CONSOLIDATED COMMERCIAL DIGEST (CCD)
Volume 30 : Part 7 (Issue dated : 1-12-2011)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Corporate law
Indian Competition Act: thresholds of combination--Souvik Chatterji, Asst. Professor and Harshit Anand, National Law University, Jodhpur
The competition agencies all across the world have generally three broad responsibilities - addressing anti-competitive agreements, abuse of dominance and anti-competitive combinations. With that amount of work load it is not possible on the part of these agencies to bring every combination under their scanner. Competition Commission of India is also no exception. In India, section 5 of the Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007, has created thresholds crossing which the combining entities are supposed to compulsorily notify the combination to the Competition Commission of India. This article examines the thresholds and the efficacy of having such thresholds under the Indian Competition Act. P. 510
Digest of recent decisions
Central Excise & Customs
Customs duty --Does the writ court have jurisdiction to adjudicate issues relating to quantum of penalty imposed and the rationale behind imposition of such penalty when the Settlement Commission had not contravened any law or its order was in any way perverse, arbitrary or without jurisdiction?-- Marshal Power and Telcom (India) Ltd. v. Customs and Central Excise Settlement Commission [2011] 10 GSTR 70 (Mad). P. 530
Customs duty --Confiscation of duty--Where the Settlement Commission, after affording adequate opportunity and after considering the evidence had arrived at certain conclusions, could the High Court re-appreciate the evidence and come to a different conclusion in the absence of any concrete material to believe otherwise?-- Decent Enterprises v. Union of India [2011] 10 GSTR 166 (Mad). P. 531
Excise duty --Exemption--Would lifting water from well to overhead tank with the aid of electric motor, which activity was integral to the process of conversion of raw material to finished goods, amount to manufacturing with the aid of power and render the assessee in-eligible to claim nil rate of duty under Sub-Heading 3805.19?-- CCE v. Gurukripa Resins P. Ltd. [2011] 10 GSTR 1 (SC). P. 532
Excise duty --Short-payment of duty--Would restrictions imposed on an assessee by the authorities for a limited period because of the assessee's violation and subsequent payment of duty when confronted with a scrutiny, which showed a conscious attempt to gain an undue advantage, amount to arbitrary exercise of power?-- Reil Electricals India Ltd. v. Member (Central Excise), Central Board of Excise and Customs [2011] 10 GSTR 89 (Mad). P. 533
Corporate Law
Interlocutory applications --Is it necessary to issue notice of an application to parties who were already contesting in pending proceedings and represented by advocate?-- Official Liquidator of Murudeshwara Foods and Exports Ltd. (in liquidation) v. K. Ananda Shetty [2011] 167 Comp Cas 422 (Karn). P. 534
Offences and prosecution --Is a complaint of violation of section 295 of the Companies Act, 1956, filed in 2010 for offences committed in 2008 barred by limitation?-- Sanjay Somani v. Registrar of Companies, West Bengal [2011] 167 Comp Cas 367 (Cal). P. 535
Scheme of amalgamation --Where no meeting of unsecured creditors had been convened to consider a scheme of amalgamation, could the court decide on how their interest is to be taken care of under the scheme?-- UB Nizam Breweries P. Ltd., In re [2011] 167 Comp Cas 562 (Karn). P. 536
Winding up --Where liability was admitted but was not discharged by a profit-making company, could a petition for winding up be filed against it on the ground of its inability to pay the debt?-- Hoe Leong Corporation Ltd. v. Vaishnovi Infrastructure Engineering P. Ltd. [2011] 167 Comp Cas 324 (Mad). P. 536
Income-tax
Business expenditure --Accounting--Can the assessee make provision for future losses in accordance with the Accounting Standards, for possible defects in the different project works undertaken by it? Where the company followed completed-contract method of accounting, would the provision for losses be an allowable deduction?-- CIT v. Triveni Engineering and Industries Ltd. [2011] 336 ITR 374 (Delhi). P. 537
