TMI Tax Updates - e-Newsletter
April 6, 2012

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise Indian Laws

Articles

1. DUTY PAID BY MISTAKE ON EXEMPTED GOODS DOES NOT MAKE THE GOODS LIABLE TO DUTY.

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. Union Finance Minister’s Speech at IRDA’S 72nd Board Meeting.

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

Notifications

Customs

1. 31/2012 - dated 4-4-2012 - Cus (NT)

Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, issued under the Environment (Protection) Act, 1986 (29 of 1986).

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. 104 - dated 4-4-2012

Authorised Dealer Category II – Permission for additional activity and opening of Nostro account.

5. 103 - dated 3-4-2012

Data on import of Gold – Statements – Modification .

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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Customs

• India Updates Hazardous Waste Rules: Compliance Changes for Import, Export, and Management Under Notification No. 31/2012-Customs (N.T.

  Notifications : Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008, issued under the Environment (Protection) Act, 1986 (29 of 1986). - Ntf. No. 31/2012-Customs (N.T.) Dated: April 4, 2012
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FEMA

• Authorized Dealer Category II Gains Permission for New Activities and Nostro Account under Circular No. 104, FEMA Update.

  Circulars : Authorised Dealer Category II – Permission for additional activity and opening of Nostro account. - Cir. No. 104 Dated: April 4, 2012
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• 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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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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Case Laws:

• Income Tax

• 2012 (4) TMI 496
  Deletion of penalty u/s 271(1)(c) – LTCG on sale of factory land and building at Siliguri - deduction u/s 54G denied and penalty imposed on ground that area where assessee's undertaking was located was not declared to be 'urban area' – Held that:- Claim is declined on the ground that the place where assessee's industrial undertaking is located has not been declared to be an 'urban area' - something which is highly technical and it cannot be against the preponderance of probabilities, particularly in the light of legal advice rendered to the assessee, that the assessee made the error bona fide. As long as there is a reasonable explanation for the conduct of the assessee, the onus of the assessee stands discharged. CIT(A) was justified in deleting the penalty – Decided against the Revenue.

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• 2012 (4) TMI 495
  Assessee firm of solicitors and advocates- in reassessment proceedings AO noted that the assessee has made payments to various lawyers for their professional services, but has not deducted tax at source under section 194J such payments are to be disallowed under section 40(a)(ia) - assessee's contention that the amounts paid to the lawyers were reimbursed by assessee's clients, and, therefore, the amounts paid to the lawyers were never claimed as a deduction in the first place - It was then contended that when deduction is not claimed in respect of these amounts, there cannot be any occasion to invoke section 40(a)(ia)- It appears from the copy of TDS certificates that the appellant had raised the composite bills for entire work on its clients and was accordingly paid after deduction of tax – Held that:- As a corollary to this position, unless a deduction is claimed in respect of the said amount, under sections 30 to 38, the disallowance under section 40(a)(ia) cannot come into play at all - the manner in which taxes have been deducted by the end user of the legal services cannot be determinative of whether the assessee has claimed it as reimbursement or no - restored to the file of the Assessing Officer for necessary verifications on this factual aspect.

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• 2012 (4) TMI 494
  Exercise of extraordinary jurisdiction conferred by Article 226 of the Constitution Of India- Petitioner is engaged in the business of turn key projects - a warranty clause providing for warranty of performance - a notice u/s 143(2) of the Act issued in respect of the assessment years 1995-96 and 1996-97 stating that there were reasons to believe that the petitioner s income, chargeable to income tax, as estimated assessment for the aforesaid assessment years, within the meaning of Section 147 of IT Act - petitioner submitted that the said notices had been issued beyond the period of four years and the present assessment proceedings are based only on a change of opinion – Writ was filed - Held that:- the assessing authority had issued the impugned notices on the ground that there were reasons to believe that certain income chargeable to tax had escaped assessment within the meaning of section 147 - It is for the petitioner to raise its objections, if any, in respect of the impugned notices - Even assessing authorities concerned had accepted the methods of accounting for past years, it is for the assessee to substantiate its claim by furnishing the relevant pursuant to the impugned notices issued u/s 148 - when an efficacious alternative remedy is available under a statute, this Court would not exercise its extraordinary jurisdiction, under article 226 of the constitution of India - the writ petitions stand dismissed - open to the petitioner in the above writ petitions to raise its objections within a period of four weeks from date of Order.

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• 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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• Customs

• 2012 (4) TMI 493
  Direction for release the goods - issues involved in this writ petition is covered by the order of this Court, wherein, this Court had directed the respondent therein to release the goods concerned subject to certain conditions – Held that:- Release of goods is directed subject to conditions namely:(i)The petitioner shall pay the entire amount of duty, as per the declared value, which may be based on the contract or price etc.(ii)the petitioner shall provide sufficient bank guarantee in respect of 50% of the difference in duty, in favour of the Department,(iii)the remaining 50% of the difference in duty, the petitioner shall furnish personal bond to the satisfaction of the respondent(iv)adjudication process to be completed by respondents

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• 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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• 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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• 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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• 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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