2011-TIOL-753-HC-DEL-IT + Maxopp story
Maxopp Investment Ltd Vs CIT, New Delhi (Dated: November 18, 2011)
Income tax – Section 147 – Reassessment – Whether when there is an audit objection and a factual mistake is found, the assessment can rightly be reopened.- Assessee's appeal partly allowed : DELHI HIGH COURT
2011-TIOL-752-HC-DEL-IT
Dalmia Brothers Pvt Ltd Vs CIT, Delhi (Dated: November 23, 2011)
Income tax – Section 147 – Reassessment – Whether when there is an audit objection and a factual mistake is found, the assessment can rightly be reopened.- Assessee's appeal dismissed : DELHI HIGH COURT
2011-TIOL-751-HC-DEL-IT
CIT, Delhi Vs B K Bhagat (Dated: November 9, 2011)
Income tax – Sections 10(3), 45, 48 – Whether the receipt on surrender of tenancy right is taxable u/s 45 as capital gain or as casual and non-recurring income u/s 10(3).- Revenue's appeal dismissed : DELHI HIGH COURT
2011-TIOL-750-HC-KAR-IT
CIT, Davangere Vs M/s Gowdara Jayadevappa (Dated: September 23, 2011)
Income tax – Sections 234A, B & C - Whether where the ITAT held that the stock found in excess is not properly inventoried due to humanly impossible exercise to verify the value of each and every item, it is a question of fact which cannot be questioned before the High Court – Whether the imposition of interest u/s 234A, 234B & 234C of the Act is mandatory when there is intentional delay in filing the return - Revenue's appeal partly allowed : KARNATAKA HIGH COURT
2011-TIOL-749-HC-MUM-IT
ICICI Bank Ltd Vs DCIT (Dated: November 6, 2011)
Income tax – Sections 10(23G), 36(1)(vii), 148 – Whether the notice u/s 148 can be issued for the reason which is already considered in the original assessment and for which an appeal is pending before the CIT (A) – Whether when the assessee has disclosed fully and truly all material facts necessary for assessment, the notice issued beyond four years is without jurisdiction by virtue of first proviso to section 147. - Assessee's appeal allowed : BOMBAY HIGH COURT
SERVICE TAX SECTION
2011-TIOL-1564-CESTAT-MUM + Swami story
Swami Samarth Catering Service Vs CCE & CC, Aurangabad (Dated: October 13, 2011)
Appellant providing Outdoor catering services and receiving payments but not discharging service tax liability - since liability accepted, pre-deposit ordered and matter remanded - cum-tax benefits and small scale exemption to be considered by adjudicating authority: MUMBAI CESTAT
2011-TIOL-1563-CESTAT-DEL
M/s Sunrise Education Vs CCE, Kanpur (Dated: October 19, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Commercial Training or Coaching Service – Exemption to Vocational Training Institute under Notification No 24/2004 ST Dated 10.9.2004 – Issue is arguable – 50% of the tax ordered to be deposited. - Pre-deposit ordered: DELHI CESTAT
2011-TIOL-1562-CESTAT-DEL
M/s XL Laboratories Pvt Ltd Vs CCE, Jaipur (Dated: September 15, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Appellant participated in Business Exhibition Service conducted in Vietnam – Whether to be treated as service received from outside India - Business Exhibition Service falls under Rule 3(ii) of Taxation of Services (provided from outside India and received in India) Rules, 2006 and is taxable in the hands of recipient of the service only if the service is performed in India – Prima facie case made out for full waiver of service tax, interest and penalty. - Stay granted: DELHI CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-754-HC-MP-CX + Vinod story
Vinod Kumar Jain Vs UoI (Dated: November 22, 2011)
Central Excise - Summons - Each Non-attendance is a separate offence: the applicant's non-appearance in response to the first three summons constitutes a separate offence committed on each date of non-appearance, calling for three charges on those three counts. This is not to mean that the applicant is to be held guilty of those charges but it only means that he is liable to be tried for each of the three charges under Section 174 of Cr.P.C . for not responding on the three occasions in response to the initial three summons .