Company --Book profits--Under section 115JB is an assessee entitled to set off of brought-forward losses when such brought forward losses were adjusted during the year through a reduction of share capital?-- CIT v. Sumi Motherson Innovative Engineering Ltd. [2011] 336 ITR 321 (Delhi). P. 539
Depreciation --Is shuttering material used in construction an integrated component forming a plant eligible for 100 per cent. depreciation under the first proviso to section 32(1)(ii) of the Income-tax Act, 1961?-- CIT v. Vijaya Enterprises [2011] 243 CTR (AP) 488. P. 540
Firm --Status--Where the Assessing Officer treated the assessee as an association of persons since the partnership deed had not been filed along with the return, and, hence, disallowed the claim of deduction on account of salary and interest paid to the partners under section 40(b) of the Income-tax Act, 1961, would the fact that the deed was filed during assessment proceedings be sufficient compliance with procedural requirements?-- CIT v. Nand Lal Labhu Ram [2011] 336 ITR 303 (P&H). P. 540
Income from house property --Annual letting value--Where the assessee-landlord had taken a large amount of security deposit disproportionate to the monthly rent charged, can a notional interest charged on the security deposit be treated as income from house property under section 23 of the Income-tax Act, 1961?-- CIT v. K. Streetlite Electric Corporation [2011] 336 ITR 348 (P&H). P. 541
Penalty --Concealment of income--Where the assessee was unable to point out that she had disclosed the surrendered amount in the return or that there was no concealment or that full particulars had been disclosed by her, could levy of penalty under section 271(1)(c) of the Act be justified?-- Shveta Nanda v. CIT [2011] 336 ITR 298 (P&H). P. 542
Unexplained income --Firm--Where the assessee-firm failed to explain the lower gross profit in the impugned year and the amount of alleged gifts received in that year was almost equal to difference in declared gross profit, can the gifts supposedly received from non-resident Indians by the partners of the firm be treated as the undisclosed income of the firm?-- CIT v. Deepak Iron and Steel Rolling Mills [2011] 336 ITR 307 (P&H). P. 543
Intellectual Property Rights
Trademark --Infringement--Where a person's trademark is a common word but has become world renowned in respect of certain products, would injunction be granted against another who deals in completely different products and uses that word as part of its corporate name though not as a trademark? Would one's registration of a generic name or a common word as trademark for a product that he does not deal in, confer ipso facto exclusivity over that mark so as to prevent others from using the mark or word in respect of that product?-- Shell Brands International AG v. Pradeep Jain Proprietor Shell Exports 2011 (47) PTC 175 (Delhi). P. 545
Labour Law
Doctors --Strike--Is it permissible for doctors and others connected with the AIIMS to go on strike in view of the significance attached to health under article 21 of the Constitution of India?-- Scheduled Castes and Scheduled Tribes Medical Association, Delhi v. Union of India 2011 IV LLJ 237 (Delhi). P. 545
E. S. I. liability --Limitation--Is proceedings under section 45-A of the Employees' State Insurance Act, 1948 subject to the limitation prescribed under section 77(1-A)(b) of the Act?-- Syndicate Printers (rep. by its proprietor), V. Chockalingam v. Regional Director, ESI Corporation 2011 IV LLJ 149 (Mad). P. 546
Minimum wages --Can claim for minimum wages be made and entertained in an application under section 33-C(2) of the Industrial Disputes Act, 1947?-- Commissioner, Kadambathur Panchayat Union, Kadambathur v. Loganayahi 2011 IV LLJ 97 (Mad). P. 546
Transferee company --Liability--Would a transferee of an industrial unit be liable to pay the provident fund contributions of the transferor company under section 17-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 when the transfer was by operation of law and the transferee carried on an entirely different manufacturing activity?-- Tayal Energy Ltd., Goindwal Sahib, District Tarn Taran v. Regional Provident Fund Commissioner, Employees' Provident Fund Organisation, Amritsar 2011 IV LLJ 298 (P&H). P. 547
Sales tax and VAT
Dealer --Is the sale of un-serviceable machinery and spare parts by a dealer engaged in manufacture and sale of iron and steel products taxable under Orissa Sales Tax Act, 1947?-- State of Orissa v. Steel Authority of India Ltd. [2011] 44 VST 50 (Orissa). P. 548
