Saturday, September 10, 2011

Some recenrt case laws

2011-TIOL-540-HC-MP-IT + it story


CIT, Jabalpur Vs M/s Khemchand Motilal Jain (Dated: August 23, 2011)


Income tax – Section 37(1) – Whether when the Director of the company is on business tour and is kidnapped by dacoits; ransom money paid to get him releases is to be treated as incidential to business as per Sec 37(1) - Whether the payment made towards ransom for saving the life of the Director of the assessee-company is prohibited by law and thus, not allowable expenditure.- Revenue's appeal disallowed: JABALPUR HIGH COURT


2011-TIOL-539-HC-ALL-IT


M/s Shyam Enteprises Vs CIT, Allahabad (Dated: August 4, 2011)


Income Tax - Section 32 - Whether the depreciation on cooling chambers of the cold storage is allowable at the rate of 25%. - Assessee's appeal allowed: ALLAHABAD HIGH COURT


2011-TIOL-538-HC-KAR-IT


Sri P Dayananda Pai Vs ACIT, Bangalore (Dated: July 1, 2011)


Income tax – Sections 147, 148, 153 - Whether when the assessee did not file a return of income and a notice u/s 148 was issued to file the return and a second notice u/s 148 was made after considering the return filed before the issue of first notice u/s 148, the second notice is a valid notice as the first notice is fulfilled by the filing of return before the service of the first notice and the second notice, issued after the AO having reasons to believe that the income or profit or gains chargeable to income-tax had escaped assessment, is not a "second notice" – Whether the assessment made within two assessment years from the end of the assessment year, in which the revised return is filed in response to notice issued u/s 148 second time, is a valid assessment and is not time barred considering the date of notice issued for the first time.- Assessee's appeal dismissed: KARNATAKA HIGH COURT


2011-TIOL-533-ITAT-DEL


ITO, Faridabad Vs Shri Yashpal Gera (Dated: May 20, 2011)


Income Tax - Sections 40A(3), 153A, 153C – Whether estimated addition is permissible under the new provisions of search and seizure - Whether, under the new provisions of search and seizure, AO can spread over his estimate to that time period for which no material has been unearthed during search - Whether provisions of section 40A(3) can be invoked in a case where income has been estimated. - Revenue's appeal dismissed: DELHI ITAT


2011-TIOL-532-ITAT-DEL


DCIT, New Delhi Vs M/s Neptune India Ltd (Dated: June 30, 2011)


Income Tax - Section 41(1) - Whether AO, by invoking the provisions of section 41(1) of the Act, can add any outstanding liability without bringing any material on record to establish that the liability in fact becomes ceased - Revenue's appeal dismissed: DELHI ITAT




SERVICE TAX SECTION


2011-TIOL-1114-CESTAT-DEL


M/s A G Engineers Vs CCE, Ghaziabad (Dated: June 2, 2011)


Service Tax - Valuation - Clearing and Forwarding Service - Reimbursement of Expenses - Penalty - Reimbursed expenditure is to be included in taxable value. However, due to the confusion prevailing at the relevant period, penalty stands waived. - Appeal partly allowed: DELHI CESTAT


2011-TIOL-1113-CESTAT-DEL


M/s A G Engineers Vs CCE, Ghaziabad (Dated: May 31, 2011)


Service Tax - Maintenance or Repair Service - Authorised Agent - Assessee is a dealer of branded goods. But there is no evidence that the appellant acted under any contract or as an authorised service provider. Taxation cannot be under presumption. Demand set aside along with penalties and intertest.- Appeal allowed: DELHI CESTAT


CENTRAL EXCISE SECTION


2011-TIOL-86-SC-CX + sc story


M/s Air Liquide North India Pvt Ltd Vs CCE, Jaipur (Dated: August 30, 2011)


Central Excise- Helium Gas purchased in bulk, processed and sold in cylinders - liable to excise duty: The fact that the gas was not sold as such is further established from the fact that the gas, after the tests and treatment, was sold at a profit of 40% to 60%. If it was really being sold as such, then the customers of the appellants could have purchased the same from the appellant's suppliers. When this question was put to the officer of the appellant, he could not offer any cogent answer but merely stated that it was the customers' preference. Further, he did not give proper answer as to how the profit margin was so high. The appellant had supplied the gas not as such and under the grade and style of the original manufacturer but under its own grade and standard. Further, while selling the gas, different cylinders were given separate certificates with regard to the pressure, moisture, purification and quality of the gas. This explains the high price at which the appellant was selling the gas. Therefore, the Tribunal has rightly observed that if no treatment was given to the gas purchased by the appellant, customers of the appellant would not have been purchasing Helium from the appellant at a price 40% to 60% above the price at which the appellant was purchasing.


