TMI Tax Updates - e-Newsletter
August 1, 2016
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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Income Tax:
Additions on the basis of statement recorded u/s 131 - the assessee was not allowed to crossexamine the person, on the basis of whose statement the proceedings was initiated. - Additions were rightly deleted - HC
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Income Tax:
MAT - computation of the book profit under explanation to section 115JA - the question of increasing the net profit by the amount of lease equalization charge would not arise, the same being not in the nature of a reserve. - HC
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Income Tax:
CBDT extends the date for filing income tax return for Assessment Year 2016- 2017 from July 31st to August 5th, 2016
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Customs:
Valuation - loading of value at the rate of 2% on the CIF value to arrive at the assessable value of imported goods purchase by the appellant on High Seas Sale basis from their group company - Commissioner (Appeals) has loaded 2% only on the basis of his opinion and not on any evidence - Demand set aside - AT
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Indian Laws:
Violation of copyright - “infringing products” designs - the products i.e. food grade plastic storage containers known as Tupperware registered as trade mark in the name of plaintiff - the distinctiveness of the shape of the product- asserted to be unique or solely associated with the plaintiff has not been so pleaded and established. - petition dismissed - HC
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Indian Laws:
Running coaching classing by chartered accountant while using the prefix as 'CA' - The issuance of advertisements offering to take coaching classes and to impart of training to aspirants of the profession of chartered accountancy, cannot be said to be carrying on the profession of chartered accountancy - HC
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Service Tax:
Export of services or not - place of performance is in India - The destination has to be decided on the basis of place of consumption, not the place of performance of service in case of Business Auxiliary Service - AT
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Service Tax:
Refund of un-utilized Cenvat Credit - 100% EOU - appellant is exporting entire taxable services in terms of Export of Service Rules 2005 - two different yardstick, one for permitting credit and the other for eligibility for granting rebate cannot be followed - AT
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Central Excise:
Excise duty on malt extract - whether the malt extract, which arises during the course of manufacturing of Indian Made Foreign Liquor (IMFL), is liable to pay the duty as it is an excisable commodity - Held No - AT
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Central Excise:
Procurement of inputs without payment of duty - export of exempted goods - when such Annexure 1 certificate continued to be live and are not cancelled or declared void by department after following due procedure. The clearances effected on the strength of such annexure by the appellant cannot be denied the benefit of exemption provided by notification 43/2001 CE (NT) dated 26.06.2001. - AT
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Central Excise:
Determination of price for the purpose of reversal of Cenvat Credit - whether price is inclusive of 10% amount or not - demand of 10% of the price of exempted final products - Difference of opinion - larger bench to decide the issue - AT
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Central Excise:
Cenvat Credit - rejection of CENVAT Credit based on non registration of input service distributor - receipt of input services at head office - credit allowed - AT
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Central Excise:
Cenvat Credit - input services - GTA services - outward transportation beyond the place of removal appeared - let the matter be decided by competent authority - HC
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VAT:
Issuance of duplicate and forged ST-35 forms and C-Form - mere irregularity was not sufficient to hold the accused No.2 and 3 guilty for the offence punishable under Section 420/34 IPC. - HC
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VAT:
Denial of input tax credit - Validity of assessment order - demand based on defects pointed out by the Enforcement Wing - A report from the Enforcement Wing may be a starting point for issuance of a notice but AO has to apply his mind independently - HC
Articles
Notifications
Central Excise-
G.S.R. 749(E) - dated
29-7-2016
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CE
Corrigendum - Notification No. 26/2016-CE, dated the 26th July, 2016
Companies Law-
S.O. 2554(E) - dated
27-7-2016
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Co. Law
Special Court under section 435 of the Companies Act, 2013
Customs-
104/2016 - dated
29-7-2016
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver
Income Tax-
63/2016 - dated
26-7-2016
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IT
Section 10(46) of the Income-tax Act, 1961 – Central Government notifies “Kerala Headload Workers Welfare Board, a body constituted by Government of Kerala in respect of the following specified income arising to that Board
SEZ-
S.O. 2560 (E) - dated
28-7-2016
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SEZ
Rescinding of a sector specific Special Economic Zone at Village Bhadreshwar, Taluka Mundra, District Kutch, in the State of Gujarat
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2016 (7) TMI 1214
Levy of interest under Section 158BFA - Block assessment - Held that:- We are unable to accept the contention of the appellant that levy of interest can be adjusted from the seized amount which was lying in the P.D.Account in the absence of any provision to grant such claim. - Decided against the assessee.
