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Home e-Newsletters Index Year 2013 September Day 4 - Wednesday

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TMI Tax Updates - e-Newsletter
September 4, 2013

Case Laws in this Newsletter:

Income Tax Customs Corporate Laws Service Tax Central Excise CST, VAT & Sales Tax



TMI SMS


Highlights / Catch Notes

    Income Tax

  • Undisclosed income u/s 68 - Genuineness of Gift - Tribunal erred in law in dismissing the appeal only on the ground that since the 3rd Member had agreed with the Accountant Member, the appeal deserves to be dismissed. The question of genuineness of gifts in view of the opinion of the 3rd Member was not considered on merits and was thus still open - matter remanded back - HC

  • Deduction u/s 80IB - Duty drawback refund - Nexus with profit - Everything hinges on the findings about the degree of nexus between duty drawback receipts and the industrial undertaking, and it is only when there is a clear finding on this aspect that the correctness of assessee's claim can be tested on the principles of law - AT

  • Exemption u/s 11 - violation of section 11(1) and 11(1)(b) - Merely advertising the fact that facility of hostel, seminar halls, auditorium etc. can be used by organizations interested in having leadership programs for the benefit of youth does not make the activity a commercial activity - exemption to continue - AT

  • Disallowance u/s 40A(3) r.w.r 6DD - Cash payment - as per the amended provisions, the said provisions shall apply only if the aggregate amount of payments made to single party in a day exceeds Rs.20,000/-. if an assessee makes payment of Rs.20,000/- in a day and he so makes payments in five days, then such splitting up of payments would not be hit even by amended provisions. - AT

  • TDS on freight - who is liable for TDS supplier of buyer (Assessee) of the goods - If the supplier takes the responsibility to deliver the goods to the doorsteps of the assessee, then it can be inferred that the contract exists between the lorry owners and the supplier. In that case, even if the assessee makes payment of freight charges, it would be considered as payment made to the concerned supplier. - AT

  • Disallowance of depreciation - assessee had claimed 100 percent depreciation as the project was completely abandoned later in the year 1999. Since the machinery was never put to use by the assessee no depreciation is allowable for the assessment year 1998-99 - AT

  • Deduction u/s 54F - Exemption from capital gain - merely because the property acquired is in a foreign country, exemption cannot be denied if all other conditions are satisfied - AT

  • The entire personal scale business had been sold as a going concern for a lump sum amount, it was a case of a slump sale as defined in section 2(42C) and the profit arising from such slump sale is chargeable to tax as capital gain under the provisions of section 50B - AT

  • Rejection of books of accounts - The fact that the assessee has sold its products to its sister-concerns at a price lesser would not be a sufficient ground to come to a conclusion that the books of account of the assessee are not complete and correct. - AT

  • Sales promotion expenses - Whether bogus or Genuine - if the sellers are not filing their sales tax return, parties dealing with such person cannot be questioned or held responsible for such lapses. The whole payment has to be considered in the light of the provisions of section 37(1) - AT

  • Expenditure incurred on renovation of showrooms on rented premises - Revenue or capital expenditure - - assessee would continue to be the owner of these equipments, though they were installed in the premises of the dealer - held as capital expenditure - AT

  • Customs

  • Classification of Goods - import of Globes/Angle Valves and Cylinder Valves for use in agriculture and/or horticulture purpose - the appellants' claim for the benefit of exemption Notification for the items falling under Heading 84.24 claiming nil rate of duty under Notification No. 56/95 was justified - AT

  • Benefit of Notification No. 21/2002 - Assesse setup Petroleum Refinery and imported mobile cranes and claim concessional rate of duty - Cranes not specified in the list - The terminologies used in the Notification would have an important role to play. Where the exemption Notification ex facie applies, there was no reason as to why the purport thereof would be limited by giving a strict construction thereto - exemption allowed - AT

  • Benefit of Exemption Notification – import of stainless steel melting scrap - when there were Notifications in force simultaneously then that Notification which was beneficial to the assessee should be applied - AT

  • Whether the goods imported by the assesses and declared as raw/rough marble blocks, claiming duty free clearance against DEEC licence were actually rough Marbles or the same are limestone - goods were marble - AT

  • Demand of differential duty - Once the assesse had admitted to under-valuation and mis-declaration of goods and also discharged the duty liability willingly - he cannot turn around and now say that the valuation done by the Customs authorities was not sustainable in law - AT

  • Rejection of Transaction value - Undervaluation - Appellants had imported the concentrate Scotch whisky for dilution and sale and not for blending - the explanation given by the appellant for obtaining the lower price in respect of the supplies from the foreign supplier was convincing and there was no reason to reject the transaction price declared by them - AT

  • Corporate Law

  • Exclusive Right over Trademark - no one can claim exclusive right for the word 'IMPERIAL' since the word 'IMPERIAL' was only a common word - the petitioner had also registered yet another trade mark 'IMPERIAL RED' - Therefore, the word 'IMPERIAL' had to be looked into along with the colour to decide the issue, 'whether the trade mark of the petitioner could be registered or not' - HC

