CBDT Order 194 of 2011
CBDT posts three officers as Director in Board on deputation basis
CASE LAWS
2011-TIOL-808-HC-MUM-IT + Manjula story
CIT, Mumbai Vs Manjula J Shah, Mumbai (Dated: October 11, 2011)
Income tax – Sections 2(42A), 48, 49(1)(ii), 55(1) – Whether while computing the indexed cost of acquisition of the asset sold which was acquired under a gift, the assessee would be entitled to the benefit of indexation from the date of purchase of the asset by the previous owner. - Revenue's appeal dismissed :BOMBAY HIGH COURT
2011-TIOL-807-HC-DEL-IT
Nancy Crafts Ltd Vs CIT (Dated: September 8, 2011)
Income Tax - Section 147/148 - Whether notice u/s 148 can be issued to inquire an issue from a different angle after the expiry of four years. - Assessee's appeal allowed :DELHI HIGH COURT
2011-TIOL-806-HC-DEL-IT
CIT Vs Navyug Promoters Pvt Ltd (Dated: November 21, 2011)
Income Tax- Section 2(22)(e) - Whether an assessee who is not a shareholder of the company, from which he received a loan or an advance can be covered by the definition of the word " deemed dividend" u/s Sec.2(22)(e). - Revenue's Appeal dismissed :DELHI HIGH COURT
2011-TIOL-805-HC-DEL-IT
M/s Sai Industries Ltd Vs ACIT (Dated: November 28, 2011)
Income tax - Section 32 - Lease Back - Whether when it is proved that the asset is not in the name of the person who has leased back the same to the lessor no depreciation can be allowed.- Assessee's appeal dismissed :DELHI HIGH COURT
2011-TIOL-804-HC-DEL-IT
CIT, New Delhi Vs Aerens Infrastructure & Technology Ltd (Dated: September 19, 2011)
Income Tax - Whether 142A - Whether reference u/s 142A can be made by AO without recording that there was an excess expenditure incurred by the assessee in acquiring the articles. - Revenue's appeal dismissed :DELHI HIGH COURT
SERVICE TAX SECTION
2011-TIOL-802-HC-KAR-ST + United story
M/s United Communications UDUPI Vs CCE, Manalore (Dated: October 15, 2011)
Service Tax - Tax with interest paid before SCN - non payment of tax when liability is known - Penalty @ 25 percent payable - Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he had paid the differential duty with interest before issue of show cause notice is unsustainable.
No penalty under both Section 76 and 78: it is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. Therefore, in this case the penalty is to be construed under Section 78. To that extent, the appeal succeeds. Once Section 78 is attracted, proviso to Section 78 makes it clear, a person who is liable to pay penalty in addition to payment of tax and interest, if he pays the said tax and interest within 30 days from the date of determination of the liability by way of an order the penalty payable is only 25%. This statutory provision has been ignored both by the Assessing Authority as well as by the Tribunal.: KARNATAKA HIGH COURT
2011-TIOL-801-HC-KAR-ST
M/s World View Vision Vs CCE, Bangalore (Dated: October 15, 2011)
Service Tax - Tax with interest paid before SCN - non payment of tax when liability is known - Penalty @ 25 percent payable - Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he had paid the differential duty with interest before issue of show cause notice is unsustainable.
No penalty under both Section 76 and 78: it is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. Therefore, in this case the penalty is to be construed under Section 78. To that extent, the appeal succeeds. Once Section 78 is attracted, proviso to Section 78 makes it clear, a person who is liable to pay penalty in addition to payment of tax and interest, if he pays the said tax and interest within 30 days from the date of determination of the liability by way of an order the penalty payable is only 25%. This statutory provision has been ignored both by the Assessing Authority as well as by the Tribunal.: KARNATAKA HIGH COURT
2011-TIOL-1598-CESTAT-MAD
M/s Sindhu Cargo Services Ltd Vs CST, Chennai (Dated: September 5, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Business Auxiliary Service – Promoting / Marketing the services provided by various Airlines/Steamer Agents – No prima facie case made out for waiver of pre-deposit – Rs 25 lakhs ordered to be deposited. - Pre-deposit ordered: CHENNAI CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-803-HC-P&H-CX
Wrigley India Pvt Ltd Vs CCE, Chandigarh (Dated: November 8, 2011)
