Tuesday, December 15, 2009

CCD HIGHLIGHTS ISSUE Dt.15.12.2009 Volume 24 Part 8

CONSOLIDATED COMMERCIAL DIGEST (CCD) HIGHLIGHTS ISSUE DATED 15.12.2009 Volume 24 Part 8

 

ARTICLES

CCD CHAMBERS

CASE LAW

STATUTES

 

ARTICLES

FEMA

Analysis of DIPP's Press Notes Nos. 2, 3 and 4 of 2009-Amit Kumar and Vinay V. Mishra, Gujarat National Law University, Gujarat

Foreign investment is one sector which has always been looked at with critical eyes. It is governed by a combination of the prevailing foreign investment policy of the Government of India, the Foreign Exchange Management Act, 1999 and regulations and notifications issued by the Reserve Bank of India, under the FEMA.

 

The 2009 Press Notes Nos. 2, 3 and 4 changed the scenario and method by which foreign investment is calculated for downstream investment of foreign companies. This has given rise to various confusions and still requires clarifications as to the exact intent of the policy. There is both support for and opposition to the policy. Whatever may be the situation, these press notes have created an entirely new environment for foreign investment.

 

This article attempts an analysis of the same by comparing the previous and present position with some recent examples. P. 618

CCD CHAMBERS

Find out answers to your queries on the following subjects:

Income-tax

Claim of deduction under sections 80DD and 80U -- certificate required from medical authority P. 626

 

FBT on expenses reimbursed by customer P. 627

 
Service tax

Clearing and Forwarding Services P. 628

Maintenance and Repair Services P. 629

Bottling of liquor P. 630

Authorized service stations P. 630

Mining services P. 631

 

 

CASE LAW

 

Digest of recent decisions

Corporate Law

Scheme of amalgamation-Could a scheme of amalgamation be sanctioned without notice to the secured creditors when public interest is at stake?--Ramco Super Leathers Ltd. v. Dhanalakshmi Bank Ltd. [2009] 152 Comp Cas 437 (Mad). P. 642

 

Winding up-Could a winding up petition be dismissed on the ground that amount claimed in statutory notice was larger than amount claimed to be admittedly due in the petition?--Lecoanet Hemant India P. Ltd. v. Interglobe Aviation Ltd. [2009] 152 Comp Cas 495 (Delhi). P. 642

 
Income-tax

Appeal to Appellate Tribunal-Could an appeal filed by the Department be dismissed on ground of low tax effect? Would an order of rectification under section 154 be passed when on facts there was no error apparent on the records?--CIT v. Chandulal alias Vallabhdas Damji [2009] 317 ITR 426 (Guj). P. 643

 

Penalty-Can penalty proceedings be initiated under section 271(1)(c) of the Income-tax Act, 1961 for failure to disclose capital gains from the sale of property although the sale agreement was filed alongwith the application seeking the clearance certificate?--Smt. Ram Piari v. CIT [2009] 225 CTR (P&H) 330 P. 644

Intellectual Property Rights

 

Trademark-For an action against "passing off" to succeed under the Trade Marks Act, what constitutes the burden of proof on the plaintiff? Could the plaintiff, having registered a trademark overseas without significant sales turnover, claim prior use of the trademark against an Indian company having an identical trademark in India, which was registered prior to the plaintiff's entry into the Indian market?--UAS Pharmaceuticals Pty. Ltd. v. Ajantha Pharma Ltd. 2009 (41) PTC 234 (Mad). P. 645

Labour Law

 

Dismissal-Under the A. P. Civil Services (Classification, Control and Appeal) Rules, 1963, could an order of dismissal against an errant employee passed by an authority superior to the appointing authority be set aside on the ground that it deprived the employee's right of appeal?--Government of A. P. v. N. Ramanaiah 2009 IV LLJ 621 (SC). P. 646

Sales tax and VAT

 