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2016 (7) TMI 1213
Validity of order of tribunal remanding the matter back to AO - undisclosed income for the block period 01.04.1986 to 30.08.1996 - Held that:- a mere order of remand does not raise a question of law much less a substantial question of law. We will assume that to be correct. However, when an order of remand is made with a direction or an order specifying the manner in which or the principles upon which the order ought to be passed, it is not a simplicitor order of remand. If a question of law arises out of the direction issued, a question of law and even a substantial question of law can always arise from and on account of the direction issued by the appellate authority. For instance, when the appellate authority decides a question of law and remands the matter to the lower authority whether it is the Assessing Officer or the CIT (Appeals) with a direction to decide the matter afresh in accordance with the judgment and it is found that the direction raises a substantial question of law, can always be the subject matter of an appeal under Section 260-A. Remand order upheld - Decided against the revenue.
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2016 (7) TMI 1212
Additions on the basis of statement recorded u/s 131 - Tribunal deleted the additions - AO has rejected the retracted statement of the assessee with a reasoning that the same has been furnished after two months and the statement was recorded in the presence of assessee's Advocate and also the fact that the detailed breakup submitted by the assessee with respect to earning of income cannot be put into the mouth of the assessee and thereby additions were made. Held that:- the assessee was not allowed to crossexamine the person, on the basis of whose statement the proceedings was initiated. When the assessee has asked for their crossexamination, the crossexamination of Shri Subhash Pandey was not given to the assessee, although the statement of the assessee was recored in consequence of the statement of Shri Subhash Pandey recorded on 1.1.96 u/s. 131. The statements of Shri Suresh A Patel and Shri Kashyap Thakore nowhere state the name of the assessee. Thus the Revenue has not brought any evidence. The onus, in our opinion, is on the Revenue to prove that the assessee has earned the income. It gets shifted on the assessee once the assessee claims the exemption of income. Additions were rightly deleted - Decided against the revenue.
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2016 (7) TMI 1211
Claim of deduction u/s 80IA in the reassessment u/s 153A as there was no incriminating document found during the search - The assessee contested such claim mainly on the ground that no incriminating material was found during the search which would enable the Assessing Officer to reexamine assessee's claim for deduction under section 80IA, which was part of the original assessment proceedings and such assessments had abated. The Tribunal upheld the assessee's contention referring to the decision of Bombay High Court in case of Continental Warehousing Corporation (Nhava Sheva) Ltd., [2015 (5) TMI 656 - BOMBAY HIGH COURT] - Held that:- this Court in case of Pr. Commissioner of Incometax4 v. Saumya Construction Pvt. Ltd. [2016 (7) TMI 911 - GUJARAT HIGH COURT], had also considered the similar issue. Decision of tribunal upheld - Decided against the Revenue.
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2016 (7) TMI 1210
MAT - computation of the book profit under explanation to section 115JA - addition made on account of lease equalization charges - in the nature of reserve or not - Held that:- The lease equalization fund is not in the nature of a reserve - the lease equalization charge would not fall within the ambit of clause (b) of the Explanation to sub-section (2) of section 115JA of the Act. Under the circumstances, while computing the book profit under section 115JA of the Act, the question of increasing the net profit by the amount of lease equalization charge would not arise, the same being not in the nature of a reserve. - Decided against the revenue.
