2011-TIOL-757-ITAT-MUM + Chattisgarh story
Chattisgarh State Electricity Board Vs ITO, Raipur (Dated: November 30, 2011)
Income Tax - Sections 194I, 201, 201(A) - Whether when State Electricity Board pays for transmission of electricity from point of generation to end-users, such payment constitutes rent within the meaning of Sec 194I - Whether the expressions 'use of an asset' and benefit from an asset carry two different meanings, and thus TDS obligation arises in the former but not in the latter. - Assessee's appeal allowed : MUMBAI ITAT
2011-TIOL-756-ITAT-MUM
M/s Atul Paints & Chemical Co Vs Addl.CIT, Mumbai (Dated: October 31, 2011)
Income Tax - Sections 50C, 263 - Whether an order computing the capital gain after taking into consideration the registered valuer report and the stamp valuation authority rate can be said to be erroneous and prejudicial to the interest of revenue, and if not, then whether the CIT can revise such an order on the basis of material collected subsequent to the assessment proceedings.- Assessee's appeal allowed : MUMBAI ITAT
2011-TIOL-755-ITAT-MUM
DCIT, Mumbai Vs M/s Bombay Dyeing & MFG Co Limited (Dated: September 14, 2011)
Income Tax - Sections 37(1), 115JA - Whether VRS payments made by assessee are revenue expenses - Whether premium paid on redemption of debenture is revenue expenditure when the amount collected via debentures is employed in modernization of the industry - Whether consultancy charges paid to foreign entity for restructuring the business is revenue expenditure - Whether lease equalization charges are required to be excluded from the ambit of book profit u/s 115JA. - Revenue's appeal dismissed : MUMBAI ITAT
2011-TIOL-754-ITAT-MAD
Socio Economic Development Association Vs ITO, Madurai (Dated: October 13, 2011)
Income tax - Section 12AA - Whether when the CIT granted registration u/s 12AA but later on observed that the purpose of the society was to do business activities and not to utilize the amount for charitable purpose, the CIT has rightly cancelled the registration. - Assessee's appeal dismissed : CHENNAI ITAT
2011-TIOL-753-ITAT-MAD
M/s Sterling Agro Products Processing Pvt Ltd Vs ACIT, Chennai (Dated: August 26, 2011)
Income Tax - Section 10B - Whether conversion of gherkins into gherkins pickle amounts to manufacturing in the light of explanation given under section 10B prior to its omission - Whether a decision of coordinate bench which omits to consider the purport of explanation of a given section is binding in another year. - Assessee's appeal allowed : CHENNAI ITAT
CBEC TRANSFER
Order 251 of 2011
CBEC issues transfer order of 5 Commissioners
SERVICE TAX SECTION
2011-TIOL-1645-CESTAT-AHM + Industries story
M/s M K Industries Vs CCE, Daman (Dated: July 22, 2011)
Service Tax – If service tax paid on services obtained from foreign commission agents is admissible as credit, then service tax paid on commission agent's services within the country would also be admissible as credit - Appeal allowed with consequential relief : AHMEDABAD CESTAT
2011-TIOL-1644-CESTAT-AHM
CCE, Ahmedabad Vs M/s Pierlita India Pvt Ltd (Dated: July 28, 2011)
Service Tax – Availment of CENVAT credit of service tax paid on input services for the period from December 2006 to February 2008 in March 2008 – Credit cannot be denied on the ground that it was not availed immediately – No merit in Revenue appeals - Revenue appeal rejected : AHMEDABAD CESTAT
2011-TIOL-1643-CESTAT-AHM
M/s Cadila Pharmaceuticals Ltd Vs CCE, Ahmedabad (Dated: September 29, 2011)
Service Tax - Services utilized for export of goods - Refund - Port services - Storage and Warehousing - Insurance - Technical Testing and Analysis services - Notification No.41/2007-ST, dt.6.10.07 - CENVAT Credit or refund cannot be denied to the service receiver on the ground that the service provider was not authorized by the port. In respect of storage or warehousing service the same is required to be approved by the competent authority for claiming refund of service tax paid. In the case of Technical Testing & Analysis services refund is allowed only when such service is received in terms of written agreement with the buyer. Service receiver to provide evidence regarding payment of insurance for the export goods to claim eligible refund. Adjudicating authority to examine records and pass fresh orders. (Para 2, 4 & 6) - Appeal partially allowed / matter remanded : AHMEDABAD CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-1642-CESTAT-AHM