Exemption-Can exemption granted to new industrial units of medium and large scale for a period of seven years as a policy decision of the Government to extend promotional support to new ventures be denied to an industry which had started its commercial production nine months prior to the cut-off date?--Pepisco India Holdings P. Ltd. v. State of Kerala [2009] 24 VST 67 (SC). P. 647

Miscellaneous

 

Tender-Work of setting up electrical transmission-Is a company justified in challenging the refusal to award contract to it on the ground that it lacked the necessary technical expertise when it had surveyed, optimised tower locations, erected and strung with tension stringing equipment which were sufficient proof of its requisite technical experience to be eligible for the contract?--Electrical Manufacturing Co. Ltd. v. Power Grid Corporation of India Ltd. [2009] AIR 2009 SC 3001. P. 647

Digest of decisions of Tribunal and other Forums

Central Excise & Customs

Merchant Overtime charges-Would an appeal be maintainable against the order of short-paid MOT charges?--CCE v. Wolkem India Ltd. 2009 (238) ELT 370 (CESTAT-Delhi). P. 648

National Calamity Contingent Duty (NCCD)-Could exemption from payment of National Calamity Contingent Duty be claimed on captively consumed items of manufacture?--Paras Petrofils Ltd. v. CCE 2009 (237) ELT 367 (CESTAT-Ahmedabad). P. 649

Income-tax

 

Business income-Could the provisions of section 50C of the Income-tax Act be invoked on the sale consideration received on sale of two flats by the assessee-company, involved in the business of construction of residential flats, and which was treated as business income?-Inderlok Hotels Pvt. Ltd. v. ITO [2009] 318 ITR (AT) 234 (Mumbai). P. 650

Service tax

 

Business Auxiliary Services-Does the activity of maintenance of roads, toll booths and collection and remittance of toll amount, amount to Business Auxiliary Services?--PNC Construction Co. Ltd. v. CST 2009 (15) STR 42 (CESTAT-Delhi). P. 651

Clearing and Forwarding Agent service-Valuation-Where the gross amount charged is inclusive of service tax, would the cum-tax benefit be available for the period before insertion of Explanation 2 to section 67?--Abirami Associates v. CCE 2009 (14) STR 801 (CESTAT-Chennai). P. 651

Consumer Disputes

 

Banking-Where a credit-card holder dies before paying his dues on the card, leading to cancellation of the card, would the life insurance offered by the card continue to be valid?--Kavita Sharma v. American Express Bank Ltd. IV [2009] CPJ 203 (NC).P. 652

 

Interest-Upon cancellation of a booking for a flat, would not refunding the amount as per the terms of the agreement amount to deficiency in service on the part of the seller under the Consumer Protection Act, 1986?--DLF Commercial Developers Limited v. Ravinder Zutshi IV [2009] CPJ 163 (NC). P. 652

 

 

STATUTES

 

Summary of recent statutory changes

Commercial Law

Securities and Exchange Board of India

Securities and Exchange Board of India Act, 1992-Market access through authorised persons-Ref. MIRSD/DR-1/Cir-16/09, dated November 6, 2009. P. 653

Special Economic Zones

Special Economic Zone Authority Rules, 2009-Coming into force-Notification G. S. R. 811(E), dated November 11, 2009 P. 653

Direct Taxes

Income-tax Act, 1961-Applicability of provisions under section 194J of Income-tax Act, 1961, in the case of transactions by the Third Party Administrators (TPAs) with hospitals, etc.-Circular No. 8 of 2009, dated November 24, 2009 P. 653

Income-tax Act, 1961-Authorities to issue authorisation-Notification No. S. O. 2879(E), dated November 11, 2009 P. 655

Income-tax (Dispute Resolution Panel) Rules, 2009-Coming into force-Notification No. S. O. 2958(E), dated November 20, 2009 P. 655

 

Indirect Taxes

Foreign Trade

Handbook of Procedures Vol. 1-Para 4.21 Amended-Public Notice No. 15 (RE-2009)/2009-14, dated October 27, 2009 P. 655

Service Tax

Finance Act, 1994-Exempts the taxable service during the course of manufacture of parts of cycles or sewing machines-Notification No. 42/2009-ST, dated November 12, 2009 P. 656

 



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IncomeTaxIndia pan card – pan status & verification

Experts, you can forward it to newbees.

