TMI Tax Updates - e-Newsletter
May 15, 2012
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
FEMA
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
Income Tax
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Typewriter is a machinery entitled to depreciation at 25%
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Special audit u/s 142(2A) - opportunity of being heard before issuance of order of special audit - Cogent and valid reasons have been assigned by the Assessing Officer - order is not in error.
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TP - Re-computation of arms' length price (ALP). - selection of comparable - no opportunity of being heard was provided to the assessee for rebuttal, therefore the Assessing Officer was not justified in considering those comparables while working out the ALP
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In the case of intangible asset being commercial/business rights diminution in value or physical wear and tear is not an essential condition for admissibility for depreciation u/s 32
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Period of investment for claiming exemption u/s 54EC - investments have been made within six months of receipt of such consideration. - exemption allowed.
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Income from house property - notional interest on interest free deposits and advance rent - if the rent received or receivable is more than the municipal value then the actual rent received or receivable will be taken as annual letting value of the property within the meaning of section 23(1)
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Deduction u/s 80IA - the word "it" is used to denote an enterprise. Therefore, there is no requirement that the assessee should have been the owner of the infrastructure facility.
FEMA
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Bogus exports - Fabricated Export - export under the DEPB Scheme - Violation of the provisions of Section 3(b) and Section 3(d) of the Foreign Exchange Management Act, 1999 - orders of the Settlement Commission can not be challenged.
Indian Laws
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Supreme Court Upholds the Powers of Central Excise Officers to Issue Summons for Recording Evidence During Investigations
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CBDT clarifies “Vodafone was warned“
Service Tax
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The question as to whether the part of brokerage received by the appellant as sub-broker from the main broker would attract service tax has to be answered in the light of the judgment on this issue in the case of Vijay Sharma & Co. (2010 - TMI - 78818 - CESTAT, NEW DELHI - Service Tax)
Central Excise
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Adjustment of refund claim (rebate claim on export of goods) with demand stayed by the CESTAT
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CE - Classification of grab bar - the sanitary-ware - grab bar cannot be said to be a part of the bath tub. It's more like base metal amounting of heading 83.02
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Amends Notification No. 49/2008-CX., (N.T.), Dated: December 24, 2008 - MRP based duty of Excise - Prescribes rate of abatement - Notification
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2012 (5) TMI 168
Entitlement to the bad debt written off - revenue contested it as the same was hit by the provisions of Section 36(1)(viia) – Held that:- The issue is covered by a decision in Catholic Syrian Bank Ltd. Vs. Commissioner of Income Tax (2012 - TMI - 210762 - SUPREME COURT OF INDIA) stated that u/s 36(1)(vii), the assessee would be entitled to general deduction upon an account having become bad debt and being written off - The proviso to Section 36(1)(vii) will relate to cases covered under Section 36(1)(viia) and has to be read with Section 36(2)(v) - Thus, the proviso would not permit benefit of double deduction, operating with reference to rural loans - therefore provisions of Sections 36(1)(vii) and 36(1)(viia) are distinct and independent items of deduction and operate in their respective fields – against the Revenue. Claim for depreciation on furniture and electrical fittings as well as typewriters - Held that:- Applying the decision of Commissioner of Income Tax, Madras Vs. Mir Mohammed Ali (1964 - TMI - 49371 - SUPREME Court) typewriter is a machinery entitled to depreciation at 25% and not at 33 1/3 %, as had been held by the Tribunal - as far as assessment year 1992-93 is concerned, the furniture and fittings are with reference to the bank, the assessee carrying on business in banking, sub-clause (1) would be a relevant entry and hence, the assessee would be entitled for deduction at 10% and the typewriter as machinery at 25% - in favour of revenue.
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2012 (5) TMI 167
Depreciation against assets given under hire purchase transaction - Board Circular No.689 dated 24.8.1994 - held that:- the Board pointed out that in matters of hire purchase, where the agreement disclosed the ownership resting with the lessee, the claim of depreciation should be allowed to the lessee on the entire purchase price. - Decided against the assessee.
