TMI Tax Updates - e-Newsletter
June 14, 2013
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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Income Tax:
Reassessment - notice u/s 148 - recording of satisfaction - The omission to state a jurisdictional fact cannot by any stretch of imagination be regarded as a typographical error. - HC
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Income Tax:
Minimum Alternate Tax (MAT) u/s 115JB - interpretation - reduction of exempted income u/s 80-IB from book profit u/s 115JB - not allowed - HC
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Income Tax:
Penalty u/s 271D - The loans were prior to the date of becoming a partner of the assessee-firm. - Both the lender and borrower are agriculturists - section 269SS is not appliable - HC
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Income Tax:
Since the credits appearing in the balance sheet did not relate to or were not availed in the previous year but was old balance of earlier years, no enquiry could have been validly undertaken by the AO regarding these credits. - HC
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Income Tax:
Addition - solely on basis of statement of any partner, addition made in assessment of assessee (firm) are liable to be set aside - SC
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Customs:
DFIA license - transferability - benefits of flexibility to import the alternative input/product mentioned in the SION - change of policy after issuance of licence will have no consequence - HC
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Customs:
Preventive detention - when a detention order does not meet the prescribed parameters and fails to comply with the procedural requirements, the order stands vitiated and has to be struck down. - HC
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Corporate Law:
Winding up petition - , it will be too harsh to order winding up of a running company, merely on the petition by trustee, filed without proper authorisation. - HC
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Service Tax:
Construction of residential complexes - Levy of ST on Advance received - the explanation inserted by Finance Act, 2010 cannot be have retrospective effect - AT
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2013 (6) TMI 314
Disallowance of expenditure - revised return was filed after expiry of the time permitted by Section 139 (5) - Held that:- Although there is a judgment of CIT Tax Vs. M/s. Pruthvi Brokers & Shareholders Pvt. Ltd. [2012 (7) TMI 158 - BOMBAY HIGH COURT] in favour of assessee, but looking to the tax effect involved in this effect i.e. less than of Rs.10,000/- as the total disallowance was of Rs.4540+24,321 this issue is to be kept open for consideration at appropriate stage in appropriate proceedings. The finding of the Tribunal in this regard is maintained as tax effect in this regard is less than Rs. 10,000/-. Admissibility to carry forward of losses and to recompute the deduction under Section 80HHC (1A) - Held that:- This question has already been examined and answered by IPCA Laboratory Ltd. vs. DCIT [2004 (3) TMI 9 - SUPREME Court] wherein the judgment of CIT Versus Shirke Construction Equipments Ltd. [2000 (7) TMI 40 - BOMBAY High Court] in favour of revenue.
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2013 (6) TMI 313
Commission expenses - genuineness of transactions and reasonableness of payments - held that:- the entire issue is based on appreciation of relevant evidence on record. In terms of such evidence concurrently, the CIT(A) as well as the Tribunal held that payment of commission was not only genuine but also in terms of the agreement between the parties. - deduction allowed - decided in favor of assessee. Addition on account of writing back of loan liability - remission of liability - held that:- Tribunal finds support from the decision of this Court in case of Chetan Chemicals (P.) Ltd. (2001 (10) TMI 12 - GUJARAT High Court ) - revenue, however, placed reliance on the decision of Delhi High Court in case of Rollatainers Ltd. v. CIT [2011 (8) TMI 447 - DELHI HIGH COURT] where, the distinction is drawn for cessation of liability on the basis whether the loan was a trading liability or a capital liability. - when the Assessing Officer did not pursue this line and brought no evidence on record to make a discussion as is sought to be legally canvassed before us, at this stage, we cannot find fault with the view of the Tribunal. - decided against the revenue. Interest income of FDRs - taxability - held that:- Since this income was already offered by the assessee, no further addition is required to be made. - Decided against the revenue.