IncomeTaxIndia pan card – www.incometaxindia.gov.in pan status & verification

PAN stands for Permanent Account Number, which is ten-digit alphanumeric number. Income Tax Department issues PAN in the form of a laminated card. AABPS1205E is a typical PAN. www.incometaxindia.gov.in is the official site of IncomeTaxIndia. The information of IncomeTaxIndia pan card at www.incometaxindia.gov.in pan status & verification is provided below.

It is compulsory to quote PAN on return of income, all correspondence with any income tax authority and on challans for any payments due to Income Tax Department. It is also compulsory to mention PAN for getting a cellular telephone connection or telephone. Quote PAN is compulsory in all documents pertaining to financial transactions informed from time-to-time by the Central Board of Direct Taxes. When you are creating a time deposit exceeding Rs. 50,000/- with a Bank or Post Office or depositing cash of Rs. 50,000/- or more in a Bank, PAN has to be mentioned first.

On the website of the Income Tax department, facility for verifying PAN is available. But remember that getting or possessing more than one PAN is against the law. Only on Form 49A, PAN application should be made. From the website of Income Tax department or UTIISL or NSDLA, PAN application can be downloaded. An application for PAN is made in Form 49A obtained from anywhere and any source other than IT PAN Service Centers or TIN Facilitation Centers. You can get Pan Card Application Form at http://www.incometaxindia.gov.in/archive/form49ae.pdf.

With the application for Form 49A, Information must be submitted is as follows:

  • Individual applicants will have to affix one recent, coloured photograph (Stamp Size: 3.5 cms x 2.5 cms) on Form 49A.
  • Any one document listed in Rule 114 must be supplied as proof of 'Identity' and 'Address'.
  • Designation and code of the concerned Assessing Officer of Income Tax department will have to be mentioned in Form 49A.

Incomplete form will not be received by IT PAN Service Centers or TIN Facilitation Centers but these centers will assist applicants to correctly fill up form 49A. A photograph is compulsory only in case of 'Individual' applicants.

If an application for allotment of PAN is submitted through Internet and payment made through a 'nominated' credit card, then PAN is allotted on priority and communicated through email. Left Hand Thumb impression of the applicant should be affixed on Form 49A is the procedure for applicants who cannot sign. Only father's name is required to be filled in the PAN application for female (including married/divorced/widow) candidate. Application for PAN will be made by the Representative Assessor in the case of a non-resident, a minor, lunatic, idiot, and court of wards and such other persons.

UTIISL and NSDL have been endorsed to collect Rs.85 + Service Tax as applicable, per PAN application and this includes cost of a tamper proof PAN card. At IT PAN Service Center or the TIN Facilitation Center, this amount will have to be paid in cash. If you had applied to the department but do not know about your PAN then contact the Aaykar Sampark Kendra (ASK) at 0124-2438000 (or 95124-2438000 from NCR) or visit the www.incometaxindia.gov.in and go to 'know your PAN' at https://incometaxindiaefiling.gov.in/portal/knowpan.do.

PAN must have those people:

  • All existing assesses or taxpayers or persons who are required to furnish a return of income, even on behalf of others, must obtain PAN
  • Any person, who intends to enter into financial transaction where quoting PAN is mandatory, must also obtain PAN.
  • The Assessing Officer may allot PAN to any person either on his own or on a specific request from such person.

