recent case laws

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

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Amendment in FTP (RE-2012)(2009-2014)

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Amendment of HBP Vol I (RE 2012)/ 2009-14

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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