Tribunal must pass speaking order and record its satisfaction that delay in disposing of appeal is not attributable to assessee

Excise & Customs : Stay granted by Tribunal may be extended even beyond 365 days, but, for every extension beyond 180 days, Tribunal must pass speaking order and record its satisfaction that delay in disposing of appeal is not attributable to assessee
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[2014] 48 taxmann.com 274 (Gujarat)
HIGH COURT OF GUJARAT
Commissioner
v.
Adani Gas Ltd.*
M.R. SHAH AND K.J. THAKER, JJ.
TAX APPEAL NO. 605 OF 2014†
JULY  17, 2014
Section 35C, read with section 35, of the Central Excise Act, 1944, section 86 of the Finance Act, 1994 and Section 129B of the Customs Act, 1962 - Appeals - Orders of - Appellate Tribunal - Tribunal extended stay beyond 365 days without passing any speaking order - Department argued that : (a) Tribunal had no power to extend stay beyond 365 days and (b) even otherwise, stay could not be extended without passing any speaking order - HELD : In case and having satisfied that delay in not disposing of appeal within 365 days (total) from date of grant of initial stay is not attributable to assessee in whose favour stay has been granted and Appellate Tribunal is satisfied that such assessee has fully co-operated in early disposal of appeal and/or has not indulged into any delay tactics and/or has not taken any undue advantage, Appellate Tribunal may, by passing a speaking order, extend stay even beyond total period of 365 days from date of grant of initial stay - However, period of stay may be extended only on good cause and only if Appellate Tribunal is satisfied that matter could not be heard and disposed of by reason of fault of Appellate Tribunal for reasons not attributable to assessee - Tribunal cannot extended stay indefinitely - On expiry of maximum period of 180 days, assessee is required to submit application for extension of stay each time and Appellate Tribunal is required to consider individual case and pass a speaking order - Since, in this case, stay was extended without passing any speaking order, matter was remanded back to Tribunal for consideration afresh [Paras 4 to 6] [Partly in favour of assessee]

Where receipts of assessee-society from two institution managed and run by it exceeded Rs. 1 crore

IT: Where receipts of assessee-society from two institution managed and run by it exceeded Rs. 1 crore, in absence of exemption certificate under section 10(23C), receipt exceeding over Rs. 1 crore was rightly brought to tax
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[2014] 48 taxmann.com 386 (Amritsar - Trib.)
IN THE ITAT AMRITSAR BENCH
Income-Tax Officer
v.
Vivekanand Society of Education and Research*
H.S. SIDHU, JUDICIAL MEMBER
AND B.P. JAIN, ACCOUNTANT MEMBER
IT APPEAL NO. 305 (ASR.) OF 2010
[ASSESSMENT YEAR 2005-06]
FEBRUARY  13, 2014
Section 10(23C) of the Income-tax Act, 1961 - Educational - Institutions - Assessment year 2005-06 - Whether as and when gross receipt of society exceeds Rs. 1 crore, such society requires approval from prescribed authority for exemption of its income under section 10(23C)(iiiad) - Held, yes - Whether where receipts of assessee-society from two institution managed and run by it exceeded Rs. 1 crore, in absence of exemption certificate under section 10(23C), receipt exceeding over Rs. 1 crore was rightly brought to tax - Held, yes [Paras 10 & 13] [In favour of revenue]

Compliance with direction of Tribunal and, therefore, assessee was liable to full penalty

Excise & Customs : Where Tribunal gave an option to assessee pay 25 per cent penalty within 30 days from today i.e., from 22-7-2010; payment on 30-8-2010 was not in compliance with direction of Tribunal and, therefore, assessee was liable to full penalty
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[2014] 48 taxmann.com 397 (Allahabad)
HIGH COURT OF ALLAHABAD
Nanumal Glass Works
v.
Commissioner of Central Excise, Kanpur*
ASHOK BHUSHAN AND PRAKASH KRISHNA, JJ.
CENTRAL EXCISE APPEAL NO. 492 OF 2012
MAY  7, 2012
Section 11AC, of the Central Excise Act, 1944, read with section 78, of the Finance Act, 1994 and Section 114A of the Customs Act, 1962 - Penalty - For evasion of duty/tax - Commissioner (Appeals) dropped penalty levied on assessee but Tribunal restored penalty vide order dated 22-7-2010 with an option to pay 25 Per cent penalty within 30 days from today (i.e., from 22-7-2010) - Assessee paid 25 per cent penalty on 30-8-2010 arguing that said payment was made within 30 days from date of communication of Tribunal order - HELD : Tribunal gave option to pay 25 per cent penalty within 30 days from today i.e., date of order i.e., from 22-7-2010 - Moreover, since order of Tribunal was passed in presence of assessee's counsel on 22-7-2010, same was deemed to be served on assessee on 22-7-2010 - Hence, payment on 30-8-2010 was not in compliance with direction of Tribunal - Assessee was liable to pay full penalty [Paras 9 to 16] [In favour of revenue]
Section 37C, of the Central Excise Act, 1944, read with section 83, of the Finance Act, 1994, Section 153, of the Customs Act, 1962 and rules 13 and 35 of the Cestat (Procedure) Rules, 1982 - Service of decisions, orders, summons, etc. - As per section 37C(1)(a), in case decision is tendered to person or his authorised agent, same shall be deemed to be served in accordance with Act - Since Advocate is authorised agent within meaning of section 37C and he was present on date of order, service of order shall be deemed to be made to authorised agent on same date [Paras 11 to 16] [In favour of revenue]