The following categories of persons are not required to obtain or quote PAN:

  • Persons having only agricultural income and do not have any taxable income. Such persons will file a declaration (Form 61) in respect of transactions where quoting of PAN is mandatory
  • Non-residents
  • Central Government, State Governments and Consular Offices in transactions in which they are the payers

All inquiries should be addressed to:

For UTIISL:

The Vice President
IT PAN Processing Centre,
UTI Investor Services Ltd
Plot No. 3, Sector – 11
CBD_ Belapur
Navi Mumbai-400 614
e-mail.- utiisl-gsd@mail.utiisl.co.in
Tel No. 022-27561690
Fax No. 022-27561706

For NSDL:

The Vice President
Income Tax PAN Services Unit, NSDL
4th Floor, Trade World, A Wing
Kamala Mills Compound,
S. B. Marg, Lower Parel,
Mumbai-400 013
e-mail.- tininfo@nsdl.co.in
Tel No. 022-2499 4650
Fax No. 022-2495 0664

For more information of IncomeTaxIndia pan card, click here.

Source: http://www.incometaxindia.gov.in/

 



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Thursday, December 10, 2009

INCOME TAX REPORTS (ITR) HIGHLIGHTS ISSUE DATED 14-12-2009 Volume 319 : Part 3

INCOME TAX REPORTS (ITR) HIGHLIGHTS

ISSUE DATED 14-12-2009

Volume 319 : Part 3

 

 

SUPREME COURT JUDGMENTS


F Valuation of goodwill : Value depends on nature of business : CED v. Nalini V. Saraf p. 303

F Claim to refund of income-tax pending adjudication on date of death : No property available at time of death : CED v. Nalini V. Saraf p. 303

F Deduction only on actual payment : Contribution to PF : Amendment to remove difficulty retrospective in nature : CIT v. Alom Extrusions Ltd. p. 306

F Interpretation of statutes : Strict construction not preferred where leads to unintended consequences : CIT v. Alom Extrusions Ltd. p. 306

F Government company : Object to do research, printing and publishing of text books for school students conforming to norms prescribed by Education Dept. of State : Is educational institution exempt from tax : Assam State Text book Production and Publication Corporation Ltd. v. CIT p. 317

HIGH COURT JUDGMENTS


F Incentive bonus to Divisional Officer of LIC is part of salary not entitled to deduction of expenses incurred to earn bonus : CIT v. Surendra Kumar Gupta (All) p. 253

F Finding that cash loans of Rs. 20,000 each taken from seven persons : S 269SS not applicable : CIT v. Madhukar B. Pawar (Bom) p. 255

F Delay in filing returns : Penalty waived : Interest should also be waived : Sandeep M. Shah v. V. D. Wakharkar (Bom) p. 259

F Failure to serve notice before passing order of rectification : Requirement of s 154(3) violated : Mintri Tea Co. P. Ltd. v. CIT (Cal) p. 264

F Disallowance of PF contribution cannot be made in proceedings u/s 154 by way of rectification of intimation u/s 143(1)(a) : Mintri Tea Co. P. Ltd. v. CIT (Cal) p. 264

F Cost of construction : Reference to VO : Tribunal justified in deleting addition made by AO on basis of valuation report : CIT v. Aar Pee Apartments P. Ltd. (Delhi) p. 276

F Reassessment : Tribunal finding facts had been disclosed and AO discovering subsequently that income had been assessed under wrong head : Notice not valid : Gujarat Fluorochemicals Ltd. v. Deputy CIT (Guj) p. 282

F Stock options not perquisites granted by assessee : Assessee not liable to tax deduction at source : CIT v. Wipro Ltd. (Karn) p. 289

F Dept. initiating proceedings u/s 132A : Criminal court has no power to release cash to complainant : Deputy Director I.T. (Investigation) v. State of Gujarat (Guj) p. 292

F Trade advances not given out of loan taken by assessee : Finding of fact : CIT v. Ms. Sushma Kapoor (Delhi) p. 299

F Borrowed funds utilised only for investments and such investments correlated with borrowed funds : Finding of fact : CIT v. Ms. Sushma Kapoor (Delhi) p. 299