Giving false evidence also an offence: if the allegation is that evidence has been fabricated or false evidence has been given by the applicant with an intention that it may ultimately be used in the judicial proceedings is sufficient to constitute the offence under Section 193 of IPC . Again, this is not to mean that the applicant is to be held guilty of that charge but it only means that he is liable to be tried for the same.- Petition Dismissed: MADHYA PRADESH HIGH COURT
2011-TIOL-1560-CESTAT-DEL
M/s Kalyan Agro Industries Corporation Vs CCE, Ludhiana (Dated: April 21, 2011)
Central Excise – Manufacturer of non-alloy steel ingots availing compounded levy scheme – Non-payment of duty and short payment of duty in a few months resulted in levy of 100% penalty by department – Difficulty in running a factory or mere pendency of abatement claim, not a justification for non-payment of duty or part thereof under compounded levy scheme, levy of penalty justified – Though 100% penalty is made effective from May 1, 1998, it cannot be applied retrospectively for amounts which become due prior to the said date – Demand of duty not paid upheld along with levy of interest but penalty reduced to Rs. 20,000/- - Also, demand of duty short paid amounting to Rs. 12,500/- upheld along with levy of interest and 100% penalty as no evidence was produced in support of such short payment - Appeals disposed of : DELHI CESTAT
CUSTOMS SECTION
NOTIFICATIONS
cnt11_082
CBEC notifies Customs exchange rates for December, 2011
dgft10not086
Minimum Export Price of Onions
CIRCULAR
dgft10cir048
Implementation of bar coding on export consignments of pharmaceuticals and drugs with effect from 01.10.2011- Clarification regarding export of bulk drugs
CASE LAW
2011-TIOL-1561-CESTAT-MAD
M/s Mangal Singh Brothers Vs CC, Chennai (Dated: May 10, 2011)
Customs - Import - Used Cars - Transfer of residence - Violation of EXIM Policy - Penalty - At the time of import of the impugned cars, chassis number of vehicle was tampered with, the model number and the year of manufacture were mis-declared for justifying mis-declaration of value and claim for higher depreciation. It is crystal clear from the case records that the impugned car was not imported by a passenger for his personal use coming on transfer of residence for permanent settlement in India but for trading purposes avoiding import restrictions on such vehicles and without paying the appropriate customs duty. As per the facts all three appellants are involved and have had a common interest in the illegal transaction and import of the impugned car contrary to the EXIM policy and contrary to the provisions of the Customs Act, 1962 and in the evasion of customs duty.
HELD - Imposition of penalty justified. For repeat offenders higher penalty is mandated. However, penalty partially reduced. (Para 2) - Appeal partly allowed : CHENNAI CESTAT
Maxopp Investment Ltd Vs CIT, New Delhi (Dated: November 18, 2011)
Income tax – Section 147 – Reassessment – Whether when there is an audit objection and a factual mistake is found, the assessment can rightly be reopened.- Assessee's appeal partly allowed : DELHI HIGH COURT
2011-TIOL-752-HC-DEL-IT
Dalmia Brothers Pvt Ltd Vs CIT, Delhi (Dated: November 23, 2011)
Income tax – Section 147 – Reassessment – Whether when there is an audit objection and a factual mistake is found, the assessment can rightly be reopened.- Assessee's appeal dismissed : DELHI HIGH COURT
2011-TIOL-751-HC-DEL-IT
CIT, Delhi Vs B K Bhagat (Dated: November 9, 2011)
Income tax – Sections 10(3), 45, 48 – Whether the receipt on surrender of tenancy right is taxable u/s 45 as capital gain or as casual and non-recurring income u/s 10(3).- Revenue's appeal dismissed : DELHI HIGH COURT
2011-TIOL-750-HC-KAR-IT
CIT, Davangere Vs M/s Gowdara Jayadevappa (Dated: September 23, 2011)
Income tax – Sections 234A, B & C - Whether where the ITAT held that the stock found in excess is not properly inventoried due to humanly impossible exercise to verify the value of each and every item, it is a question of fact which cannot be questioned before the High Court – Whether the imposition of interest u/s 234A, 234B & 234C of the Act is mandatory when there is intentional delay in filing the return - Revenue's appeal partly allowed : KARNATAKA HIGH COURT
2011-TIOL-749-HC-MUM-IT
ICICI Bank Ltd Vs DCIT (Dated: November 6, 2011)
Income tax – Sections 10(23G), 36(1)(vii), 148 – Whether the notice u/s 148 can be issued for the reason which is already considered in the original assessment and for which an appeal is pending before the CIT (A) – Whether when the assessee has disclosed fully and truly all material facts necessary for assessment, the notice issued beyond four years is without jurisdiction by virtue of first proviso to section 147. - Assessee's appeal allowed : BOMBAY HIGH COURT
SERVICE TAX SECTION
2011-TIOL-1564-CESTAT-MUM + Swami story