M/s Hy Tuff Steel Pvt Limited Vs CCE, Vadodara (Dated: August 1, 2011)
Central Excise - Penalty - CENVAT Credit on MS Angles, Channels, beams, Plates, Sheets etc . - In view of the fact that there were decisions taking a view that credit is admissible on these items, it cannot be said that appellant indulged in suppression of facts/ mis-declaration with an intention to evade payment of duty. Therefore, penalty under Section 11AC of Central Excise Act, 1944 cannot be sustained. [ para 5]
Central Excise - Interest - CENVAT Credit on MS Angles, Channels, beams, Plates, Sheets etc. in view of the decision of the Supreme Court in the case of UOI vs. M/s. Ind-Swift Laboratories Limited 2011-TIOL-21-SC-CX , the question as to whether interest is payable in respect of cenvat credit wrongly taken but not utilised has been settled against the appellant. [ para 2] - Appeal partly allowed : AHMEDABAD CESTAT
2011-TIOL-1641-CESTAT-AHM
M/s Enar Chemic Pvt Ltd Vs CCE, Vadodara (Dated: August 26 2011)
Central Excise- exemption – certificate from Drug Controller - it is not in dispute that appellant's product "Di-calcium Phosphate" is a bulk drug and is eligible for the benefit of Notification No 234/86-CE dated 03.04.1986, subject to the condition that certificate from the Drug Controller of Govt. of India is produced within a period as the said officer may allow. It is undisputed that the appellant was pursuing with the Drug Controller of India for issuance of certificate which was ultimately received by the appellant on 15.02.1988. It can be seen that the appellant was vigoursly pursuing with the concerned authorities for issuance of certificate. The said certificate having been issued belatedly by the authorities, cannot be held against the appellant for denying them the benefit, for which otherwise he is eligible . [Para 6, 8] - Appeal Allowed: AHMEDABAD CESTAT
2011-TIOL-1640-CESTAT-AHM
M/s Princeware International Pvt Ltd Vs CCE, Daman, Vapi (Dated: August 25 2011)
Central Excise - CENVAT Credit on MS Channels, Angles, Beams, Flat etc.- Penalty : if an assessee entertains a bonafide belief that he is entitled to avail credit, he cannot be found fault with. Under these circumstances, imposition of penalty in respect of credit availed on MS Channels , angles etc. cannot be sustained . [Para 2]
Central Excise - CENVAT Credit - appellant availed the credit on the basis of invoices issued by a 100%EOU on goods cleared without payment of duty : It is very clear that appellant is not new to Central Excise and it can not be said that they were ignorant or there was a bonafide mistake since they were taking credit as a fresh entrant as manufacturer. Even though the ignorance of law is not an excuse , there can be a view as regards suppression of fact and intention to evade duty etc. and it can be one of the factors to be taken into account. Penalty upheld. [Para 3]: AHMEDABAD CESTAT
CUSTOMS SECTION
NOTIFICATIONS
cnt11_087
CBEC revises tariff value of poppy seeds and brass scraps
corrigendum_10_110
Corrigendum to Notification No. 110/2010-Customs, dated the 19th October, 2010
dgft10not090
Export of empty Gelatin Capsule, to EU
dgft10not089
Deferment in the date of effect of one provision contained in Note-6 of Notification No. 82 of 31.10.2011 relating to export of meat
CASE LAW
2011-TIOL-830-HC-MUM-CUS + Bombay story
The Bombay Custom House Agents Association Vs UoI (Dated: December 7, 2011)
Customs - CHALR- Those who passed the examination under the 1984 Regulations have no vested right for a licence under the 2004 Regulations : The mere passing of an examination under the 1984 regulations did not confer a vested right to the grant of a licence. Upon the enforcement of the regulations of 2004 every applicant for the grant of a new licence must comply with the regulations which were made in the exercise of the statutory power conferred by Section 146(2). The requirement of passing an examination in additional subjects is based on an intelligible consideration which is to upgrade the skills and competencies of persons who seek to apply for a licence as CHAs. A person who seeks a licence after the enforcement of the Regulation of 2004 must therefore comply with the requirements of the new regulations. [para 18] -Petition Dismissed : BOMBAY HIGH COURT
