2012-TIOL-545-HC-DEL-IT + story
CIT Vs Deutsche Post Bank Home Finance Ltd
Income
Tax - Section 2(24) - "Subvention assistance", "purposive test" -
Whether voluntary cash assistance received from parent company for
recouping losses and restoring negative net worth, is a capital receipt,
exempt from tax - Whether only assistance or voluntary payments
received from government out of public funds and not from private
parties, is considered as capital receipt - Whether it is only the
purpose of the assistance and not the mechanism, is the conclusive test
to determine the nature of such receipts. - Revenue's appeal dismissed:
DELHI HIGH COURT
2012-TIOL-544-HC-AHM-IT
DCIT Vs Sayaji Industries Ltd
Income
Tax – Sections 153A, 263, 264 – Whether the assessment proceedings
initiated by the assessing officer after a number of years pursuant to
the remand order of the Tribunal would be covered by period of
limitation prescribed in section 153(2A) and hence has to be treated as
being barred by limitation if the assessment order was passed beyond the
limitation date prescribed therein. - Assessee's writ petition
allowed :
GUJARAT HIGH COURT
2012-TIOL-543-HC-AHM-IT
Priti Marine Pvt Ltd Vs ACIT
Income
Tax - Writ - Sections 147, 148 - Whether when on the basis of material
available with the AO, the AO found that books were not reliable and
liable to be rejected; further proceeding in terms of section 147 can be
scuttled in Writ Jurisdiction. - Assessee's appeal dismissed:GUJARAT
HIGH COURT
2012-TIOL-542-HC-MUM-IT
CIT, Mumbai Vs Kamal Kumar Johari
Income
Tax - Section 260A - Whether an application for condonation of delay of
2046 days can be allowed and matter be restored when the appellant who
had taken steps to prosecute the appeal, legitimately expected the
appeal to come up for admission on account of the objections having been
removed. - Revenue's application allowed:BOMBAY HIGH COURT
2012-TIOL-541-HC-MUM-IT
Dinkar U Desai Vs CIT
Income
Tax - Writ - Sections 132(4A), 143(3), 158BC - Constitution of India -
Art 226 - Whether when proceedings are pending before lower authorities
on remand, even then writ can be entertained. - Assessee's writ
dismissed: BOMBAY HIGH COURT
2012-TIOL-540-HC-DEL-IT
CIT Vs Societex
Income
Tax - Section 271(1)(c) - Whether penalty u/s 271(1)(c) is sustainable
when the CIT(A) as well as the Tribunal had held in favour of the
assessee on the ground of bonafide mistake.- Revenue's appeal dismissed:
DELHI HIGH COURT
SERVICE TAX SECTION
2012-TIOL-917-CESTAT-AHM + story
M/s Bhogilal Chhagulal And Sons Vs CCE, Ahmedabad
ST
- Difference in figures of Receipts shown in IT return and ST-3 return –
for the same period after CERA conducted Audit and pointed out short
payment, Internal Audit party did reconciliation and worked out a lower
demand which the appellant paid along with interest – in such a
situation duplication of demand by confirming SCN based on CERA
objection is not warranted – Matter remanded: CESTAT [paras 4 & 5]:
AHMEDABAD CESTAT
2012-TIOL-916-CESTAT-DEL
Hindustan Coca Cola Beverages Pvt Ltd Vs CCE, Meerut-II
Input
Service distributor - Mere filing of documents shall not ipso-facto
grant relief to claimant - Once the facts and circumstances of the case
bring out the identity of the recipient of service, denial of cenvat
credit may cause absurdity when claim is otherwise permissible - there
is no evidence to prove that the transport facility was used either for
manufacture or in relation to manufacture or providing output service -
In absence of nexus and integrity, denial of cenvat credit proper:
CESTAT [paras 8, 9, 10 & 11]: DELHI CESTAT
2012-TIOL-915-CESTAT-DEL
M/s Kisan Sahkari Chini Mills Vs CST, Noida
Service
Tax - Goods Transport Service - Demand for the period 1997-98 -
Maintainability of - Demand raised in 2004 for the short levies that
arose in 1997-98 not maintainable. (Para 13) - Appeal allowed: DELHI
CESTAT
2012-TIOL-914-CESTAT-MUM
Kelhin Fie Private Ltd Vs CCE, Pune
Cenvat
Credit - Outdoor Catering service - once the service tax is borne by
the ultimate consumer of the service, namely, the worker, the
manufacturer cannot take credit of that part of the service tax which is