Entry tax --Is a dealer in automobiles importing vehicles into State for sale entitled to refund of excess of entry tax paid over sales tax under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990?-- Commercial Tax Officer, Peelamedu South Assessment Circle, Coimbatore v. Coimbatore Auto Carage (P.) Ltd. [2011] 45 VST 69 (Mad). P. 549
Reassessment --Would initiation of reassessment proceedings for an earlier year merely on the basis of inference from certain material available for a subsequent year be justified?-- Swadeshi Udyog v. Trade Tax Officer, Kanpur [2011] 45 VST 111 (All). P. 549
Taxable turnover --Can transportation charges incurred by a dealer and reimbursed to him by his customers be deducted from the dealer's turnover to arrive at his taxable turnover?-- APCO Concrete Block and Allied Products v. Deputy Commissioner of Commercial Taxes, Audit 1, DVO, Bangalore [2011] 44 VST 312 (Karn). P. 550
Works contract --Would processing exposed photographic film rolls into negatives and converting the negatives to photographs amount to works contract under the Assam General Sales Tax Act, 1993?-- S. S. Photographic Lab Pvt. Ltd. v. State of Assam [2011] 44 VST 39 (Gauhati). P. 551
Service tax
Appeal --Pre-deposit--Where a contract nowhere stated that the prices of the supplies supplied by the service recipient would be recovered from the bills payable, would waiver of pre-deposit be granted on a question whether the cost of the supplies would be included in the taxable value of services or not?-- VPR Mining Infra Pvt. Ltd. v. Union of India [2011] 45 VST 229 (AP). P. 552
CENVAT credit --Could CENVAT credit of central excise duty paid on cement, TMT bars used in the construction of warehouses be availed of by an assessee who was rendering storage and warehousing services under rule 2(k) and (l) of the CENVAT Credit Rules, 2004? Could penalty be levied under rule 15(2) of the CENVAT Credit Rules, 2004 when there was no finding with regard to suppression of fact and irregular claim of CENVAT credit by the assessee?-- CCE, Visakhapatnam II v. Sai Samhita Storages (P.) Ltd. [2011] 45 VST 467 (AP). P. 553
Miscellaneous
Court-fee --Where more than one person have joined hands in filing a single petition to seek relief on distinct and separate causes of action, should each of the petitioners be required to make payment of court-fees separately?-- Rakesh Gautam v. State of M. P. [2011] AIR 2011 MP 170. P. 554
Public document --Could an unregistered and unstamped partition deed which has been marked as an exhibit in a suit be considered as a public document under section 74 of the Evidence Act, 1872, and be admissible as an evidence in another suit for a collateral purpose?-- Smt. Mamta Awasthy v. Ajay Kumar Shrivastava [2011] AIR 2011 MP 166. P. 554
Digest of decisions of Tribunal and other Forums
Central Excise & Customs
Excise duty --Exemption--Could the extended period of limitation be invoked in a case where the assessee, a manufacturer of portland cement, used the brand name of another cement company but had claimed exemption under Notification No. 1/93-CE, dated February 28, 1993 as amended by Notification No. 16/97-CE, dated April 1, 1997?-- CCE v. Pratap Continental P. Ltd. [2011] 10 GSTR 498 (CESTAT-New Delhi). P. 556
Excise duty --MODVAT credit--Could an adjudication order with regard to wrongful availment of MODVAT credit be set aside owing to non-observance of the Tribunal's direction to permit cross-examination of a witness, which direction had become final owing to non-challenge by the Department?-- Krishna Steel Industries v. CCE [2011] 11 GSTR 112 (CESTAT-Mumbai). P. 557
Income-tax
Business expenditure --Would the expenditure incurred on payment of keyman insurance premium for two of the working directors of the assessee-company be disallowed when the services of the directors had significant effect on the smooth functioning and profitability of the assessee's business and there was no dispute with regard to receipt of the maturity amount which was offered for taxation?-- ITO v. Radha Raj Ispat P. Ltd. [2011] 11 ITR (Trib) 243 (Delhi). P. 558