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2013 (6) TMI 312
Reassessment - validity of notice issued u/s 148 - recording of satisfaction - held that:- the entire approach of the Assessing Officer is throughly misconceived. The Assessing Officer has ignored the binding precedents on the subject to which his attention was drawn. All that the Assessing Officer has stated is that the form of the notice under section 148 which is prescribed by the CBDT does not contain any provision to the effect that the assessee has failed to disclose fully and truly all material facts necessary for the assessment. This is a clear dereliction on the part of the Assessing Officer to follow the mandatory requirements of the proviso to section 147. Again the Assessing Officer sought to explain away her failure to record a satisfaction of the requirement of the proviso to section 147 by stating that this was a typographical error. The omission to state a jurisdictional fact cannot by any stretch of imagination be regarded as a typographical error. Assessing Officer has in purporting to re-open the assessment acted in clear breach of the mandate of the law and of the jurisdictional condition prescribed by the proviso to section 147. - Decided in favor of assessee.
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2013 (6) TMI 311
Bad debts - provisions of section 36(1)(vii) and section 36(2)(i) - onus to prove - held that:- under section 36(1)(vii) of the Income-tax Act it was not necessary for the assessee to give reasons and writing off the amount itself was sufficient. - In view of the settled position in the case of T.R.F. Ltd. [2010] 323 ITR 397] the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal have rightly set aside the addition made by the Assessing Officer in so far as it relates to the bad debt claimed by the assessee - Decided in favor of assessee. Loss on account of rejection of goods - held that:- Goods which were unfit for human consumption in Ukraine will remain unfit for human consumption in India also. - claim of deduction allowed - Decided in favor of assessee.
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2013 (6) TMI 310
Minimum Alternate Tax (MAT) u/s 115JB - interpretation - reduction of exempted income u/s 80-IB from book profit u/s 115JB - held that:- Section 115JB is in the nature of a special provision, a charging provision, and creating liability in respect of an assessee which is a company and whose taxes as determined on the returns filed in the normal manner falls short of the stipulated amount and a charge is created for making the difference, i.e., the object of the legislation is to ensure a minimum tax of seven and half per cent. on the book profit as ascertained under section 115JB is levied and collected from the companies whose payment of tax always without the application of this provision falls short of this amount of tax. There is no scope for interpretation in the present situation, as the provision of the statute should be given effect to, as it occurs and if there is only any ambiguity in understanding the statute then only the tool of interpretation should be called in aid. We do not find any competing or derogatory provision in section 115JB vis-a-vis section 80-IB of the Act is concerned. Section 80-IB operates in a particular sphere and section 115JB is operative in a totally different sphere. It is not the case of the appellant-assessee that section 80-IB is not operated or given effect to. While this is not in any way denied to an assessee, section 115JB is a special charging section for regulating tax liability of companies in general and made applicable in particular and is confined to the assessee-companies whose tax liability, when computed in the normal manner falls short of the liability as computed under this provision. Therefore, we are of the view that there is absolutely no question of section 80-IB having any bearing or effect or control over the provisions of section 115JB of the Act. A budgetary speech while will have some significance for understanding a provision if there is any ambiguity, in the wake of clear language of section 115JB, in the first instance there is no ambiguity, in the second instance, the ambiguity sought to be introduced on certain premise which is not apparent and is only on a limited reading of the budget speech, at any rate a budget speech in itself cannot regulate or control the statutory provision, more so a charging section in a revenue yielding statute, we are of the clear opinion that the provisions of section 115JB should be given full effect to without being influenced or guided or regulated by the budget speech of the Finance Minister. If the argument of Sri Shankar, learned counsel for the appellant, is to be accepted, then it will result in a discrimination against such assessee-companies who have to pay tax under section 115JB of the Act, but have no concession available under section 80-IB, whereas the tax liability of the person under section 115JB of the Act, who can claim concession under section 80-IB of the Act gets reduced for the purpose of section 115JB of the Act. It is, therefore, to avoid section 115JB being rendered discriminatory and unconstitutional being violative of article 14 of the Constitution of India, the contention of Sri Shankar for reading down or reading up the provisions of section 115JB of the Act, particularly by adding to different situations mentioned in the Explanation, to be expanded by including reference to section 80-IB of the Act cannot be accepted. A statutory provision cannot be so read down to render it unconstitutional, but reading down a statutory provision is to make it constitutional and not otherwise. - Decided against the assessee.