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2012 (5) TMI 166
Special audit u/s 142(2A) - opportunity of being heard before issuance of order of special audit - held that:- A comparison of the show cause notice given to the petitioner with the reasons given by the Assessing Officer would show that the grounds on which the previous approval has been granted, finds mention in the show cause notice dated 11th of September, 2011 and the petitioner has not been prejudiced in any manner. - Decided in favor of revenue. Examination of books of accounts and form 3C before order u/s 142(2A) - held that:- The Assessing Officer first tried to clear the doubts by calling replies and he resorted to Section 142 (2A) thereafter, he found that it is difficult to work out the real income of the assessee due to complex nature of the entries in the account books. It is one thing to say that the account books may be rejected and the best judgement assessment may be resorted to under section 144 of the Act. But even then, best judgement cannot be arbitrary or whimsical. There has to be some basis for it. - Cogent and valid reasons have been assigned by the Assessing Officer - order is not in error - decided against the assessee.
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2012 (5) TMI 165
Treatment of Communication Expenses under section 10A - Re-computation of Arm's Length Price - AO while framing the assessment u/s 143(3) computed the deduction under section 10A of the Act by reducing lease line charges from export turnover, but not from the total turnover. - held that:- t if an item is excluded from the export turnover, the same should also be excluded from the total turnover to maintain parity between the numerator and denominator while calculating the deduction under section 10A of the Act. - matter remanded back to AO to recompute the deduction u/s 10A. TP - Re-computation of arms' length price (ALP). - selection of comparable - held that:- no opportunity of being heard was provided to the assessee for rebuttal, therefore the Assessing Officer was not justified in considering those comparables while working out the ALP in assessee's case. In that view of the matter, we deem it appropriate to set aside this issue back to the file of the Assessing Officer, to be adjudicated afresh in accordance with law, after providing due and reasonable opportunity of being heard to the assessee. - Matter remanded back. Adjustment where price variation falls within +/- 5% range of arithmetical mean of the comparables. - held that:- it appears that the benefit of +/- 5% adjustment has not been given to the assessee for the reason (as mentioned by the TPO) that sales made by the assessee to third parties were higher in comparison to the rates of sale by AEs to the assessee. But nothing is brought on record to substantiate the aforesaid observations of the TPO. - Since the facts of the present case are similar to the facts involved in the aforesaid referred to case of Tatra Vectra Motors Ltd. [2012 (4) TMI 359 - ITAT BANGALORE], so respectfully following the said order, we direct the AO to allow the benefit of +/- 5% to the assessee while computing the ALP.
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2012 (5) TMI 164
Addition u/s 68 - Penalty u/s 271 - share application money - onus to prove - held that:- the assessee has to discharge the primary onus by placing on record the basic information about the investors. This initial burden can be said to be discharged if the names and addresses of the investors are placed on record. Further, initial burden can also be said to be discharged if the mode of payment is also placed on record. The initial burden or the primary onus can also be said to be discharged if the genuineness of the transaction, i.e. share applications are also placed on record. Once all those documents were produced, then it can be safely held that the requisite primary onus, as casted upon an assessee, has been discharged. Thereafter, it is for the AO to scrutinize those details. The Hon'ble Courts, as cited hereinabove, have suggested that if the AO had made certain enquiries and nurtures any doubt about the creditworthiness of those investors, then he is free to take appropriate action in their respective hands. - Decided against revenue. Condonation of delay as granted by CIT(A) - held that:- litigant must not be thrown out of the litigation at the very threshold without providing an opportunity of hearing. Particularly in this case, we have noticed that the assessee was vigilant about his right of appeal and, therefore, knocking one door or the other and seeking for justice. It is not the case that no appeal at all was filed earlier. The first appeal was filed very much in time but it was treated as non-est due to non-payment of tax. A second appeal was filed after making the payment of taxes, stated to be a sum of Rs. 3,47,830/- as T.D.S. and Rs. 10,96,409/- as self assessment tax thus totalling to Rs.14,44,239/- i.e. admitted tax liability. Meanwhile, against the first appeal, the assessee had gone before Tribunal, however, that appeal was withdrawn in the month of November-2005 because by that time the assessee obtained the impugned order of CIT(A) Ahmedabad which was dated 27/10/2005, the impugned appellate order now under appeal before us. On account of these facts, it is not logical to conclude that the assessee was negligent or irresponsible, therefore, did not entitled for any discretion or sympathy. - Decided in favor of assessee.