Capital or revenue expenditure --Where an assessee, engaged in the business of rendering software services to its clients, had availed the services of another company in the course of its business, would the expenditure incurred on engaging such services, which was incurred wholly and exclusively for the purpose of the assessee's business be treated as revenue expenditure when the assessee had neither acquired any capital asset nor any benefit of enduring nature?-- Deputy CIT v. Lifetree Cyberworks P. Ltd. [2011] 11 ITR (Trib) 294 (Delhi). P. 558
Charitable purposes --Would the accumulation of surplus in the hands of the assessee-trust, created for the purpose of promoting educational interests among the Christian community, lead to a conclusion that such institutions exist for the purpose of making profits and not for educational purposes and, hence, not liable for registration?-- St. Mary's Christian Charitable Trust v. ITO [2011] 11 ITR (Trib) 205 (Chennai). P. 559
Exemption --Export--What are all the conditions to be fulfilled for the purpose of claiming exemption under section 10B of the Income-tax Act? Where software developed by an assessee with the help of the infrastructure and equipment provided by another company were exported by the assessee and the sale proceeds was received in convertible foreign exchange, would the assessee be eligible for exemption under section 10B of the Income-tax Act?-- ITO v. Techdrive (India) P. Ltd. [2011] 11 ITR (Trib) 298 (Delhi). P. 561
Rectification of mistake --Does the amendment to section 143(1) of the Income-tax Act with effect from June 1, 1999 empower the Assessing Officer the authority to rectify the intimation issued to the assessee under section 143(1) for the purpose of re-determining the income shown by the assessee in its return of income?-- Anshul Singal v. Asst. CIT [2011] 11 ITR (Trib) 143 (Delhi). P. 562
Service tax
Liability --Services received from outside India--Where an assessee had paid technical know-how fees and royalty charges to its group companies situated outside India between September 2004 and December 2005, would it be liable to service tax when the provisions of section 66A providing for payment of service tax by the recipient of services rendered by a non-resident were included in the Finance Act, 1994, with effect from April 18, 2006?-- ABB Ltd. v. CCE, Bangalore [2011] 45 VST 89 (CESTAT-Bangalore). P. 562
Penalty --Where the question of liability to pay service tax on the service of transportation of petroleum products rendered by truck owners for the assessee-petroleum corporation was pending clarification before the Board, would the assessee, which immediately on being informed of its liability got itself registered and paid the service tax dues, be liable to penalty?-- Hindustan Petroleum Corporation Limited v. CCE, Mumbai-II [2011] 45 VST 86 (CESTAT-Mumbai). P. 563
Port services --Where the assessee-port trust entered into an agreement with a company for operation and management of its container terminal and received royalty charges from a portion of gross revenue earned by the company, licence fees for use and occupation of project site, upfront charges for permitting container handling operations and for transfer of assessee's equipment, rentals for letting out jetties and estate rentals for the use of its land, building, sheds and godowns owned by it in the port area in terms of the agreement, would the assessee be liable to service tax under the head "port services"?-- Cochin Port Trust v. CCE, Cochin [2011] 45 VST 106 (CESTAT-Bang). P. 564
Consumer Disputes
Ba nking and financial institutions services --Where due to a technical fault the ATM card issued by a bank did not allow a customer to withdraw money despite her having sufficient funds, would the bank be liable for deficiency in service?-- Jasmine W. Surendra v. Canara Bank IV [2011] CPJ 179 (NC). P. 565
Cable services --Where, as per the terms and conditions of the cable television service, the customer was obliged to request the channel package for choice of channels, would the service provider be liable for deficiency in service for not granting a special package automatically?-- Kishore Kumar Deshmukh v. Tata Sky Ltd. IV [2011] CPJ 15 (SCDRC) P. 566
Manufacturing defect --Where invoice issued did not contain any warranty or manufacturer's details, is a complaint after eight months of purchase of the product maintainable on grounds of manufacturing defect?-- Sandeep Bhalla v. Ashoka Electronics IV [2011] CPJ 138 (NC). P. 566