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2013 (6) TMI 309
Penalty u/s 271D - contravention of section 269SS - leniency provided in the 2nd proviso to Section 269SS - agriculturists - held that:- A perusal to second proviso to Section 269SS of the Act shows that where the person from whom the loan or deposit is taken or accepted and the person by whom the loan or deposit is taken or accepted are both having agricultural income and neither of them has any income chargeable under the Act, then the provisions of Section 269SS of the Act are not applicable. As a corollary it would follow that where Section 269SS of the Act is not applicable, the penalty under Section 271D of the Act could not be levied. The loans which were considered by the lower authorities, in the light of provisions of section 269SS read with section 271D of the Act, were prior to the date of becoming a partner of the assessee-firm. - Both the lender and borrower are agriculturists and did not have any income chargeable to tax - no penalty - decided in favor of assessee.
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2013 (6) TMI 308
Addition u/s 69 - unexplained investment in lottery tickets - addition on account of incentive income - Held that:- Tribunal had relied upon the findings in the report of auditors which was found to be in accordance with the provisions of the Act. It was further observed that during the course of search, no material was found indicating any payment in cash outside the books of account regarding the purchase of lottery tickets. - no addition - decided in favor of assessee. Regarding incentive income - Held that:- There is no material on record to establish that assessee was either the organizer or stockiest of any lottery. Further, there is nothing on record to indicate that assessee had any dealing with I.C. Khurana. In the absence of such material, it is not understandable as to how the AO could infer that assessee earned incentives @ 1% of total turnover. AO has also not brought any material to suggest that assessee ever received any incentive from the persons with whom assessee had any dealings. - Decided in favor of assessee.
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2013 (6) TMI 307
Stay - recovery - held that:- the bank accounts of the petitioner have been attached - it appropriate to direct the second respondent to dispose of the appeal, filed by the petitioner, on merits and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order.
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2013 (6) TMI 306
Revision u/s 263 - change of opinion or not - trading additions - held that:- The concept of ‘prejudicial to the interest of revenue’ has to be correctly and soundly understood. It precisely means an order which has not been passed in consonance with the principles of law and which has in ultimate eventuate affected realization of lawful revenue. These two basic ingredients have to be satisfied as sine qua non for exercise of such power. We are in complete agreement with the finding of the Tribunal that since the credits appearing in the balance sheet of respondent did not relate to or were not availed in the previous year but was old balance of earlier years, no enquiry could have been validly undertaken by the AO regarding these credits. Further, with regard to the question of disallowance to be made under section 40A(2)(b) the Tribunal has held that CIT has not given any definite finding of error on this point in the order of AO and for this reason the order of AO also could not have been set aside under section 263 of the Act. - Decided against the revenue and in favor of assessee.
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2013 (6) TMI 305
Appeal against the decision of high court [2007 (7) TMI 182 - MADRAS HIGH COURT] dismissed by the Apex Court wherein it was held that, solely on basis of statement of any partner, addition made in assessment of assessee(firm) are liable to be set aside
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2013 (6) TMI 304
Service of notice u/s 148 - Review of the order by which the Special Leave Petition filed by the petitioner was dismissed [2013 (6) TMI 232 - Supreme Court] - Held that:- No error in the order impugned, much less an error apparent on the face of the record so as to call for its review. Thus review petition having no merit and hence dismissed.