  • Service Tax

  • Sale of software / download of software - (a) If the software is to be supplied by way of electronic download of software, which involves provision of service and hence taxable. - (b) Applicant has granted license to run Microsoft software is a service and hence liable to service tax. - (c) transfer of software on media will not attract service tax. - AAR

  • Service tax liability - Classification - Bundled service - Business Auxiliary service - operating specified Spot Billing Centres and their maintenance - Appellate Commissioner erred in concluding that the transactions of the assessee constituted support services for business or commerce and not business auxiliary services, as held by the adjudicating authority - AT

  • Reverse charge on GTA service - it was doubtful whether Revenue can insist that payment should be made by the consignor and not by the consignee especially having regard to the fact that in these cases the payments were made by consignees - stay granted - AT

  • Business Auxiliary Service (BAS) u/s 65 (105) (zzb) - Sale of tickets - airlines tickets purchased from GSA/IATA - No commission received from GSSA/IATA agent - Prima facie strong case was in the favour of assessee - stay granted - AT

  • BAS - the appellant (Air Travel Agent) used central Computer Reservation Systems (CRS) software - Department had not made any effort to establish that there was Service provider/ receiver relationship between the appellant and CRS developer - When such relationship was not there, there was no service involved between them - No serviced tax on incentive received for use of CRS - Comm

  • Central Excise

  • MODVAT / Cenvat Credit – Capital Goods - Manufacturer versus trader - The appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country - credit not allowed - SC

  • Cenvat credit - Input services - Nexus with Business / manufacturing activity - Where the expenditure is incurred by the company in its books of accounts there is a presumption in favour of the appellant that the service is availed in relation to their business. So long as Revenue has not proved anything to the contrary - credit allowed - AT

  • Penalty u/s 11AC – Reversal of credit before issuance of SCN - he Modvat credit irregularly availed was reversed prior to the show cause notice, does not afford a good defence of good faith and could not be sustained in law - penalty to be levied - HC

  • Entitlement of MODVAT Credit - Capital Goods - ownership - Credit availed by the Job Worker - there was no justification in the Department taking a diametrically opposite view - The clarificatory letter clearly indicated the intention of the Revenue to grant relief in respect of job worker and to the persons who obtained capital goods - HC

  • MODVAT credit - CVD paid through DEPB - Notification No.34/97 - In the background of DEPB Scheme and the purpose of MODVAT Scheme, we hold that availing of credit is as good as tax payment for the purpose of Rule 57Q of the Central Excise Rules. - HC

  • CENVAT Credit - Separate Accounts - Prima facie it was impossible for the Appellants to maintain separate account and inventory of Zinc Skimming used for manufacture of Zinc Ingots and Zinc Sulphate (Agriculture grade) for the reason that one final product was the by product of the other, Rule 6(3)(b)/6(3)(i) read with Rule 6(2) of Cenvat Credit Rules, cannot be invoked - proportionate reversal by the assessee is acceptable - AT

  • VAT

  • Penalty Proceedings u/s 4-B(5) of the Trade Tax Act, 1948 - The penalty may not be imposed merely because there was a technical or venial breach and not deliberately defiance of law or conscious disregard of obligation by the assesse - The department must establish some sort of mens rea - HC


Articles


Circulars / Instructions / Orders


News


Case Laws:

  • Income Tax

  • 2013 (9) TMI 112
  • 2013 (9) TMI 89
  • 2013 (9) TMI 88
  • 2013 (9) TMI 87
  • 2013 (9) TMI 86
  • 2013 (9) TMI 85
  • 2013 (9) TMI 84
  • 2013 (9) TMI 83
  • 2013 (9) TMI 82
  • 2013 (9) TMI 81
  • 2013 (9) TMI 80
  • 2013 (9) TMI 79
  • 2013 (9) TMI 78
  • 2013 (9) TMI 77
  • 2013 (9) TMI 76
  • 2013 (9) TMI 75
  • 2013 (9) TMI 74
  • Customs

  • 2013 (9) TMI 104
  • 2013 (9) TMI 103
  • 2013 (9) TMI 102
  • 2013 (9) TMI 101
  • 2013 (9) TMI 100
  • 2013 (9) TMI 92
  • Corporate Laws

  • 2013 (9) TMI 99
  • Service Tax

  • 2013 (9) TMI 110
  • 2013 (9) TMI 109
  • 2013 (9) TMI 108
  • 2013 (9) TMI 107
  • 2013 (9) TMI 106
  • 2013 (9) TMI 105
  • Central Excise

  • 2013 (9) TMI 98
  • 2013 (9) TMI 97
  • 2013 (9) TMI 96
  • 2013 (9) TMI 95
  • 2013 (9) TMI 94
  • 2013 (9) TMI 93
  • 2013 (9) TMI 91
  • 2013 (9) TMI 90
  • CST, VAT & Sales Tax

  • 2013 (9) TMI 111
 

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