borne by the consumer – law which prevails is that enunciated by the
High Court in case of Ultratech Cement Ltd. (2010-TIOL-745-HC-MUM-ST) –
appellant has not made out a prima facie case - Pre-deposit ordered:
CESTAT [para 6.2]: MUMBAI CESTAT
CENTRAL EXCISE SECTION
2012-TIOL-539-HC-ALL-CX
M/s Nanumal Glass Works Vs CCE, Kanpur
Central
Excise – Delay in depositing 25% penalty ordered by the CESTAT –
Application to condone the delay rejected by the Tribunal – Appellant
claims that the delay occurred as the counsel could not inform the
appellant about the directions of the Tribunal and the amount was
deposited within 30 days of communication of the order – As per Section
37C(a) of the Central Excise Act, 1944, in case the decision is tendered
to the person or his authorised agent, the same shall be deemed to be
served in accordance with the Act - The Advocate of the appellant who is
authorised agent within the meaning of Section 37C, being present on
the date of the order, the service of the order shall be deemed to be
made to the authorised agent on the same date – Tribunal has rightly
rejected the application. - Appeal dismissed: ALLAHABAD HIGH COURT
2012-TIOL-913-CESTAT-MUM
Kundan Industries Ltd Vs CCE, Thane-II
Fortnightly
payment of duty – period involved is 2000-2001 - During the period of
forfeiture, a manufacturer can pay duty on consignment wise basis by
utilizing Cenvat Credit – prima facie applicant has a strong case in
favour in view of LB decision in Noble Drugs Ltd.
2007-TIOL-1097-CESTAT-Mum-LB - Pre-deposit waived and stay granted:
CESTAT [para 4]- Stay petition allowed.: MUMBAI CESTAT
CUSTOMS SECTION
NOTIFICATIONS
dgft12not008
Amendment in FTP (RE-2012)(2009-2014)
dgft12pn012
Amendment of HBP Vol I (RE 2012)/ 2009-14
dgft12pn011
Agencies authorized to issue Certificate of Origin - (Non Preferential)Addition in Appendix 4C-regarding.
CASE LAWS
2012-TIOL-546-HC-AHM-CUS + story
Gujarat Ambuja Exports Ltd & 1 Vs Govt Of India Thr' Under Secretary (DBK) & 2
Notfn.
45/2002-Cus - Board circular 5/2005-Cus insofar as it pertains to DEPB
scrip is invalid and contrary to section 81 read with section 84 of the
Finance Act, 2004 and hence quashed - Education Cess would be leviable
ONLY on such portion of customs duty as is not exempt under the DEPB
scheme and not on the full amount as is sought to be demanded by the
department: High Court [paras 22, 27, 29 & 30]
Larger Bench
of the Tribunal in the case of Essar Steel Ltd. held that mere entry in
the DEPB book is not sufficient for eligibility of Modvat credit availed
on the strength of Bill of Entry where the importer had availed of
benefit of the exemption from payment of customs duty and this would
further go to show that while no customs duty is paid, there would be no
question of availing Modvat credit on such duty. [para 20]
If
goods are fully exempted from excise duty or customs duty or are
chargeable to nil rate of duty or are cleared without payment of duty
under specified procedure such as clearance bond, there is no collection
of duty and, therefore, no education cess would be leviable on such
clearances. [para 21]
Duty demands were even otherwise made
without issuing any show-cause notice or adjudication. Even on such
grounds, the notices are liable to be quashed.[para 28] - Petition
allowed in part: GUJARAT HIGH COURT
2012-TIOL-912-CESTAT-MUM
S K Maheshwari Vs CC (EP), Mumbai
Appellant
who impersonated as the exporter was fully aware of the dubious nature
of the transactions and aided and abetted the same even though he had no
locus standi to get involved in the transaction is liable to penalty
under section 114 of the Customs Act, 1962 – it is difficult to believe
that appellant undertook this activity on basis of friendship with the
exporter – appellant also did not make any efforts to present before the
Customs the real persons behind the transactions – charge of abetment
clearly established – however, considering that appellants are
individuals undertaking this kind of work for small consideration,
penalty reduced: CESTAT [paras 5.1, 5.2 & 5.3] - Appeals disposed
of: MUMBAI CESTAT