Chattisgarh State Electricity Board Vs ITO, Raipur (Dated: November 30, 2011)
Income Tax - Sections 194I, 201, 201(A) - Whether when State Electricity Board pays for transmission of electricity from point of generation to end-users, such payment constitutes rent within the meaning of Sec 194I - Whether the expressions 'use of an asset' and benefit from an asset carry two different meanings, and thus TDS obligation arises in the former but not in the latter. - Assessee's appeal allowed : MUMBAI ITAT
2011-TIOL-756-ITAT-MUM
M/s Atul Paints & Chemical Co Vs Addl.CIT, Mumbai (Dated: October 31, 2011)
Income Tax - Sections 50C, 263 - Whether an order computing the capital gain after taking into consideration the registered valuer report and the stamp valuation authority rate can be said to be erroneous and prejudicial to the interest of revenue, and if not, then whether the CIT can revise such an order on the basis of material collected subsequent to the assessment proceedings.- Assessee's appeal allowed : MUMBAI ITAT
2011-TIOL-755-ITAT-MUM
DCIT, Mumbai Vs M/s Bombay Dyeing & MFG Co Limited (Dated: September 14, 2011)
Income Tax - Sections 37(1), 115JA - Whether VRS payments made by assessee are revenue expenses - Whether premium paid on redemption of debenture is revenue expenditure when the amount collected via debentures is employed in modernization of the industry - Whether consultancy charges paid to foreign entity for restructuring the business is revenue expenditure - Whether lease equalization charges are required to be excluded from the ambit of book profit u/s 115JA. - Revenue's appeal dismissed : MUMBAI ITAT
2011-TIOL-754-ITAT-MAD
Socio Economic Development Association Vs ITO, Madurai (Dated: October 13, 2011)
Income tax - Section 12AA - Whether when the CIT granted registration u/s 12AA but later on observed that the purpose of the society was to do business activities and not to utilize the amount for charitable purpose, the CIT has rightly cancelled the registration. - Assessee's appeal dismissed : CHENNAI ITAT
2011-TIOL-753-ITAT-MAD
M/s Sterling Agro Products Processing Pvt Ltd Vs ACIT, Chennai (Dated: August 26, 2011)
Income Tax - Section 10B - Whether conversion of gherkins into gherkins pickle amounts to manufacturing in the light of explanation given under section 10B prior to its omission - Whether a decision of coordinate bench which omits to consider the purport of explanation of a given section is binding in another year. - Assessee's appeal allowed : CHENNAI ITAT
CBEC TRANSFER
Order 251 of 2011
CBEC issues transfer order of 5 Commissioners
SERVICE TAX SECTION
2011-TIOL-1645-CESTAT-AHM + Industries story
M/s M K Industries Vs CCE, Daman (Dated: July 22, 2011)
Service Tax – If service tax paid on services obtained from foreign commission agents is admissible as credit, then service tax paid on commission agent's services within the country would also be admissible as credit - Appeal allowed with consequential relief : AHMEDABAD CESTAT
2011-TIOL-1644-CESTAT-AHM
CCE, Ahmedabad Vs M/s Pierlita India Pvt Ltd (Dated: July 28, 2011)
Service Tax – Availment of CENVAT credit of service tax paid on input services for the period from December 2006 to February 2008 in March 2008 – Credit cannot be denied on the ground that it was not availed immediately – No merit in Revenue appeals - Revenue appeal rejected : AHMEDABAD CESTAT
2011-TIOL-1643-CESTAT-AHM
M/s Cadila Pharmaceuticals Ltd Vs CCE, Ahmedabad (Dated: September 29, 2011)
Service Tax - Services utilized for export of goods - Refund - Port services - Storage and Warehousing - Insurance - Technical Testing and Analysis services - Notification No.41/2007-ST, dt.6.10.07 - CENVAT Credit or refund cannot be denied to the service receiver on the ground that the service provider was not authorized by the port. In respect of storage or warehousing service the same is required to be approved by the competent authority for claiming refund of service tax paid. In the case of Technical Testing & Analysis services refund is allowed only when such service is received in terms of written agreement with the buyer. Service receiver to provide evidence regarding payment of insurance for the export goods to claim eligible refund. Adjudicating authority to examine records and pass fresh orders. (Para 2, 4 & 6) - Appeal partially allowed / matter remanded : AHMEDABAD CESTAT