Volume 30 : Part 7 (Issue dated : 1-12-2011)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Corporate law
Indian Competition Act: thresholds of combination--Souvik Chatterji, Asst. Professor and Harshit Anand, National Law University, Jodhpur
The competition agencies all across the world have generally three broad responsibilities - addressing anti-competitive agreements, abuse of dominance and anti-competitive combinations. With that amount of work load it is not possible on the part of these agencies to bring every combination under their scanner. Competition Commission of India is also no exception. In India, section 5 of the Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007, has created thresholds crossing which the combining entities are supposed to compulsorily notify the combination to the Competition Commission of India. This article examines the thresholds and the efficacy of having such thresholds under the Indian Competition Act. P. 510
Digest of recent decisions
Central Excise & Customs
Customs duty --Does the writ court have jurisdiction to adjudicate issues relating to quantum of penalty imposed and the rationale behind imposition of such penalty when the Settlement Commission had not contravened any law or its order was in any way perverse, arbitrary or without jurisdiction?-- Marshal Power and Telcom (India) Ltd. v. Customs and Central Excise Settlement Commission [2011] 10 GSTR 70 (Mad). P. 530
Customs duty --Confiscation of duty--Where the Settlement Commission, after affording adequate opportunity and after considering the evidence had arrived at certain conclusions, could the High Court re-appreciate the evidence and come to a different conclusion in the absence of any concrete material to believe otherwise?-- Decent Enterprises v. Union of India [2011] 10 GSTR 166 (Mad). P. 531
Excise duty --Exemption--Would lifting water from well to overhead tank with the aid of electric motor, which activity was integral to the process of conversion of raw material to finished goods, amount to manufacturing with the aid of power and render the assessee in-eligible to claim nil rate of duty under Sub-Heading 3805.19?-- CCE v. Gurukripa Resins P. Ltd. [2011] 10 GSTR 1 (SC). P. 532
Excise duty --Short-payment of duty--Would restrictions imposed on an assessee by the authorities for a limited period because of the assessee's violation and subsequent payment of duty when confronted with a scrutiny, which showed a conscious attempt to gain an undue advantage, amount to arbitrary exercise of power?-- Reil Electricals India Ltd. v. Member (Central Excise), Central Board of Excise and Customs [2011] 10 GSTR 89 (Mad). P. 533
Corporate Law
Interlocutory applications --Is it necessary to issue notice of an application to parties who were already contesting in pending proceedings and represented by advocate?-- Official Liquidator of Murudeshwara Foods and Exports Ltd. (in liquidation) v. K. Ananda Shetty [2011] 167 Comp Cas 422 (Karn). P. 534
Offences and prosecution --Is a complaint of violation of section 295 of the Companies Act, 1956, filed in 2010 for offences committed in 2008 barred by limitation?-- Sanjay Somani v. Registrar of Companies, West Bengal [2011] 167 Comp Cas 367 (Cal). P. 535
Scheme of amalgamation --Where no meeting of unsecured creditors had been convened to consider a scheme of amalgamation, could the court decide on how their interest is to be taken care of under the scheme?-- UB Nizam Breweries P. Ltd., In re [2011] 167 Comp Cas 562 (Karn). P. 536
Winding up --Where liability was admitted but was not discharged by a profit-making company, could a petition for winding up be filed against it on the ground of its inability to pay the debt?-- Hoe Leong Corporation Ltd. v. Vaishnovi Infrastructure Engineering P. Ltd. [2011] 167 Comp Cas 324 (Mad). P. 536
Income-tax
Business expenditure --Accounting--Can the assessee make provision for future losses in accordance with the Accounting Standards, for possible defects in the different project works undertaken by it? Where the company followed completed-contract method of accounting, would the provision for losses be an allowable deduction?-- CIT v. Triveni Engineering and Industries Ltd. [2011] 336 ITR 374 (Delhi). P. 537