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2012 (5) TMI 163
Unexplained investment - books of account had ever been produced before any Income-tax Authority for verification - ITAT deleted the addition - held that:- The source of investment was shown by the assessee by producing the relevant books of account. The books of account had contained the relevant entries for withdrawal of the amount - tribunal after considering the entire materials on record including the reasons given by the Assessing Officer and Appellate Authority has chosen to disagree and has recorded its independent findings holding that the investment is clearly reflected in the books of account produced by the assessee and has been properly explained by the assessee. The findings recorded by the Tribunal are essentially findings of fact based on material. - No substantial question of law - decided against the revenue.
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2012 (5) TMI 162
Depreciation on the intangible assets - purchase of franchise for a consideration of ₹ 5.51 crores. - it was contended that the assessee has not acquired any particular asset but it is a case of transfer of a on-going concern. - held that:- AFL transferred its rights of business and business network with respect to the money transfer business being the representative of the Western Union network. It is clear that it is not the case of entire on going concern i.e AFL or its brand name; but only business rights in respect of one of its various businesses. In the case of intangible asset being commercial/business rights diminution in value or physical wear and tear is not an essential condition for admissibility for depreciation u/s 32, if the assets used as a business tool for earning the income. The assessee paid the consideration for the purpose of enhancing its network in the field of money transfer business by acquiring the rights over infrastructure and other advantage attached to the marketing network and hence, the same falls under the category of intangible asset as contemplated u/s 32(1)(ii) of the IT Act. - Decided in favor of assessee.
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2012 (5) TMI 161
Period of investment for claiming exemption u/s 54EC - held that:- the interpretation placed by the CBDT in consultation with the Ministry of Law to the condition of making investment within six months from the date of transfer in section 54EC would support the claim of the assessee in this case also for exemption from capital gain with respect to the impugned sum of Rs 50 lakhs invested in specified assets on 3.8.2007 and 27.10.2007. - In the present case, admittedly the impugned amount of sale proceeds have been received by the assessee much after the date of transfer - investments have been made within six months of receipt of such consideration. Therefore, having regard to the interpretation placed by the CBDT to understand the requirement of making investment within six months from the date of transfer in section 54EC of the Act we are inclined to uphold the plea of the assessee for exemption from tax on capital gains qua impugned amount of Rs 50 lakhs. Claim under section 54B denied as the assessee would not put such land for agricultural purposes – Held that:- No material brought on record by the AO that the new land purchased for agricultural purposes is being actually put to use for any other purpose - only an apprehension on the part of the AO cannot be accepted to disallow the claim – Observation by AO that the assessee had ventured into a real estate business and therefore there was no possibility of the assessee undertaking agriculture on the new land purchased leads to no conclusion to disallow the claim - in favour of assessee.
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2012 (5) TMI 160
Interest free advances – Revenue contested that Tribunal held that funds available with the Assessee are much more than the amount invested in its subsidiary even though the sources of funds without considering secured loans are not sufficient for the application of funds - the Assessee does not have its own funds for making investment in the subsidiary or for advances and therefore borrowed funds have been utilized and interest on a pro rata basis has been rightly disallowed by the Assessing Officer – Held that:- The assessee has significant interest in the business of the subsidiary since both the assessee and the subsidiary are engaged in providing telecommunication services and utilizes even borrowed money for furthering its business connection, there is no reason or justification to make a dis allowance in respect of the deduction which is otherwise available under Section 36(1)(iii) - when the assessee advanced an amount to RIL for furthering the business of the assessee it in turn was to execute counter guarantees in favour of financial institutions for the benefit of the discharge of the EPCG obligations by the assessee – the findings of Tribunal are consistent with the judgment of the Supreme Court in S.A. Builders v. Commissioner of Income Tax (Appeals) (2006 -TMI - 2870 - SUPREME COURT OF INDIA)that if the business purpose is there while advancing money to the sister concern the dis allowance of interest cannot be sustained - against revenue.