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Customs
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2013 (6) TMI 303
DFIA license - Validity of license - transferability - whether license on the date of its issue shall govern the import of goods? - Held that:- It is not in dispute that the original licence was issued on 15.4.2010 and its validity is for a period of two years ending 14.4.2012. The transferability endorsement was made on 6.12.2010. Therefore, the license is valid till 30.4.2012 for shipments or imports made under the said license, in terms of paragraph 9.11A read with paragraphs 2.12.1 and 2.12.2 of the Handbook of Procedures, 2009-2014 . Hence, the contention of the department that the imports are not covered by a valid license cannot be countenanced. It is also not in dispute that the Bill of Lading in this case was issued on 14.4.2012 and In-bond Bill of Entry was filed on 30.4.2012. Therefore, the license covers the import and there cannot be any dispute on its validity in relation to the import. Applicability of Public Notice dated 23.7.2010, the Clarification dated 23.9.2010 and the Policy Circular dated 31.1.2011 - Held that:- The above may not apply to a valid license, the transferability of which is endorsed. It is to be noticed that the clarification issued by the Ministry of Commerce dated 31.7.2008 and the DGFT Policy Circular dated 24.3.2009, which were in force prior to issuance of license in question dated 15.4.2010, will be made applicable to the license, as it extends the benefits of flexibility to import the alternative input/product mentioned in the SION and that appears to be the main tenor of the petitioner's plea seeking release of the Lactose stating that the clarification and the circular which were in force at the time of issuance of license will be applicable to the goods imported and not the subsequent clarifications is no doubt justified in view of the decision of S.B. International Ltd. case [1996 (1) TMI 125 - SUPREME COURT OF INDIA] wherein been held in categoric terms that the norms that are applicable on the date on which the license is issued will be valid in respect of goods imported under the said license. Since the license in this case was issued on 15.4.2010 and on the date on which the license was issued the clarification dated 31.7.2008 and the DGFT Policy Circular dated 24.3.2009 were in force, the license would get the benefit of the said clarification and the DGFT Policy Circular. Subsequent change in policy by way of Public Notice No.84/2009-14, dated 23.7.2010, clarification dated 23.9.2010 and the Policy Circular No.13, dated 31.1.2011 will have no consequence in respect of the license that has already been issued. Accordingly, the said issue is decided in favour of the petitioner. Validity of the import - as questioned by revenue on the ground that the In-bond Sales invoice is dated 4.8.2012 and therefore the import is not valid - Held that:- Unable to accept such a plea in view of the specific provision contained in paragraph 9.11A read with paragraphs 2.12.1 and 2.12.2 of the Handbook of Procedures, 2009-2014, referred to above. Therefore, the Bill of Lading issued on 14.4.2012 coupled with the In-Bond Bill of Entry 4.8.2012 will cover the import in question in terms of the above paragraphs of the Handbook of Procedures, 2009-2014 and the endorsement made by the Assessing Authority refusing to grant clearance of the goods is bad.
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2013 (6) TMI 302
Preventive detention orders in the case of Rohit Sakhuja and Ajit Singh Chadha @ Romy - detention vide order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - whether there was an imminent possibility that Rohit Sakhuja and Ajit Singh Chadha would be released on bail, though they were in judicial custody in the criminal case(s) pending against them? - Held that:- The detention orders cannot be sustained as there is a clear lapse and failure on part of the Detaining Authority to examine and consider the pertinent question relating to imminently possibility of the detenu being granted bail in the criminal cases in which they were detained while passing the detention orders. As decided in Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., (1986 (9) TMI 387 - SUPREME COURT) if a detenu is in police or judicial custody and there is no imminent possibility of his release, the rule is that the power of preventive detention should not be exercised. However, when there is imminent possibility that the person in custody may be released, power of preventive detention can be exercised. As decided in REKHA VERSUS STATE OF T. NADU TR. SEC. TO GOVT. & ANR (2013 (2) TMI 189 - SUPREME COURT OF INDIA) when an order under preventive detention law is under challenge before a court, there are limited grounds or reasons on which it can be invalidated or struck down. The procedural requirements are only safeguards available to the detenu since the court is not expected to go into the subjective satisfaction of the detaining authority. Procedural requirements, as per judicial pronouncements, have to be strictly complied with. Preventive detention is an extreme step which is required and may be justified, but when a detention order does not meet the prescribed parameters and fails to comply with the procedural requirements, the order stands vitiated and has to be struck down. Thus the impugned detention orders are quashed and set aside, however, this order will not affect the criminal cases and various FIRs which are pending against Rohit Sakhuja and Ajit Singh Chadha.