Marketable to the consumer: The word "consumer" in this clause refers to the person who purchases the product for his consumption, as distinct from a purchaser who trades in it. The marketability of the product to "the purchaser trading in it" is distinguishable from the marketability of the product to "the purchaser purchasing the same for final consumption" as in the latter case, the person purchases the product for his own consumption and in that case, he expects the product to be suitable for his own purpose and the consumer might purchase a product having marketability, which it did not possess earlier.- Appeal Dismissed: SUPREME COURT


2011-TIOL-1117-CESTAT-MUM + cx story


CCE, Mumbai Vs Hawkins Cookers Ltd (Dated: June 16, 2011)


Assessee claiming deductions based on CA certificate on account of dealer discounts and taxes in respect of parts of pressure cookers which are assessed in terms of s. 4 of the CEA, 1944 – apprehension of department that expenses incurred for sale of pressure cookers (valued u/s 4A) have been included for deduction is not supported by any evidence – Revenue appeal dismissed: MUMBAI CESTAT


2011-TIOL-1116-CESTAT-BANG


Mangalore Refinery & Petrochemicals Ltd Vs CCE, Mangalore (Dated: February 8, 2011)


Central Excise – Eligibility of CENVAT Credit on chequered plates, Tor steel, TMT bars – Lower authorities did not record any detailed findings on submissions made by appellants regarding usage of disputed items in factory premises – Adjudicating authority directed to reconsider issue on merits – Matter remanded without expressing any opinion on merits - Appeal allowed by remand :BANGALORE CESTAT


2011-TIOL-1115-CESTAT-MAD


CCE, Chennai Vs M/s Eveready Industries (I) Ltd (Dated: April 19, 2011)


Central Excise – Valuation of intermediate goods manufactured and stock transferred - Assessee's submission that method prescribed in CAS-4 has been followed is not controverted by Revenue - The correct method is to adopt the cost of material during the year on actual basis and not on any notional basis or on average basis. - Appeal dismissed: CHENNAI CESTAT


CUSTOMS SECTION


NOTIFICATIONS


ctariff11_083


Govt imposes Safeguard Duty on import of PX-13 (6 PPD)


cnt11_063


CBEC revises tariff value of poppy seeds + brass scraps


DGFT PUBLIC NOTICES


dgft10pn075


Amendment in Appendix 2 and Appendix 5 of Handbook of Procedure Vol.I (Appendices and Aayat Niryat Forms), 2009-2014


dgft10pn074


MODIFICATION OF SION C-1579 under Engineering Product Group


DGFT TRADE NOTICE


Trade Notice 19


Penalty for failure to export cotton yarn in terms of Policy Circular No. 27 dated 01.04.2011 and Policy Circular No. 38 dated 10.08.2011.


CASE LAW


2011-TIOL-1118-CESTAT-MUM + cus story


Godrej Hi Care Ltd Vs CC (Dated: June 9, 2011)

It is settled law that substantive statutory provisions should be strictly construed - There is nothing in the definition of "manufacturer" u/r 2(h) of SWAM Rules, 1977 to show that mere affixture of trade mark would suffice the requirement of the inclusive definition - MRP based CVD assessment applicable to importers who affix their own brand name on notified goods and supply to institutional consumers: MUMBAI CESTAT

[2011] 12 taxmann.com 503 (CUTTACK - ITAT)
IT : Interest on fixed deposits for a term exceeding more than one year would be rendered to tax only on its receipt from bank on maturity on basis of certificate of TDS issued by bank
[2011] 12 taxmann.com 502 (MUM. - ITAT)
IT/ILT : Where assessee, an Israel based company, entered into an agreement with an Indian company for supply and licence of software for operation, management and maintenance of its wireless network in India, payment made by Indian Company to Israel Company was for purchase of copyright material which did not amount to royalty within meaning of article 12(3) of India-Israel DTAA and, thus, same was not liable to tax in India


[2011] 12 taxmann.com 492 (GUJ.)
ST : Levy of service tax on renting of immovable property under section 65(105)(zzzz) as amended by Finance Act, 2010 with retrospective effect from 1-6-2007, is constitutionally valid
[2011] 12 taxmann.com 493 (UTTARAKHAND)
IT/ILT : Amendments proposed in section 44BB and 44DA would take effect from 1-4-2011 and would apply in relation to the assessment year 2011-12 and subsequent years

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