CENTRAL EXCISE SECTION
2011-TIOL-1642-CESTAT-AHM
M/s Hy Tuff Steel Pvt Limited Vs CCE, Vadodara (Dated: August 1, 2011)
Central Excise - Penalty - CENVAT Credit on MS Angles, Channels, beams, Plates, Sheets etc . - In view of the fact that there were decisions taking a view that credit is admissible on these items, it cannot be said that appellant indulged in suppression of facts/ mis-declaration with an intention to evade payment of duty. Therefore, penalty under Section 11AC of Central Excise Act, 1944 cannot be sustained. [ para 5]
Central Excise - Interest - CENVAT Credit on MS Angles, Channels, beams, Plates, Sheets etc. in view of the decision of the Supreme Court in the case of UOI vs. M/s. Ind-Swift Laboratories Limited 2011-TIOL-21-SC-CX , the question as to whether interest is payable in respect of cenvat credit wrongly taken but not utilised has been settled against the appellant. [ para 2] - Appeal partly allowed : AHMEDABAD CESTAT
2011-TIOL-1641-CESTAT-AHM
M/s Enar Chemic Pvt Ltd Vs CCE, Vadodara (Dated: August 26 2011)
Central Excise- exemption – certificate from Drug Controller - it is not in dispute that appellant's product "Di-calcium Phosphate" is a bulk drug and is eligible for the benefit of Notification No 234/86-CE dated 03.04.1986, subject to the condition that certificate from the Drug Controller of Govt. of India is produced within a period as the said officer may allow. It is undisputed that the appellant was pursuing with the Drug Controller of India for issuance of certificate which was ultimately received by the appellant on 15.02.1988. It can be seen that the appellant was vigoursly pursuing with the concerned authorities for issuance of certificate. The said certificate having been issued belatedly by the authorities, cannot be held against the appellant for denying them the benefit, for which otherwise he is eligible . [Para 6, 8] - Appeal Allowed: AHMEDABAD CESTAT
2011-TIOL-1640-CESTAT-AHM
M/s Princeware International Pvt Ltd Vs CCE, Daman, Vapi (Dated: August 25 2011)
Central Excise - CENVAT Credit on MS Channels, Angles, Beams, Flat etc.- Penalty : if an assessee entertains a bonafide belief that he is entitled to avail credit, he cannot be found fault with. Under these circumstances, imposition of penalty in respect of credit availed on MS Channels , angles etc. cannot be sustained . [Para 2]
Central Excise - CENVAT Credit - appellant availed the credit on the basis of invoices issued by a 100%EOU on goods cleared without payment of duty : It is very clear that appellant is not new to Central Excise and it can not be said that they were ignorant or there was a bonafide mistake since they were taking credit as a fresh entrant as manufacturer. Even though the ignorance of law is not an excuse , there can be a view as regards suppression of fact and intention to evade duty etc. and it can be one of the factors to be taken into account. Penalty upheld. [Para 3]: AHMEDABAD CESTAT
CUSTOMS SECTION
NOTIFICATIONS
cnt11_087
CBEC revises tariff value of poppy seeds and brass scraps
corrigendum_10_110
Corrigendum to Notification No. 110/2010-Customs, dated the 19th October, 2010
dgft10not090
Export of empty Gelatin Capsule, to EU
dgft10not089
Deferment in the date of effect of one provision contained in Note-6 of Notification No. 82 of 31.10.2011 relating to export of meat
CASE LAW
2011-TIOL-830-HC-MUM-CUS + Bombay story
The Bombay Custom House Agents Association Vs UoI (Dated: December 7, 2011)
Customs - CHALR- Those who passed the examination under the 1984 Regulations have no vested right for a licence under the 2004 Regulations : The mere passing of an examination under the 1984 regulations did not confer a vested right to the grant of a licence. Upon the enforcement of the regulations of 2004 every applicant for the grant of a new licence must comply with the regulations which were made in the exercise of the statutory power conferred by Section 146(2). The requirement of passing an examination in additional subjects is based on an intelligible consideration which is to upgrade the skills and competencies of persons who seek to apply for a licence as CHAs. A person who seeks a licence after the enforcement of the Regulation of 2004 must therefore comply with the requirements of the new regulations. [para 18] -Petition Dismissed : BOMBAY HIGH COURT
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