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Corporate Laws
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2013 (6) TMI 301
Winding up petition - respondent company's inability to discharge admitted liability - respondent company, is indebted to the petitioner for and on behalf of the Bondholders for a sum of USD.64,036,036.29 under the Bonds along with accrued interest and default interest - petitioner has filed this petition in its capacity as a trustee on behalf of the Bondholders - Held that:- This company petition deserves to fail as admittedly, in the present case, under the trust deed authorised the petitioner can maintain the petition for recovery only if 25% of the bondholders authorised the filing of a petition. Inspite of preliminary objection, the petitioner failed to place on record authorisation by the 25% of the bondholders to maintain the present petition. The filing of memo after judgment reserved, is not permissible, as no permission was sought from the court to place additional document or record. The judgment in K.T.S.(Singapore) Plc. Ltd. vs. Associated Forest Products (Pvt.) Ltd. (1993 (1) TMI 243 - HIGH COURT OF CALCUTTA) also cannot advance the case of the petitioner, as the dispute in that case was not the one which raised in this petition. The question to be determined in this case is as to whether the petition as framed is competent or not. Thus as noticed that it is now well settled law that winding up is not legitimate means to enforce the recovery by pressurizing the company to enter into a settlement. The fact that the respondent is a running company is not controverted nor it is controverted that there is financial crunch on account of non receipt of dues form the customers. That being the case, it will be too harsh to order winding up of a running company, merely on the petition by trustee, filed without proper authorisation. Consequently, finding no merit, the company petition is ordered to be dismissed. The petitioner shall however be at liberty to enforce their rights in accordance with law to recover the amount due to bondholders, in terms of Trust deed.
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Service Tax
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2013 (6) TMI 318
Benefit of abatement of 67% denied - Service tax demanded under the category of "commercial or industrial construction services and construction of residential complex services" - writ petition against the order of the learned Single Judge [2013 (3) TMI 294 - MADRAS HIGH COURT] - Held that:- it is evident that no one appeared for the appellant on the date of hearing and the authority has proceeded with the matter and passed the order, that too without giving sufficient reasons regarding pre-deposit of 50% for hearing the appeal on merits. Since the appellant is making grievance about non compliance of the principle of natural justice, we are of the view that the writ appeal may be disposed of by fixing the date of hearing of the representative of appellant on 26.4.2013 and on the said date, the concerned respondent is directed to hear the representative of the appellant and pass orders on merits.
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2013 (6) TMI 317
Levy of ST on sale of SIM Cards of BSNL - extended period of limitation - held that:- activity of purchase and sale of SIM card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for. - Demand set aside - Decided in favor of assessee.
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2013 (6) TMI 316
Export of services - Business auxiliary service - Stay - assessee is getting their commission in foreign exchange for the service rendered for promotion of the products - Held that:- Board vide circular dated 24-2-2009 clarified that for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. - the applicants are able to make out a prima facie case for total waiver of pre-deposit of Service Tax and other dues adjudged and requirement of pre deposit of dues is waived and recovery thereof is stayed during pendency of the appeal.
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2013 (6) TMI 315
Construction of residential complexes - Levy of ST on Advance received - Section 65(105)(zzzh) of Finance Act, 1994 read with Section 65(30a) - held that:- the decision of Punjab & Haryana High Court in the case of G.S. Promoters [2010 (12) TMI 34 - PUNJAB AND HARYANA HIGH COURT] was about constitutional validity of the explanation added by Finance Act, 2010. That decision did not examine Service Tax liability for the period prior to the date on which the explanation was added. The Tribunal has taken a view in CCE, Chandigarh v. M/s Skynet Builders, Developers, Colonizer and Others [2012 (4) TMI 427 - CESTAT, NEW DELHI]. and other appeals that the explanation cannot be have retrospective effect and that in view of the various clarifications issued by C.B.E. & C. during the relevant time no Service Tax liability can be imposed on the respondent for this type of activity. - Decided in favor of assessee.
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Central Excise
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2013 (6) TMI 300
Higher quantity of goods found by investigation - Shri Bhaskar Gupta who was son of a Partner being present during investigation & the team made inventory of the goods and recorded his statement - Held that:- Appellant is correct to say that the evidence of a third party should not be used against the appellant. Because adjudication record has failed to establish how the third person has interest in the business, Commissioner (Appeals) should have applied his mind to test the veracity of evidence gathered in the course of investigation. He failed to do so except simply confirming the adjudication. As the appellant has been denied justice matter requires remand to grant fair opportunity to the appellant to establish the truth of the case. At the first stage he should test whether the evidence of Shri Bhaskar Gupta is reliable and if so, in what manner in the eyes of law & also examine entire record relating to HR Coils/Strips since allegation of investigation is that there was higher quantity of 25.73 Kgs of such goods valued at Rs.7,56,462.00 was found by investigation. The appellant shall have fair opportunity to defend its case on the basis of evidence.