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Customs
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2016 (7) TMI 1197
Valuation - loading of value at the rate of 2% on the CIF value to arrive at the assessable value of imported goods purchase by the appellant on High Seas Sale basis from their group company - Held that:- t though there is a guideline in the Public Notice No. 145/2002 dt. 3.12.2002 for adding the High Sea Sales service charges at the rate of 2% but in the present case there is a legal contract between the appellant and the High Sea Seller for addition of ₹ 500/- towards High Seas Sales Commission. We find that neither the adjudicating authority nor the Ld. Commissioner (Appeals) have given any concrete evidence that why the actual High Seas Sales Commission of ₹ 500/- is not correct. We are of the view that the 2% service charges can only be added if there is no basis of actual high seas sales commission/service charges. In the present case, there are sufficient materials to support the high seas sales commission of ₹ 500/- added by the appellant in the invoice value. Commissioner (Appeals) has loaded 2% only on the basis of his opinion and not on any evidence - Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 1196
Refund of SAD - rejection of the refund on the ground that importer failed to comply with the requirements in terms of Notification No. 102/2007- Cus dated 14.09.2007. - Held that:- there cannot be any dispute that the subject goods on their subsequent sale in the local market suffered local taxes namely VAT/CST. Therefore Special Additional duty of Customs (SAD) which was charged during the importation of the said goods cannot be held back by the Revenue. The quantum of SAD charged for this import goods has to be refunded to the appellant in terms of the provisions of Notification No. 102/2007 Cus dated 14.09.2007. The Revenue s objection that the appellant has not complied with mandatory condition of endorsement on the sale invoices that SAD is not available as credit cannot become a bar for sanctioning the refund to the appellant in this case when the facts and documents on record otherwise conclusively prove that goods were sold on commercial invoices where-under credit cannot be made available to the buyer(s) and it has also been established that on these goods local sales tax/additional CST has been paid during their sale in local market. - Refund allowed - Decided in favor of assessee.
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Corporate Laws
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2016 (7) TMI 1191
Winding up petition - Respondent Company is unable to pay debts - Held that:- As carefully gone through the deal confirmation annexed at Exh.'K' to the Petition as well as Exh.'F' to the affidavit in rejoinder dated 24 March, 2014. Both the aforesaid documents are one and the same deal confirmation and are identical in its terms. The only difference between the two is that the duplicate of this deal confirmation has been signed by the Respondent – Company (through its authorised signatories) whereas the stamped deal confirmation is unsigned by the Respondent Company. Reading these two documents together, find absolutely no merit in the submission of Mr Cama that there is any variance between the two documents. In any event, this defence is taken for the first time in this Company Petition and was never raised by the Respondent Company at the time when it disputed its liability on the expiry of the relevant options under the Deal Confirmation dated 26 June, 2008. Therefore find that this defence is neither in good faith nor bonafide which would persuade me to dismiss this Company Petition on this ground. If in fact, it was the case of the Respondent Company that it was not a signatory to the Deal Confirmation which in turn did not give rise to any liability, such a fundamental defence would have been taken up by the Respondent Company at the very first instance and would not find place for the first time only in the affidavit in reply filed to contest the contentions raised by the petitioner Bank. This being the position, unhesitatingly reject this argument. For all the aforesaid reasons, find that there is no bonafide defence that has been raised by the Respondent Company. The liability incurred by the Respondent Company to the Petitioner – Bank is on the basis of a written contract (the Deal Confirmation) entered into between them which the Respondent Company has, without sufficient cause, failed to honour. The liabilities are far in excess of an amount of ₹ 500/- as contemplated under section 434(1)(a) of the Companies Act, 1956. This, to my mind, would entitle the Petitioner to seek an order of admission of this Company Petition. In these circumstances, the following order is passed :- (i) The Company Petition is admitted and made returnable on 3rd October, 2016. (ii) The admission of this Company Petition shall be advertised in two local newspapers viz. (i) Free Press Journal (in English) and (ii) Navshaktti (in Marathi) as also in (iii) Maharashttra Governmentt Gazetttte. Any delay in publication of the advertisement in the Maharashtra Government Gazette and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. (iii) The Petitioner shall, on or before 27th August, 2016 deposit a sum of ₹ 10,000/- towards publication charges with the Prothonotary and Sr. Master of this Court, under intimation to the Company Registrar, failing which the Petition shall stand dismissed for non-prosecution without further reference to the Court. After the advertisements are issued, the balance, if any, shall be refunded to the Petitioner.