F Assessee entitled to depreciation in respect of two flats having half share in both flats : CIT v. Ms. Sushma Kapoor (Delhi) p. 299

F Right to receive additional compensation : Tribunal setting aside Commissioner (Appeals) order : Tribunal's order attaining finality : AO making fresh assessment : Tribunal justified in dismissing Revenue's appeal as infructuous : CWT v. Smt. Chandan (All) p. 327

F Search and seizure : Income declared in revised return : Assessee entitled to retract from revised returns : CIT v. K. Venkatesh Dutt (Karn) p. 331

F Machinery on which additional depreciation claimed need not be related to article or thing produced : CIT v. VTM Ltd. (Mad) p. 336

AUTHORITY FOR ADVANCE RULINGS


F Non-resident entering into an agreement with Indian company non-exclusive irrevocable right to use know-how and transfer ownership in tread and sidewall design/patterns : Tax to be deducted at source at ten per cent. for amount excluding consideration for transfer of tread and sidewall design/patterns : International Tire Engineering Resources LLC, In re p. 228

F Royalty : Licence of know-how and technical information covering provision of contract services and assistance for marketing to Indian subsidiary : Rate of tax in India ten per cent. : Sumitomo Mitsui Construction Co. Ltd., In re p. 322

APPELLATE TRIBUNAL ORDERS


F Company : Book profit : AO directed to verify whether assessee complies with conditions specified in Expln. (iii) to sub-s (2) of s 115JB : Beck India Ltd. v. Deputy CIT (Mumbai) p. 253

F Addition based on values obtained from Sub-Registrar's office in preference to valuer's report : Acceptance of addition not amounting to furnishing of inaccurate particulars for levying penalty : Asst. CIT v. Mrs. N. Meenakshi (Chennai) p. 262

F Capital gains : No reference to valuation cell made : Asst. CIT v. Mrs. N. Meenakshi (Chennai) p. 262

F Non-resident companies providing transponder capacity to telecasting companies in India : Consideration paid amounts to royalty : Assessable u/s 9 and also under DTAA : New Skies Satellites N. V. v. Asst. Director of I. T. (International Taxation) (Delhi) [SB] p. 269

STATUTES


F Notifications :

Institutions approved by the Chief CIT, Jaipur/Udaipur/Jodhpur for the purpose of section 10(23C)(iv)/(vi)/(via)
p. 62

Scientific research association notified by the Central Government for purpose of s 35(1)(ii)
p. 57

JOURNAL


F Remuneration to working partner : Treatment under I. T. Act (Kanhayalal Sharma, Advocate and Tax consultant) p. 39

F Revaluation of assets of a firm and its taxability (Dileep Shivpuri, Commissioner of Income-tax) p. 29

NEWS-BRIEF


F Self-assessed tax defaulters face action as CBDT keen to meet targets

The Government has decided to crackdown on corporates and individuals that have defaulted on payment of their self-assessment in the year in a bid to boost direct tax collections that are well below the target for the year.

Direct tax collections need to grow at 18 per cent. over the remaining five months of the fiscal 2009-10 ending March 2010 for the Government to achieve its direct tax target for the year.

The Central Board of Direct Taxes-the apex direct tax body that administers corporate tax, personal income-tax and wealth tax-has asked its field officials to crack down on companies that have not paid self-assessed tax for the year.

Corporate taxpayers could not only receive demand notices but also a visit from the taxman itself as the I-T Department gears up for increased surveys and searches to nab evaders and boost tax collections. Self assessment tax is the amount payable by the taxpayer if his tax liability as assessed by him is more than the advance tax paid by him.