Company --Book profits--Under section 115JB is an assessee entitled to set off of brought-forward losses when such brought forward losses were adjusted during the year through a reduction of share capital?-- CIT v. Sumi Motherson Innovative Engineering Ltd. [2011] 336 ITR 321 (Delhi). P. 539
Depreciation --Is shuttering material used in construction an integrated component forming a plant eligible for 100 per cent. depreciation under the first proviso to section 32(1)(ii) of the Income-tax Act, 1961?-- CIT v. Vijaya Enterprises [2011] 243 CTR (AP) 488. P. 540
Firm --Status--Where the Assessing Officer treated the assessee as an association of persons since the partnership deed had not been filed along with the return, and, hence, disallowed the claim of deduction on account of salary and interest paid to the partners under section 40(b) of the Income-tax Act, 1961, would the fact that the deed was filed during assessment proceedings be sufficient compliance with procedural requirements?-- CIT v. Nand Lal Labhu Ram [2011] 336 ITR 303 (P&H). P. 540
Income from house property --Annual letting value--Where the assessee-landlord had taken a large amount of security deposit disproportionate to the monthly rent charged, can a notional interest charged on the security deposit be treated as income from house property under section 23 of the Income-tax Act, 1961?-- CIT v. K. Streetlite Electric Corporation [2011] 336 ITR 348 (P&H). P. 541
Penalty --Concealment of income--Where the assessee was unable to point out that she had disclosed the surrendered amount in the return or that there was no concealment or that full particulars had been disclosed by her, could levy of penalty under section 271(1)(c) of the Act be justified?-- Shveta Nanda v. CIT [2011] 336 ITR 298 (P&H). P. 542
Unexplained income --Firm--Where the assessee-firm failed to explain the lower gross profit in the impugned year and the amount of alleged gifts received in that year was almost equal to difference in declared gross profit, can the gifts supposedly received from non-resident Indians by the partners of the firm be treated as the undisclosed income of the firm?-- CIT v. Deepak Iron and Steel Rolling Mills [2011] 336 ITR 307 (P&H). P. 543
Intellectual Property Rights
Trademark --Infringement--Where a person's trademark is a common word but has become world renowned in respect of certain products, would injunction be granted against another who deals in completely different products and uses that word as part of its corporate name though not as a trademark? Would one's registration of a generic name or a common word as trademark for a product that he does not deal in, confer ipso facto exclusivity over that mark so as to prevent others from using the mark or word in respect of that product?-- Shell Brands International AG v. Pradeep Jain Proprietor Shell Exports 2011 (47) PTC 175 (Delhi). P. 545
Labour Law
Doctors --Strike--Is it permissible for doctors and others connected with the AIIMS to go on strike in view of the significance attached to health under article 21 of the Constitution of India?-- Scheduled Castes and Scheduled Tribes Medical Association, Delhi v. Union of India 2011 IV LLJ 237 (Delhi). P. 545
E. S. I. liability --Limitation--Is proceedings under section 45-A of the Employees' State Insurance Act, 1948 subject to the limitation prescribed under section 77(1-A)(b) of the Act?-- Syndicate Printers (rep. by its proprietor), V. Chockalingam v. Regional Director, ESI Corporation 2011 IV LLJ 149 (Mad). P. 546
Minimum wages --Can claim for minimum wages be made and entertained in an application under section 33-C(2) of the Industrial Disputes Act, 1947?-- Commissioner, Kadambathur Panchayat Union, Kadambathur v. Loganayahi 2011 IV LLJ 97 (Mad). P. 546
Transferee company --Liability--Would a transferee of an industrial unit be liable to pay the provident fund contributions of the transferor company under section 17-B of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 when the transfer was by operation of law and the transferee carried on an entirely different manufacturing activity?-- Tayal Energy Ltd., Goindwal Sahib, District Tarn Taran v. Regional Provident Fund Commissioner, Employees' Provident Fund Organisation, Amritsar 2011 IV LLJ 298 (P&H). P. 547
Sales tax and VAT
Dealer --Is the sale of un-serviceable machinery and spare parts by a dealer engaged in manufacture and sale of iron and steel products taxable under Orissa Sales Tax Act, 1947?-- State of Orissa v. Steel Authority of India Ltd. [2011] 44 VST 50 (Orissa). P. 548