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Service Tax
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2016 (7) TMI 1209
Export of services or not - place of performance is in India - Business Auxiliary Service (BAS) and Business Support Service - services were provided to foreign customers - manpower recruitment or supply agency service - Held that:- when the person on whose instructions the services, in question, has been provided and is located abroad, the destination of services, in question, has to be treated abroad. The destination has to be decided on the basis of place of consumption, not the place of performance of service in case of Business Auxiliary Service - the impugned order regarding service tax liability of the appellant on these services is not legally sustainable. Regarding manpower recruitment and supply agency service - deputation of employees - Held that:- The reimbursement amount paid by the appellant to the foreign companies is relating to the cost of salaries and wages of the employees working under the appellant. In CCE vs. Computer Sciences Corporation India Pvt. Ltd.(2014 (11) TMI 125 - ALLAHABAD HIGH COURT) the Tribunal held that for tax purposes the service provided must be by a manpower recruitment agency and such a service has to be in relation to supply of manpower. In CCE vs. Arvind Mills Ltd. (2014 (4) TMI 132 - GUJARAT HIGH COURT), the Hon’ble Gujarat High Court held that deputation of employees from one company to another does not involve profit or finance benefit there is no relationship of agency and client involved in such deputation. In Volkswagen India Pvt. Ltd. vs. CCE (2013 (11) TMI 298 - CESTAT MUMBAI) the Tribunal held when the global employees working under the Indian company are working as their employees and having employee employer relationship there is no supply of manpower service and no tax liability arises. Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 1208
Cenvat Credit of service tax paid under reverse charge method - import of business auxiliary services from group compaines abroad and GTA services - the service tax was paid by the appellant through e-payments by the head office - debit notes - duty paying documents - Held that:- debit notes and e-payment challans are valid documents for claiming CENVAT credit on input services as per Sub-rule (1)(e) of Rule 9 which clearly specifies that CENVAT credit can be availed on challan evidencing payment of service tax by the service recipient as a person liable to pay service tax. Regarding GTA services, appellant failed to produce documents showing how much of it was for inward transportation of inputs and how much for outward transportation of finished products. The appellants have rightly taken CENVAT credit of ₹ 12,19,140/- on the basis of debit notes and ₹ 4,24,878/- on the basis of e-payment challans and disallow CENVAT credit taken on GTA services of ₹ 87,132/- The question of penalty does not arise as the appellants have not concealed any material facts from the Respondent. - Decided partly in favor of assessee.
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2016 (7) TMI 1207
Refund of un-utilized Cenvat Credit - 100% EOU - appellant is exporting entire taxable services in terms of Export of Service Rules 2005 - two different yardstick, one for permitting credit and the other for eligibility for granting rebate - Held that:- the impugned order is not sustainable in law in view of the fact that all the services for which CENVAT credit of service tax has been denied are in fact input services and the appellant is entitled to get refund of CENVAT credit lying unutilised in the CENVAT credit account - Refund allowed - Decided in favor of assessee.
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Central Excise
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2016 (7) TMI 1206
Cenvat Credit - input services - GTA services - outward transportation beyond the place of removal appeared - Held that:- In fact the question, whether price of goods is on FOR basis or not is an important aspect necessary to decide the question whether it can be included within 'input service' or not and since for determination thereof, matter has been remanded, therefore, in our view, it would not be appropriate at this stage to answer the substantial question of law formulated above and instead let the matter be decided by competent authority as per remand order passed by Tribunal after recording factual findings and, therefore, we leave this question open.
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2016 (7) TMI 1205
Cenvat Credit - rejection of CENVAT Credit based on non registration of input service distributor - receipt of input services at head office - Held that:- No findings are given by the adjudicating authority on merits regarding non-admissibility of CENVAT Credit to input services under CENVAT Credit Rules, 2004. Department has not filed any appeal against the said Order-in-Original dated 10/8/2010 passed by Adjudicating authority. Commissioner (Appeals) by bringing the admissibility of Cenvat credit on merits has gone beyond the scope of the appeal filed before him. To that extent appeal filed by the appellant is allowed by setting aside Order-in-Appeal dated 31/3/2014 with consequential relief, if any. - Decided in favor of assessee.
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2016 (7) TMI 1204
SSI exemption - extended period of limitation - eligibility to avail benefit of Notification No.9/03-CE dated 01.03.2003 - the aggregate value of clearances of all excisable goods for home consumption from its two units during 2003-04 had exceeded ₹ 300 Lakhs. - Held that:- if it is not open to the superior court to either add or substitute words in a statute, such right cannot be available to a statutory Tribunal - The reasoning that once knowledge has been acquired by the Department, there is no suppression, and as such, the ordinary statutory period of limitation prescribed under sub-section 1 of Section 11 A would be applicable is fallacious, inasmuch as, once the suppression is admitted merely because the Department acquires knowledge of the irregularities; the suppression would not be obliterated. - Demand confirmed - Decided against the assessee.