The board has circulated a detailed list of taxpayers, the amount of tax due from them, tax exemption claimed for the field officers to carry out detailed investigations and collect due tax. E-filing of tax returns is mandatory for all corporates and assessees who have to be submitting audited results. Any delay in self assessment tax attracts a 1 per cent. a month interest levy for the delay and some penalty. The board's letter to the field comes in the backdrop of a dismal 3.92 per cent. growth in direct tax collections in first seven months (April-October 2009) of the financial year.
[Source : www.economictimes.com dated November 30, 2009]

F Officers hearing transfer pricing cases kept out of dispute panel

To ensure impartiality in adjudication of transfer pricing disputes, the Central Board of Direct Taxes (CBDT) has decided that Commissioners associated with transfer pricing orders will not be part of the alternate dispute resolution panel. This panel is being set up by CBDT to resolve disputes arising from transfer pricing assessments.

Dispelling the apprehensions among senior tax professionals that the committee will be comprised predominantly senior officers who have powers to approve the transfer pricing assessments, CBDT chairman told that those Commissioners associated with transfer pricing assessments will be kept out of the panel.

The Union Budget had said that a collegium of Commissioners would be established for resolving tax disputes between India's tax authorities and multinational companies. The panel's decision is binding on the Income-tax Department that is not allowed to appeal against the order before the Income-tax Appellate Tribunal. However, the taxpayer is free to do so. The panel has the power to call for fresh evidence.
[Source : www.economictimes.com dated November 30, 2009]

F Raise tax exemption limit on personal income : clamour ASSOCHAM

Industry body ASSOCHAM asked the Government to raise the tax exemption limit on personal income from Rs. 1.6 lakhs per annum to Rs. 4 lakhs per annum and for senior citizens up to Rs. 5 lakhs per annum.

"With favourable consideration of this proposal, taxpayers in low and middle income group, who could end up paying more tax than now, on account of removal of various exemptions and deductions under DTC, can benefit from raise in threshold limit as tax savings on account of increase in it could offset impact of removal of exemptions and deductions," the ASSOCHAM President said.

Meanwhile, the industry body has also urged the Government to bring in standard deduction of 50 per cent. of the salary or Rs. 2,40,000, whichever is less to balance out additional tax burden, which employees would be facing due to removal of various exemption.
[Source : www.economictimes.com dated November 30, 2009]

 



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Wednesday, December 9, 2009

New Income Tax Rate slabs for Individual, HUF, Women, Senior Citizen for A.Y. 2010-11 & F.Y. 2009-2010

Basic exemption for individual tax payers was increased by Rs 10,000 for general tax payers and women and Rs 15,000 for senior citizens (i.e. 65 years and above) by the finance minister on Monday.

The current income tax exemption limit is Rs 1.5 lakh (Rs 150,000) for men, Rs 1.8 lakh (Rs 180,000) for women and Rs 2.25 lakh (Rs 225,000) for senior citizens.

Surcharge and Education Cess—

Levy of surcharge has been withdrawn for personal income tax payers . Earlier surcharge was levied at 10% having total income exceeding Rs. 10,00,000/- on such cases.

"Education Cess on Income-tax" and "Secondary and Higher Education Cess on income-tax" shall continue to be levied at the rate of two per cent and one per cent respectively of income-tax.

Income tax slab tables for your quick reference

India Income tax slabs 2009-2010 for Men

Income tax slab (in Rs.) Tax
0 to 1,60,000 No tax
1,60,001 to 3,00,000 10%
3,00,001 to 5,00,000 20%
Above 5,00,000 30%

India Income tax slabs 2009-2010 for women

Income tax slab(in Rs.) Tax
0 to 1,90,000 No tax
1,90,001 to 3,00,000 10%
3,00,001 to 5,00,000 20%
Above 5,00,000 30%

India Income tax slabs 2009-2010 for Senior citizen

Income tax slab(in Rs.) Tax
0 to 2,40,000 No tax
2,40,001 to 3,00,000 10%
3,00,001 to 5,00,000 20%
Above 5,00,000 30%

The rates for persons not resident in India, including companies other than domestic companies,are the same. Basically, for corporate there are no tax rate changes and hence is at statuesque.


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