Swami Samarth Catering Service Vs CCE & CC, Aurangabad (Dated: October 13, 2011)
Appellant providing Outdoor catering services and receiving payments but not discharging service tax liability - since liability accepted, pre-deposit ordered and matter remanded - cum-tax benefits and small scale exemption to be considered by adjudicating authority: MUMBAI CESTAT
2011-TIOL-1563-CESTAT-DEL
M/s Sunrise Education Vs CCE, Kanpur (Dated: October 19, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Commercial Training or Coaching Service – Exemption to Vocational Training Institute under Notification No 24/2004 ST Dated 10.9.2004 – Issue is arguable – 50% of the tax ordered to be deposited. - Pre-deposit ordered: DELHI CESTAT
2011-TIOL-1562-CESTAT-DEL
M/s XL Laboratories Pvt Ltd Vs CCE, Jaipur (Dated: September 15, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Appellant participated in Business Exhibition Service conducted in Vietnam – Whether to be treated as service received from outside India - Business Exhibition Service falls under Rule 3(ii) of Taxation of Services (provided from outside India and received in India) Rules, 2006 and is taxable in the hands of recipient of the service only if the service is performed in India – Prima facie case made out for full waiver of service tax, interest and penalty. - Stay granted: DELHI CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-754-HC-MP-CX + Vinod story
Vinod Kumar Jain Vs UoI (Dated: November 22, 2011)
Central Excise - Summons - Each Non-attendance is a separate offence: the applicant's non-appearance in response to the first three summons constitutes a separate offence committed on each date of non-appearance, calling for three charges on those three counts. This is not to mean that the applicant is to be held guilty of those charges but it only means that he is liable to be tried for each of the three charges under Section 174 of Cr.P.C . for not responding on the three occasions in response to the initial three summons .
Giving false evidence also an offence: if the allegation is that evidence has been fabricated or false evidence has been given by the applicant with an intention that it may ultimately be used in the judicial proceedings is sufficient to constitute the offence under Section 193 of IPC . Again, this is not to mean that the applicant is to be held guilty of that charge but it only means that he is liable to be tried for the same.- Petition Dismissed: MADHYA PRADESH HIGH COURT
2011-TIOL-1560-CESTAT-DEL
M/s Kalyan Agro Industries Corporation Vs CCE, Ludhiana (Dated: April 21, 2011)
Central Excise – Manufacturer of non-alloy steel ingots availing compounded levy scheme – Non-payment of duty and short payment of duty in a few months resulted in levy of 100% penalty by department – Difficulty in running a factory or mere pendency of abatement claim, not a justification for non-payment of duty or part thereof under compounded levy scheme, levy of penalty justified – Though 100% penalty is made effective from May 1, 1998, it cannot be applied retrospectively for amounts which become due prior to the said date – Demand of duty not paid upheld along with levy of interest but penalty reduced to Rs. 20,000/- - Also, demand of duty short paid amounting to Rs. 12,500/- upheld along with levy of interest and 100% penalty as no evidence was produced in support of such short payment - Appeals disposed of : DELHI CESTAT
CUSTOMS SECTION
NOTIFICATIONS
cnt11_082
CBEC notifies Customs exchange rates for December, 2011
dgft10not086
Minimum Export Price of Onions
CIRCULAR
dgft10cir048
Implementation of bar coding on export consignments of pharmaceuticals and drugs with effect from 01.10.2011- Clarification regarding export of bulk drugs
CASE LAW
2011-TIOL-1561-CESTAT-MAD
M/s Mangal Singh Brothers Vs CC, Chennai (Dated: May 10, 2011)
Customs - Import - Used Cars - Transfer of residence - Violation of EXIM Policy - Penalty - At the time of import of the impugned cars, chassis number of vehicle was tampered with, the model number and the year of manufacture were mis-declared for justifying mis-declaration of value and claim for higher depreciation. It is crystal clear from the case records that the impugned car was not imported by a passenger for his personal use coming on transfer of residence for permanent settlement in India but for trading purposes avoiding import restrictions on such vehicles and without paying the appropriate customs duty. As per the facts all three appellants are involved and have had a common interest in the illegal transaction and import of the impugned car contrary to the EXIM policy and contrary to the provisions of the Customs Act, 1962 and in the evasion of customs duty.
HELD - Imposition of penalty justified. For repeat offenders higher penalty is mandated. However, penalty partially reduced. (Para 2) - Appeal partly allowed : CHENNAI CESTAT
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