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2016 (7) TMI 1203
Determination of price for the purpose of reversal of Cenvat Credit - whether price is inclusive of 10% amount or not - demand of 10% of the price of exempted final products - Difference of opinion - Held that:- Whether the amount of 10% required to be reversed in terms of provisions of Rule 6(3)(b) is to be considered as "other tax" so as to deduct the same from the assessable value and the appeal has to be allowed by following the earlier order of the Tribunal in the same assesse's case as held by Member (Technical) OR the said reversal of 10% in terms of the said Rule 6(3)(b) is not required to be deducted from the value of the exempted final products and the matter needs to be referred to the Larger Bench of the Tribunal for resolving the disputed issue as held by Member (Judicial)? - Matter referred to larger bench.
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2016 (7) TMI 1202
Demand of differential duty - When the Commissioner in the impugned order has not given the appellants benefit of Cenvat credit on capital goods, the appellants plead that after allowing them benefit of admissible Cenvat credit, the actual duty liability is to be revised. - invocation of extended period of limitation - Held that:- Both the appeals are remanded back to the Commissioner of Central Excise, Bangalore-1 for re-computation of the liability of payment of Central Excise duty, interest and imposition of penalties, if any. - Matter remanded back with directions.
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2016 (7) TMI 1201
Procurement of inputs without payment of duty - export of exempted goods - Department took the view that Notifications No.24/2010-CE(NT) dated 26.05.2010 has amended Notification 42/2001-CE(NT) dated 26.06.2001 inserting a condition restricting the scope of earlier Notification and specifically excluding export of excisable goods which are chargeable to Nil rate of duty or wholly exempted from payment of duty under bond; that since frozen prawns/shrimps and other marine food are chargeable to Nil rate of duty, hence export of these goods are not done under bond; therefore procurement of packing material from the exporter without payment of duty vide Notification No.43/2001-CE (NT) dated 26.06.2001 is incorrect. Held that:- when such Annexure 1 certificate continued to be live and are not cancelled or declared void by department after following due procedure. The clearances effected on the strength of such annexure by the appellant cannot be denied the benefit of exemption provided by notification 43/2001 CE (NT) dated 26.06.2001. Unless annexure 1 certificate is cancelled or rejected by competing authority by following procedure under Section 35 E department cannot invoke Section 11A - impugned order is unsustainable and requires to be set aside, which we hereby do. - Decided in favor of assessee.
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2016 (7) TMI 1200
Excise duty on malt extract - whether the malt extract, which arises during the course of manufacturing of Indian Made Foreign Liquor (IMFL), is liable to pay the duty as it is an excisable commodity falling under Chapter 19 of the Central Excise Tariff Act, 1985? - Held that:- Identical issue has been settled by the Tribunal in the case of Mohan Rocky Springwater Breweries Ltd. & SKOL Breweries Ltd.(2003 (9) TMI 485 - CESTAT, MUMBAI ) WHREIN held that the malt extract are WORT, which is not an marketable commodity, hence no duty demand can be raised. - Decided in favour of assessee.
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2016 (7) TMI 1199
Cenvat Credit - capital goods - after using them for about 3-6 years, cleared them to their sister unit in Bangalore reversing Cenvat credit as applicable on the depreciated value of the capital goods - The Commissioner (Primary Adjudicating Authority) held that the entire amount of Cenvat credit taken at the time of acquisition of these capital goods was required to be paid (reversed) at the time of clearance of these goods as capital goods were removed as such i.e. as capital goods and not as scrap. Held that:- matter remanded back to the original adjudicating authority for arriving at the depreciated value of the capital goods in question inasmuch as I nowhere find as to how the depreciated value stands arrived at by the appellant. Levy of penalty - It is evident that on the issue involved in this case, Delhi High Court and Chennai High Court had taken different views. As per Delhi High Court, no cenvat credit was required to be reversed when capital goods were cleared after use. In these circumstances, it will be unjust and injudicious to subject the appellant to penalty, particularly when the appellant cleared the capital goods and paid duty at the depreciated value. Further, as the goods were cleared to its sister unit and duty paid would have been available to sister unit as credit, there could not have been any malafide on the part of the appellant. Indeed, in the appellants own case, CESTAT vide its order No.51934/2014 dated 15.04.2014 referred to earlier waived penalty altogether. Accordingly, no penalty is warranted in this case. Decided partly in favor of assessee.