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2013 (6) TMI 299
Cenvat credit of duty paid on iron and steel items - denial of claim on finding that same stand used as supporting structurals and in terms of the declaration of law in the case of Vandana Global Ltd (2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)) - Held that:- As the appellant submits that the said items were used as supporting structurals only in some of the cases involving duty around Rs.45,000/- & the rest was used for fabrication of capital goods for which they are entitled to avail the credit & also placed reliance on Chartered Engineer certificate which was not produced before the authorities below and the said certificate relates to the requisite items reflecting upon the use of iron in fabrication of a particular product. Thus it is a fit case to dispense with the condition of pre-deposit of duty and set aside the impugned order and remand the same to the original adjudicating authority for verification of the factual position.
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2013 (6) TMI 298
Processed and woolen fabrics of wool come into existence during the course of manufacture of blanket - benefit of captive consumption Notification No. 67/95 denied - duty demand alonwith penalty of identical amount - assessee contested against invoking of extended period of limitation - Held that:- The revenue has not shown any malafide suppression or mis-statement on the part of the assessee. Further, revenue is also expected to know that in a unit manufacturing blanket, the blanketing in running length would invariable come into existence. As such in the absence of any evidence to reflect upon the appellant’s malafide intention, demand confirmed by invoking the longer period of limitation is unsustainable - in favour of assessee.
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2013 (6) TMI 297
Payment of duty from cenvat credit - whether the appellant was required to discharge the duty liability from PLA only - Appellants are only disputing the penalty as the duty amount already stands paid from PLA - Held that:- As relying on case of Harish Silk Industries [2013 (6) TMI 83 - GUJARAT HIGH COURT] only penalty under Rule 27 of the Central Excise Rules, 2002 will be imposable in each case of default and the penalty imposed under Rule 25 of the Rules is required to be set-aside.
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2013 (6) TMI 296
Condonation of delay - Held that:- As from the appellant’s correspondence with the department it is clear that there was a factual mistake regarding the date of hearing in the order passed by the Deputy Commissioner, as while the date of order was 30th March 2012, the date of hearing as recorded in the order was 11/4/12. It is only after pointing out of discrepancy by the appellant that the department issued a corrigendum correcting the date of hearing as 11/3/12 in para 15 of the order. The appellant filed appeal before the Commissioner (Appeals) only after the issue of the corrigendum dated 14th May 2012. Therefore, the reason for 16 day’s delay in filing of the appeal is genuine and the same being within 30 days should have been condoned by the Commissioner (Appeals). Thus the Commissioner (Appeals) order refusing condoning the delay is not correct.
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CST, VAT & Sales Tax
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2013 (6) TMI 319
Concession rate of tax - denial of claim on the ground that there was no contract for the supply of steel structure between the U.P. Power Corporation Ltd. and the assessee - Held that:- As on the face of the agreement and the amendment carried out therein which is not in dispute the assessee was authorized to supply the fabricated and galvanized steel structures to the U.P. Power Corporation Ltd. Accordingly, supplies were made and Forms III-D were issued by the U.P. Power Corporation Ltd. covering the supply so made by the assessee. In view of the above provision, the turnover of sale to any Corporation including the U.P. Power Corporation Ltd. is taxable at a concessional rate specified by the State Government provided the transaction is covered by the prescribed form/declaration which under Rule 12-C of the Rules framed under the Act is Form III-D. Both the conditions for availing the benefit of concessional rate of tax on the sale made to the Corporation, namely, the sale is made to the Government, Corporation, Undertaking or Company and secondly dealer furnishes a certificate or declaration as may be prescribed from such Government, Corporation, Undertaking or the Company compiled. In favour of assessee.
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