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2012 (5) TMI 159
Income from house property - addition of ₹ 24,30,000/- on account of notional interest on interest free deposits and advance rent - Circular No. 204 dated 24.07.1976 - Held that: it is clear that if the Municipal valuation of the property is more than the rent received or receivable then the same should be taken for the purpose of valuation. However, if the rent received or receivable is more than the municipal value then the actual rent received or receivable will be taken as annual letting value of the property within the meaning of section 23(1) - ITAT Mumbai Bench in the case of Reclamation Realty India (P.) Ltd. (2010 (11) TMI 477 - ITAT, MUMBAI) - Decided in favor of the assessee
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2012 (5) TMI 158
Deduction u/s 80IA - ambiguity in the income tax act - infrastructure activities - Ownership of infrastructure itself - contractor or developer - held that:- the words 'developer' and 'contractor' have not been defined in or for the purposes of section 80-1A. - the very fact that the legislature mentioned the words (i) "developing" or (ii) "operating and maintaining" or (iii) "developing, operating and maintaining" clearly indicates that any enterprise which carried on any of these three activities would become eligible for deduction. Therefore, there is no ambiguity in the Income-Tax Act. Regarding ownership - held that:- according to sub-clause (a), clause (i) of sub section (4) of Section 80-IA the word "it" denotes the enterprise carrying on the business. The word "it" cannot be related to the infrastructure facility, particularly in view of the fact that infrastructure facility includes Rail system, Highway project, Water treatment system, Irrigation project, a Port, an Airport or an Inland port which cannot be owned by any one. Even otherwise, the word "it" is used to denote an enterprise. Therefore, there is no requirement that the assessee should have been the owner of the infrastructure facility. Developer or mere works contractor - held that:- it is clear that from an un-developed area, infrastructure is developed and handed over to the Government and as explained by the CBDT vide its Circular dated 18-05-2010, such activity is eligible for deduction under section 80IA(4) of the Act. This cannot be considered as a mere works contract but has to be considered as a development of infrastructure facility. Therefore, the assessee is a developer and not a works contractor as presumed by the Revenue. The case of Laxmi Civil Engineering (P.) squarely applicable to the issue under dispute which is in favour of the assessee wherein it was held that mere development of a infrastructure facility is an eligible activity for claiming deduction under section 80IA of the Act after considering the Judgement of the Mumbai High Court in the case of ABG Heavy Industries Ltd. (2010 -TMI - 75718 - BOMBAY HIGH COURT).
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Customs
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2012 (5) TMI 156
Ownership of imported goods - Requirement of Import licence while importing digital multifunction printing and copying machines - held that:- a person is unable to establish the ownership of the goods the respondent is vest with the power to reject the claim of the appellant and ultimately, correctly held that it is for the appellant to go before the authorities concerned after retracting confession and take all necessary steps to prove that he is the person holding out to be an importer and rightly stated if the appellant proves his ownership by retracting the statement before the authorities concerned, if he is able to establish his right as a person holding out to be an importer, he can go before the authorities concerned for assessing the consignment and release of his goods. It is needless to say, the burden is on the appellant to prove his ownership and release the goods as required by law.