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2016 (7) TMI 1198
Disallowance of credit on capital goods - Held that:- The appellant has explained that the hoses are used to connect / transport silicon carbide just like pipes. Air receivers serve the purpose of air compressors in the manufacture of final product. These goods are integral to the manufacturing process and would fall within the definition of capital goods/parts. In view thereof, hold that credit on Air receiver and corrugated hoses is admissible. Disallowance of credit on input services - The period involved is April 2006 to January 2011 - Held that:- The contention of the appellant counsel that the service of payroll processing and C Form collection service is connected to the activity of accounting is not without substance. The definition of input service, as contained in Rule 2(l) of CENVAT Credit Rules, 2004 speaks about services used in relation to activities relating to business such as accounting, auditing, financing etc. Payroll processing of employees is part of maintaining proper accounts. So also C Form has to be collected and submitted which is necessary for upkeep of tax accounting. As such, I hold that the credit on these input services is admissible.
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CST, VAT & Sales Tax
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2016 (7) TMI 1195
Classification of Fully Computer controlled electronic plain paper copier machine - Gujarat sales tax - Held that:- the electronic goods which do not fall under Part (A), (B) or (C) of Entry 97 would fall under Part (D) of Entry 97. Not only that the Deputy Commissioner has also held that component parts and spare-parts of the machine in question are covered by Entry 97 (D), therefore, the Tribunal has not committed any error while holding that sale of “Fully Computer controlled electronic plain paper copier machine” would be sale of electronic goods covered by entry 97D of Schedule IIA of the Act.
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2016 (7) TMI 1194
Issuance of duplicate and forged ST-35 forms and C-Form - irregularity - offence punishable under Section 420/34 IPC - respondent No.2 claimed that he had already furnished Forms ST-35 to the Accountant of the appellant who had put his signature and affixed seals on the reverse side of the counter-foils. The appellant was called by the Sales-Tax Officer (STO) and shown the counter-foils of the Forms ST-35 bearing the seals of his sole proprietorship concern as well private limited company. The seals and signatures both were disputed by him pointing out that while the registered office of the company was at East-Patel Nagar, the seal on the counter-foils were of the address at Manak Vihar, Delhi. Held that:- Admittedly the complainant had given the written requests in deliberation with the concerned Sales Tax Officer on 7th December, 2001 and procedure for issuance of duplicate Forms ST-35 was undertaken by T.R.Biyani – respondent no.2. - Similarly in respect of second incident pertaining to one out of ten C Forms supplied, the mistake was pleaded to be inadvertent and the said mistake was only an irregularity and not an illegality so as to make it culpable. This fact was confirmed even by the Sales Tax Department, Goa and the mistake was also rectified. The learned Trial Court has rightly come to the conclusion that while supplying ten C-Forms one out of that for the year 1996-1997, 1997-1998 was for two financial years but this being an irregularity was not sufficient to hold the accused No.2 and 3 guilty for the offence punishable under Section 420/34 IPC. On re-evaluation of the evidence and the finding recorded by the learned Trial Court, the grounds on which the learned Trial Court has based its conclusion, the order of acquittal does not warrant any interference by this Court in exercise of appellant jurisdiction.
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2016 (7) TMI 1193
Denial of input tax credit - Validity of assessment order - demand based on defects pointed out by the Enforcement Wing and prepared statement got signed - abdication of the powers of an Assessing Officer and on the principles of violation of natural justice and non application of mind - Held that:- Two things emanate from the observations. Firstly, the Assessing Officer came to the conclusion that there was an admission of the defects, which are seriously disputed by the petitioner. The second is that the Assessing Officer was of the opinion that he is duty bound to accept and implement the audit report. These observations are totally erroneous in the light of the settled legal principles as to how the Assessing Officer has to conduct himself. A report from the Enforcement Wing may be a starting point for issuance of a notice. But, the Assessing Officer, being a Statutory Authority, on issuance of notice proposing revision of assessment, is required to call for objections from the dealer and if the dealer places objections, then the Assessing Officer is duty bound to decide the matter on merits independently unbiased and uninfluenced by any other factor. Therefore, the observation made by the respondent in the impugned orders that he is duty bound to implement the audit report is a perverse observation and deserves to be set aside. Secondly, the admission of guilt, if held to be the sole basis for rejecting the dealer's case, the settled legal principle is that the admission should be candid and unequivocal. In the instant case, the petitioner has not only stated that the pre-prepared statement was compelled to be signed, but also stated that they gave their objections on 5.3.2015 for correction of the statement, which was recorded on 17.2.2015. Writ petitions allowed - order set aside - Matter remanded back. - Decided in favor of petitioner.