Central Excise - Penalty - tribunal has not given any finding as to why penalty is imposable - matter remanded: Tribunal has not given any finding as to why the penalty of equal amount in terms of Rule 13(2) read with Section 11AC of the Central Excise Act, 1944 is imposable when the revenue has accepted the order of the Adjudicating Authority for the earlier period. It has been recorded therein that there was no mala fide intention in availing Modvat credit. Therefore, the order of the Tribunal in imposing penalty of the equivalent amount as that of the duty is not sustainable. The matter is remitted back to the Tribunal to consider the question as to whether any penalty is imposable keeping in view the earlier order of the Adjudicating Authority and the extent & nature of default, if any, committed by the appellant.: PUNJAB AND HARYANA HIGH COURT
2011-TIOL-1600-CESTAT-MUM + Total story
M/s Total Oil India Pvt Ltd Vs CCE, Belapur (Dated: October 10, 2011)
Cenvatted capital goods destroyed due to natural causes in year 2005 - no provision in law to seek reversal of Cenvat credit initially availed - notfn. 39/2007-CE(N.T) requiring depreciated value to be taken cannot be applied retrospectively - applying compensation received from insurance company as value of capital goods is also unsustainable in law - assessee clearing such capital goods on scrap value on payment of duty is proper : MUMBAI CESTAT
2011-TIOL-1599-CESTAT-MAD
CCE, Chennai Vs M/s Annapoorna Re-Rolling (P) Ltd (Dated: August 18, 2011)
Central Excise – CENVAT Credit – Exemption under Notification NO 8/2003 CE – Non-payment of duty on inputs and finished goods lying in stock as on 31.3.2005 and 31.3.2006 - Lower appellate authority's order setting aside the demand is not sustainable in view of the Supreme Court's order in case of Albert David Ltd – Revenue appeal allowed partly by confirming the demand and setting aside penalty.- Appeal allowed: CHENNAI CESTAT
CUSTOMS SECTION
2011-TIOL-1597-CESTAT-AHM
M/s Kunal Travels (Cargo) Vs CC, Kandla (Dated: May 13, 2011)
Customs - CHA - Prohibition of work of CHA under Regulation 21 of the CHALR, 2004 for filing shipping bill for export of non-basmati rice in the guise of Indian basmati rice - CHA should exercise such supervisions as necessary to ensure the proper conduct of person sought to be appointed to act on behalf of the exporter as per Regulation 19 - The argument of the appellant that they are not responsible for the conduct or antecedents of such person is not acceptable - No merit in the appellant's case. - Appeal Rejected : AHMEDABAD CESTAT
CBDT posts three officers as Director in Board on deputation basis
CASE LAWS
2011-TIOL-808-HC-MUM-IT + Manjula story
CIT, Mumbai Vs Manjula J Shah, Mumbai (Dated: October 11, 2011)
Income tax – Sections 2(42A), 48, 49(1)(ii), 55(1) – Whether while computing the indexed cost of acquisition of the asset sold which was acquired under a gift, the assessee would be entitled to the benefit of indexation from the date of purchase of the asset by the previous owner. - Revenue's appeal dismissed :BOMBAY HIGH COURT
2011-TIOL-807-HC-DEL-IT
Nancy Crafts Ltd Vs CIT (Dated: September 8, 2011)
Income Tax - Section 147/148 - Whether notice u/s 148 can be issued to inquire an issue from a different angle after the expiry of four years. - Assessee's appeal allowed :DELHI HIGH COURT
2011-TIOL-806-HC-DEL-IT
CIT Vs Navyug Promoters Pvt Ltd (Dated: November 21, 2011)
Income Tax- Section 2(22)(e) - Whether an assessee who is not a shareholder of the company, from which he received a loan or an advance can be covered by the definition of the word " deemed dividend" u/s Sec.2(22)(e). - Revenue's Appeal dismissed :DELHI HIGH COURT
2011-TIOL-805-HC-DEL-IT
M/s Sai Industries Ltd Vs ACIT (Dated: November 28, 2011)
Income tax - Section 32 - Lease Back - Whether when it is proved that the asset is not in the name of the person who has leased back the same to the lessor no depreciation can be allowed.- Assessee's appeal dismissed :DELHI HIGH COURT
2011-TIOL-804-HC-DEL-IT
CIT, New Delhi Vs Aerens Infrastructure & Technology Ltd (Dated: September 19, 2011)
Income Tax - Whether 142A - Whether reference u/s 142A can be made by AO without recording that there was an excess expenditure incurred by the assessee in acquiring the articles. - Revenue's appeal dismissed :DELHI HIGH COURT
SERVICE TAX SECTION
2011-TIOL-802-HC-KAR-ST + United story
M/s United Communications UDUPI Vs CCE, Manalore (Dated: October 15, 2011)
Service Tax - Tax with interest paid before SCN - non payment of tax when liability is known - Penalty @ 25 percent payable - Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he had paid the differential duty with interest before issue of show cause notice is unsustainable.