Entry tax --Is a dealer in automobiles importing vehicles into State for sale entitled to refund of excess of entry tax paid over sales tax under the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990?-- Commercial Tax Officer, Peelamedu South Assessment Circle, Coimbatore v. Coimbatore Auto Carage (P.) Ltd. [2011] 45 VST 69 (Mad). P. 549
Reassessment --Would initiation of reassessment proceedings for an earlier year merely on the basis of inference from certain material available for a subsequent year be justified?-- Swadeshi Udyog v. Trade Tax Officer, Kanpur [2011] 45 VST 111 (All). P. 549
Taxable turnover --Can transportation charges incurred by a dealer and reimbursed to him by his customers be deducted from the dealer's turnover to arrive at his taxable turnover?-- APCO Concrete Block and Allied Products v. Deputy Commissioner of Commercial Taxes, Audit 1, DVO, Bangalore [2011] 44 VST 312 (Karn). P. 550
Works contract --Would processing exposed photographic film rolls into negatives and converting the negatives to photographs amount to works contract under the Assam General Sales Tax Act, 1993?-- S. S. Photographic Lab Pvt. Ltd. v. State of Assam [2011] 44 VST 39 (Gauhati). P. 551
Service tax
Appeal --Pre-deposit--Where a contract nowhere stated that the prices of the supplies supplied by the service recipient would be recovered from the bills payable, would waiver of pre-deposit be granted on a question whether the cost of the supplies would be included in the taxable value of services or not?-- VPR Mining Infra Pvt. Ltd. v. Union of India [2011] 45 VST 229 (AP). P. 552
CENVAT credit --Could CENVAT credit of central excise duty paid on cement, TMT bars used in the construction of warehouses be availed of by an assessee who was rendering storage and warehousing services under rule 2(k) and (l) of the CENVAT Credit Rules, 2004? Could penalty be levied under rule 15(2) of the CENVAT Credit Rules, 2004 when there was no finding with regard to suppression of fact and irregular claim of CENVAT credit by the assessee?-- CCE, Visakhapatnam II v. Sai Samhita Storages (P.) Ltd. [2011] 45 VST 467 (AP). P. 553
Miscellaneous
Court-fee --Where more than one person have joined hands in filing a single petition to seek relief on distinct and separate causes of action, should each of the petitioners be required to make payment of court-fees separately?-- Rakesh Gautam v. State of M. P. [2011] AIR 2011 MP 170. P. 554
Public document --Could an unregistered and unstamped partition deed which has been marked as an exhibit in a suit be considered as a public document under section 74 of the Evidence Act, 1872, and be admissible as an evidence in another suit for a collateral purpose?-- Smt. Mamta Awasthy v. Ajay Kumar Shrivastava [2011] AIR 2011 MP 166. P. 554
Digest of decisions of Tribunal and other Forums
Central Excise & Customs
Excise duty --Exemption--Could the extended period of limitation be invoked in a case where the assessee, a manufacturer of portland cement, used the brand name of another cement company but had claimed exemption under Notification No. 1/93-CE, dated February 28, 1993 as amended by Notification No. 16/97-CE, dated April 1, 1997?-- CCE v. Pratap Continental P. Ltd. [2011] 10 GSTR 498 (CESTAT-New Delhi). P. 556
Excise duty --MODVAT credit--Could an adjudication order with regard to wrongful availment of MODVAT credit be set aside owing to non-observance of the Tribunal's direction to permit cross-examination of a witness, which direction had become final owing to non-challenge by the Department?-- Krishna Steel Industries v. CCE [2011] 11 GSTR 112 (CESTAT-Mumbai). P. 557
Income-tax
Business expenditure --Would the expenditure incurred on payment of keyman insurance premium for two of the working directors of the assessee-company be disallowed when the services of the directors had significant effect on the smooth functioning and profitability of the assessee's business and there was no dispute with regard to receipt of the maturity amount which was offered for taxation?-- ITO v. Radha Raj Ispat P. Ltd. [2011] 11 ITR (Trib) 243 (Delhi). P. 558