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2016 (7) TMI 1192
Reversal of Input Tax Credit (ITC) on account of cross verification of Annexure I of the buyer with that of Annexure - II of the seller - levy of tax on intellectual property purchased and used - Held that:- the respondent was required to examine that the said issue, peruse the business transfer agreement and if necessary call for other records to find out as to whether it was the case of transfer of business as a whole. However, on a perusal of the impugned proceedings, it is evidently clear that such exercise has not been done. Therefore, the necessarily the finding recorded by the respondent so far as the finding in D.No.3 requires to be set aside and remanded for fresh consideration. With regard to finding in D.No.2 is concerned, once again it appears that there was no sufficient opportunity granted to the petitioner, since after the receipt of the notice dated 29.01.2016 the petitioner sought for time atleast of 15 days and this has not been either accepted or rejected. - Therefore, the finding rendered in D.No.2 of the impugned order also calls for interference and remitted for fresh consideration. Order set aside - Matter remanded back.
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Indian Laws
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2016 (7) TMI 1190
Violation of copyright - “infringing products” designs - the products i.e. food grade plastic storage containers known as Tupperware registered as trade mark in the name of plaintiff - design infringement under Section 20 of the Designs Act; - copyright infringement under Section 55 of the Copyright Act; - Held that:- unless a work of art is capable of design protection and has been registered as a design, or should have been registered as a design, the copyright in the underlying artistic work subsists independently of design rights. In this case, the work is protected as a design; the averments in the suit are that design registration subsists in respect of the products which the defendants are alleged to have infringed. In the circumstances, the question of asserting a copyright infringement claim, independently, when the design protection subsists, but infringement has not been prima facie established, cannot arise at all. In the present case, the copyright protection (and infringement) claim is premised on a bare assertion that the drawings (from which the moulds are made) are artistic works, because considerable amount of money was spent on the making of such molds. Though the court cannot comment on the veracity of such claim, at least the decision in Modak (2007 (12) TMI 466 - SUPREME COURT) now binds it to examine every copyright claim closely, to see whether there is some minimum creativity. Now, the plaint nowhere discloses that the drawings (i.e. the artistic works here) have any inherent capability of art: it is evident that these drawings are of commonplace every day articles used in households. The idea expression doctrine, itself would prima facie prevent copyright protection because the depiction of daily articles cannot per se be “enclosed” to create a monopoly where the legitimate monopoly (design right) which the plaintiffs could have claimed, has not been prima facie established by them. Whilst in the case of trade dress in the form of label or mark, distinctiveness is easily discernable, in the case of shape based trade dress, the plaintiff has to necessarily show that the get up of the product or article (over which certain exclusivity or distinctiveness is claimed) has an integral association only with it. Unless this requirement is pleaded and established, (and for interim injunction purposes, at least prima facie) every product with a commonplace shape would “ride” on the reputation of an exclusive trademark, based on a distinctive name, label or color combination of the packaging or label, etc. In this case, the distinctiveness of the shape of the product- asserted to be unique or solely associated with the plaintiff has not been so pleaded and established. Decided against the appellant / plaintiff.
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2016 (7) TMI 1189
Running coaching classing by chartered accountant while using the prefix as 'CA' - wilful violation of the statement given to the Court - Disciplinary proceedings against the Chartered Accountant (CA) - guilty of “other misconduct” falling within the meaning of clause (2) Part-IV of the First Schedule to the Chartered Accountants Act, 1949 - Learned counsel for the petitioner further contends that the respondent along with his name is mentioning “CA”, which implies that he is offering the services of the accountancy and representing himself as Chartered Accountant. Held that:- This contention is also not acceptable as the respondent is registered as a Chartered Accountant and till he is removed from the rolls, he is entitled to use the prefix and suffix “CA”. - the respondent has been awarded the punishment of reprimand and has neither been suspended nor removed from the rolls of the Institute of Chartered Accountants of India. The issuance of advertisements offering to take coaching classes and to impart of training to aspirants of the profession of chartered accountancy, in the above circumstances, cannot be said to be carrying on the profession of chartered accountancy so as to constitute wilful violation of the undertaking given to this court on 14.03.2016. Petition dismissed - Decided in favor of Respondent/ Chartered Accountant.
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