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Corporate Laws
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2012 (5) TMI 155
Winding up of a company - appointment of liquidator - The appellant contested the winding up petition - guarantee declaration given by the appellant on behalf of the company under liquidation - authority through board resolution - held that:- The pleadings of the appellant Company are conspicuously silent as to why Mr. Ravi Chilukuri who has a substantial stake in the appellant Company and who from the documents filed by the respondent is the face/promoter of the appellant Company and/or of the Group of Companies to which the appellant Company belongs signed the Guarantee Declaration, Promissory Notes and as to how the Resolution aforesaid of the Board of Directors of the appellant Company landed with the respondent. Similarly though it is contended that comfort letter aforesaid issued by the Bankers of the appellant Company does not refer to the transaction in question but there is no explanation as to for which transaction it was obtained from the bank. - The appellant obviously had a stake in the Stock Purchase and Sale Agreement (supra), for the appellant Company to stand guarantee for the same. The world is a shrinking place today and commercial transactions spanning across borders abound. We have wondered whether we should be dissuaded for the reason of the transaction for which the appellant Company had stood surety/guarantee being between foreign companies. We are of the opinion that if we do so, we would be sending a wrong signal and dissuading foreign commercial entities from relying on the assurances/guarantees given by Indian companies and which would ultimately restrict the role of India in such international commercial transactions. As far as the argument of appellant Company of the purchasers under the aforesaid Stock Purchase and Sale Agreement being not before this Court and of denial of the knowledge of default, is concerned, certainly the appellant Company which had stood guarantee for the purchaser i.e. M/s Newco Prague s.r.o. would be in the know as to whether the purchaser has paid the price or not. If the purchaser was not in default, that would have been the first plea of the appellant Company against the petition for winding up. No such plea has been taken. On the contrary advantage is sought to be taken of technicalities and which cannot be permitted. As far as the argument of Stamp Act is concerned, the same is again only concerned with recovery of penalties and the documents even if unstamped can be read on penalty being paid. The same is thus no absolute bar to this Court acting on the basis of the said documents. It cannot be lost sight of that both the documents i.e. Guarantee Declaration as well as Promissory Notes were executed outside the country.
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FEMA
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2012 (5) TMI 157
Bogus exports - Fabricated Export - export under the DEPB Scheme - Violation of the provisions of Section 3(b) and Section 3(d) of the Foreign Exchange Management Act, 1999 (“the FEMA”) - Power of the settlement commission - held that:- the immunity is only from penalty under the Customs Act and not in respect of any other Act including the FEMA. - the orders of the Settlement Commission are considered to be conclusive of the matters stated therein and cannot be challenged in any other proceeding under any other law including FEMA. Rights of third parties - held that:- observations of the Tribunal cannot be construed as affecting the rights of any third parties who were not before the Court, since the Tribunal was and this Court is concerned only with the involvement of those who are parties to the appeal proceedings. Independently, the evidence against the Appellant is sufficient to sustain the finding of breach of Sections 3(b) and 3(d). The penalty is not disproportionate, but is commensurate with the gravity of the charge, the nature of the misconduct and the role attributed to the Appellant.
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Central Excise
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2012 (5) TMI 154
Adjustment of refund claim (rebate claim on export of goods) with demand stayed by the CESTAT - held that:- In the instant case, though the Tribunal was not even in session, by way of abundant caution, the petitioner has filed applications before the Tribunal seeking extension of stay already granted on 09.05.2011, which was due to expire on 09.11.2011, but, the said applications were not taken up due to non-availability of the Bench. Of course, on the expiry of stay, the respondent was empowered to act upon the impugned proceedings, but, at the same time, it was incumbent on his part to keep in mind the non-availability of the Tribunal and maintain status quo until further orders, but not to take advantage of the expiry of stay and no extension thereof, which were wholly due to non- availability of the quorum. The Tribunal shall decide the appeals on their own merits, untrammelled by any of the observations made in this order. It is needless to mention that until the appeals are taken up by the Tribunal, the interim stay, already granted by this Court on 25.11.2011, shall continue. Power of the courts in exceptional circumstances - held that:- The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances.
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CST, VAT & Sales Tax
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2012 (5) TMI 169
Irregularity in Form C under sales tax - Assessment under section 21(1) of the U.P. Trade Tax Act, 1948 (UPTT) - It was contended that unless the petitioner is supplied relevant materials, which is basis of the proceedings under Section 21(1) of the Act, no assessment can be made. - The notice categorised the allegations against the petitioner in eight categories and with regard to each Form-C details of allegations have been clearly mentioned. - the respondents shall rely on only those documents of which the petitioner has been made aware by filing earlier counter affidavit and in the event the respondents propose to rely on any other document, opportunity of inspection of the document or copy thereof be given to the petitioner. It goes without saying that while passing the final order, the question of limitation is to be gone into by the respondents as at this stage no direction is needed to decide the said question separately.
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