - Cenvat credit unutilised - Mandate of Rule 5 of Cenvat Credit Rules, 2004, grants refund of unutilised Cenvat credit - Decided in favor of the assessee

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• 2012 (4) TMI 105
  Waiver of pre-deposit - Classification - The issue involved in this case is regarding discharge of Service Tax liability on the appellant as a society which imparts training for the candidates and collects the fees from them as charges and not discharging the Service Tax liability - Held that: the issue involved in this case is to be considered from the factual matrix as to whether there was any suppression of facts on the part of the assessee - the issue involved in this case is to be considered from the factual matrix as to whether there was any suppression of facts on the part of the assessee - Decided in favor of the assessee by way of direction to deposit Rs.50 ,000 within a period of 4 weeks from today and report compliance on 14.02.2012

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• 2012 (4) TMI 104
  Demand - Claim for exemption under Notification 12/2003-ST which was not claimed in adjudication proceedings - Revenue was of the view that the permission granted as per the agreement to TAFE to use the Trade Mark for tractors is Intellectual Property Right Services as defined in section 66(55a) and 66(55b) of Finance Act ,1994 and hence the appellants should have paid service tax on the consideration receive - The Counsel submits that as per this definition in the Constitution transfer of right to use, whether or not for a specified period, constitutes sale. In their case the transfer is in perpetuity and there cannot be a doubt that it constituted sale - The appellants continues to be owner of the trademark "EICHER" and they have only permitted TMTL to use the Trademark in relation to tractors and is squarely covered by the definition of "intellectual property service" - When the contract is read as a whole it is indeed a contract for transfer of the right to use the Trademark for limited purposes but on a permanent basis - the impugned contract, in its pith and substance is not a "transfer of right to use" and is more in the nature of permission to use the trademark which continues to be the property of the licensor - The Appeal is thus allowed partially by setting aside the penalty imposed. However the demand for tax and interest are confirmed.

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• Central Excise

• 2012 (4) TMI 482
  Rebate claims - Petition filed for directing respondents to dispose of the various rebate claims filed by applicant - Held that:- Respondent is directed to dispose off rebate claim filed by applicant on 16.08.2011, 17.08.2011, 04.11.2011, 07.12.2011, 08.12.2011 and 23.01.2012 on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. No opinion is expressed on merits of the matter.

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• 2012 (4) TMI 480
  Period of limitation – rejection of rebate claim on ground of limitation - goods actually exported on 12.02.2006 – finally assessed copy of shipping bill handed over to assessee on 25.06.07 – rebate claim filed on 17.07.2007 – Held that:- U/s 11B a claim for the refund of duty has to be made within a period of one year from the relevant date; the date on which the ship or the aircraft in which such goods are loaded leaves India would be regarded as the relevant date. Therefore, rejection of application for rebate filed on 17 July 2007 is justified – Decided against the assessee.

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• Indian Laws

• 2012 (4) TMI 481
  Vested right of promotion – petitioners passed the department examination, for the post of Senior Tax Assistants in February, 2009 seeking consideration for promotion to that category before 1.1.2010 - vacancies were identified as available as on 1.1.2010 to operate during F.Y. 2010-11 – Held that:- Appointment to a higher category, even by promotion, is not a vested entitlement. It is also the vested right that among the persons in the field of choice, seniority will apply unless the junior has certain other grounds for marching over the priority based on seniority that may be available to an admitted senior. In present case, petitioners do not have any claim that any person junior to them in same category was given promotion in preference to them. Further, period of service would be counted from actual date of promotion and not from availability of vacancy – Petition dismissed

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