Capital or revenue expenditure --Where an assessee, engaged in the business of rendering software services to its clients, had availed the services of another company in the course of its business, would the expenditure incurred on engaging such services, which was incurred wholly and exclusively for the purpose of the assessee's business be treated as revenue expenditure when the assessee had neither acquired any capital asset nor any benefit of enduring nature?-- Deputy CIT v. Lifetree Cyberworks P. Ltd. [2011] 11 ITR (Trib) 294 (Delhi). P. 558
Charitable purposes --Would the accumulation of surplus in the hands of the assessee-trust, created for the purpose of promoting educational interests among the Christian community, lead to a conclusion that such institutions exist for the purpose of making profits and not for educational purposes and, hence, not liable for registration?-- St. Mary's Christian Charitable Trust v. ITO [2011] 11 ITR (Trib) 205 (Chennai). P. 559
Exemption --Export--What are all the conditions to be fulfilled for the purpose of claiming exemption under section 10B of the Income-tax Act? Where software developed by an assessee with the help of the infrastructure and equipment provided by another company were exported by the assessee and the sale proceeds was received in convertible foreign exchange, would the assessee be eligible for exemption under section 10B of the Income-tax Act?-- ITO v. Techdrive (India) P. Ltd. [2011] 11 ITR (Trib) 298 (Delhi). P. 561
Rectification of mistake --Does the amendment to section 143(1) of the Income-tax Act with effect from June 1, 1999 empower the Assessing Officer the authority to rectify the intimation issued to the assessee under section 143(1) for the purpose of re-determining the income shown by the assessee in its return of income?-- Anshul Singal v. Asst. CIT [2011] 11 ITR (Trib) 143 (Delhi). P. 562
Service tax
Liability --Services received from outside India--Where an assessee had paid technical know-how fees and royalty charges to its group companies situated outside India between September 2004 and December 2005, would it be liable to service tax when the provisions of section 66A providing for payment of service tax by the recipient of services rendered by a non-resident were included in the Finance Act, 1994, with effect from April 18, 2006?-- ABB Ltd. v. CCE, Bangalore [2011] 45 VST 89 (CESTAT-Bangalore). P. 562
Penalty --Where the question of liability to pay service tax on the service of transportation of petroleum products rendered by truck owners for the assessee-petroleum corporation was pending clarification before the Board, would the assessee, which immediately on being informed of its liability got itself registered and paid the service tax dues, be liable to penalty?-- Hindustan Petroleum Corporation Limited v. CCE, Mumbai-II [2011] 45 VST 86 (CESTAT-Mumbai). P. 563
Port services --Where the assessee-port trust entered into an agreement with a company for operation and management of its container terminal and received royalty charges from a portion of gross revenue earned by the company, licence fees for use and occupation of project site, upfront charges for permitting container handling operations and for transfer of assessee's equipment, rentals for letting out jetties and estate rentals for the use of its land, building, sheds and godowns owned by it in the port area in terms of the agreement, would the assessee be liable to service tax under the head "port services"?-- Cochin Port Trust v. CCE, Cochin [2011] 45 VST 106 (CESTAT-Bang). P. 564
Consumer Disputes
Ba nking and financial institutions services --Where due to a technical fault the ATM card issued by a bank did not allow a customer to withdraw money despite her having sufficient funds, would the bank be liable for deficiency in service?-- Jasmine W. Surendra v. Canara Bank IV [2011] CPJ 179 (NC). P. 565
Cable services --Where, as per the terms and conditions of the cable television service, the customer was obliged to request the channel package for choice of channels, would the service provider be liable for deficiency in service for not granting a special package automatically?-- Kishore Kumar Deshmukh v. Tata Sky Ltd. IV [2011] CPJ 15 (SCDRC) P. 566
Manufacturing defect --Where invoice issued did not contain any warranty or manufacturer's details, is a complaint after eight months of purchase of the product maintainable on grounds of manufacturing defect?-- Sandeep Bhalla v. Ashoka Electronics IV [2011] CPJ 138 (NC). P. 566
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