No penalty under both Section 76 and 78: it is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. Therefore, in this case the penalty is to be construed under Section 78. To that extent, the appeal succeeds. Once Section 78 is attracted, proviso to Section 78 makes it clear, a person who is liable to pay penalty in addition to payment of tax and interest, if he pays the said tax and interest within 30 days from the date of determination of the liability by way of an order the penalty payable is only 25%. This statutory provision has been ignored both by the Assessing Authority as well as by the Tribunal.: KARNATAKA HIGH COURT
2011-TIOL-801-HC-KAR-ST
M/s World View Vision Vs CCE, Bangalore (Dated: October 15, 2011)
Service Tax - Tax with interest paid before SCN - non payment of tax when liability is known - Penalty @ 25 percent payable - Not maintaining records cannot constitute a sufficient cause under Section 18 to avoid the liability to pay penalty. Therefore, once he has registered himself, filed returns, aware of the liability under the Act, the returns which he filed did not truly represent the facts which constituted a willful mistake. Sub-Section 4 of Section 73 expressly provides the benefit of sub-Section 3 of Section 73 is not attracted to a case falling under sub-Section 4. Therefore, the contention of the assessee that he is not liable to pay penalty as he had paid the differential duty with interest before issue of show cause notice is unsustainable.
No penalty under both Section 76 and 78: it is now well settled that the liability cannot be imposed both under Section 76 and 78. Therefore, in this case the liability to pay penalty is only under Section 78. In fact the proviso to Section 78 makes it very clear that if penalty is payable under this Section, the proviso to Section 76 shall not apply. Thereby no penalty could be imposed both under Sections 76 as well as 78. Therefore, in this case the penalty is to be construed under Section 78. To that extent, the appeal succeeds. Once Section 78 is attracted, proviso to Section 78 makes it clear, a person who is liable to pay penalty in addition to payment of tax and interest, if he pays the said tax and interest within 30 days from the date of determination of the liability by way of an order the penalty payable is only 25%. This statutory provision has been ignored both by the Assessing Authority as well as by the Tribunal.: KARNATAKA HIGH COURT
2011-TIOL-1598-CESTAT-MAD
M/s Sindhu Cargo Services Ltd Vs CST, Chennai (Dated: September 5, 2011)
Service Tax – Stay/Dispensation of pre-deposit – Business Auxiliary Service – Promoting / Marketing the services provided by various Airlines/Steamer Agents – No prima facie case made out for waiver of pre-deposit – Rs 25 lakhs ordered to be deposited. - Pre-deposit ordered: CHENNAI CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-803-HC-P&H-CX
Wrigley India Pvt Ltd Vs CCE, Chandigarh (Dated: November 8, 2011)
Central Excise - Penalty - tribunal has not given any finding as to why penalty is imposable - matter remanded: Tribunal has not given any finding as to why the penalty of equal amount in terms of Rule 13(2) read with Section 11AC of the Central Excise Act, 1944 is imposable when the revenue has accepted the order of the Adjudicating Authority for the earlier period. It has been recorded therein that there was no mala fide intention in availing Modvat credit. Therefore, the order of the Tribunal in imposing penalty of the equivalent amount as that of the duty is not sustainable. The matter is remitted back to the Tribunal to consider the question as to whether any penalty is imposable keeping in view the earlier order of the Adjudicating Authority and the extent & nature of default, if any, committed by the appellant.: PUNJAB AND HARYANA HIGH COURT
2011-TIOL-1600-CESTAT-MUM + Total story
M/s Total Oil India Pvt Ltd Vs CCE, Belapur (Dated: October 10, 2011)
Cenvatted capital goods destroyed due to natural causes in year 2005 - no provision in law to seek reversal of Cenvat credit initially availed - notfn. 39/2007-CE(N.T) requiring depreciated value to be taken cannot be applied retrospectively - applying compensation received from insurance company as value of capital goods is also unsustainable in law - assessee clearing such capital goods on scrap value on payment of duty is proper : MUMBAI CESTAT
2011-TIOL-1599-CESTAT-MAD
CCE, Chennai Vs M/s Annapoorna Re-Rolling (P) Ltd (Dated: August 18, 2011)
Central Excise – CENVAT Credit – Exemption under Notification NO 8/2003 CE – Non-payment of duty on inputs and finished goods lying in stock as on 31.3.2005 and 31.3.2006 - Lower appellate authority's order setting aside the demand is not sustainable in view of the Supreme Court's order in case of Albert David Ltd – Revenue appeal allowed partly by confirming the demand and setting aside penalty.- Appeal allowed: CHENNAI CESTAT
CUSTOMS SECTION
2011-TIOL-1597-CESTAT-AHM
M/s Kunal Travels (Cargo) Vs CC, Kandla (Dated: May 13, 2011)
Customs - CHA - Prohibition of work of CHA under Regulation 21 of the CHALR, 2004 for filing shipping bill for export of non-basmati rice in the guise of Indian basmati rice - CHA should exercise such supervisions as necessary to ensure the proper conduct of person sought to be appointed to act on behalf of the exporter as per Regulation 19 - The argument of the appellant that they are not responsible for the conduct or antecedents of such person is not acceptable - No merit in the appellant's case. - Appeal Rejected : AHMEDABAD CESTAT
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