Application filed by applicant under section 219 was to be dsimissed

CL : Where applicant demanded copy of annual accounts of company but cheque of requisite fee could not be encashed due to overwriting, application filed by applicant under section 219 was to be dsimissed
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[2014] 48 taxmann.com 334 (CLB - Mumbai)
COMPANY LAW BOARD, MUMBAI BENCH
Anil Kumar Poddar
v.
Alka India Ltd.
ASHOK KUMAR TRIPATHI, JUDICIAL MEMBER
CO. PETITION NO. 79 OF 2013
JANUARY  28, 2014
Section 136 of the Companies Act, 2013/ Section 219 of the Companies Act, 1956 - Accounts - Right of member to copies of balance sheet and auditor's report - Applicant shareholder had sent a cheque to respondent company and requested for copies of memorandum and articles of association and last five years annual report - On failure to receive such documents, applicant filed application under section 219 against company - Company in its reply stated that requisite fees through cheque had overwriting and, hence, cheque could not be encashed and being a listed company annual accounts of company were available on BSE website - Whether applicant was in habit of making such frivolous application and had filed instant application with an oblique motive - Held, yes - Whether applicant failed to give any specific reason as to why he submitted requisite fees through cheque which could not be encashed by company due to overwriting and, therefore, application being devoid

Undisclosed income disclosed by assessee after filing revised return under section 158BC

IT: Undisclosed income disclosed by assessee after filing revised return under section 158BC, would attract penalty under section 158BFA
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[2014] 49 taxmann.com 33 (Jharkhand)
HIGH COURT OF JHARKHAND
Commissioner of Income-tax
v.
Hitech Chemical (P.) Ltd.*
MS. R. BANUMATHI, CJ.
AND CHANDRASHEKHAR, J.
TAX APPEAL NO. 7 OF 2005†
FEBRUARY  14, 2014
Section 158BFA, read with section 158BC, of the Income-tax Act, 1961 - Block assessment in search cases - Levy of interest and penalty in certain cases (Penalty) - Block period 1-4-1989 to 29-10-1998 - Whether an assessee is not entitled to file a revised return once return under section 15BC is filed - Held, yes - Whether since undisclosed income disclosed by assessee by filing a revised return after filing of return under section 158BC, would be liable to be treated as concealed income and, hence, penalty under section 158BFA is imposable on said income - Held, yes [Paras 18-21] [In favour of revenue/Matter remanded]

Claim of exemption for export sales on ground of non production of 'C' forms and 'H' forms

CST & VAT : Where Assessing Officer had disallowed assessee's claim of exemption for export sales on ground of non production of 'C' forms and 'H' forms, matter was remanded for passing fresh order after considering declaration forms being produced by assessee
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[2014] 49 taxmann.com 152 (Madras)
HIGH COURT OF MADRAS
G. Bala Mohanan Pillai
v.
Assistant Commissioner of Commercial Taxes, Kuzhithurai*
R. SUBBIAH, J.
W.P. (MD) NO. 10530 OF 2014
JULY  1, 2014
Section 5 of the Central Sales Tax Act, 1956 - Sale - In course of export - Assessment year 2011-12 - Assessing Officer issued on assessee a pre assessment notice stating that in return filed he had wrongly reported export sales under section 5(3) and proposed to disallow claim of exemption for export sales on ground of non filing of 'C' forms and 'H' forms - Assessee approached Assessing Officer for grant of time to submit declaration forms and produced all available 'C' forms and 'H' forms before Assessing Officer on 18-3-2014 - He also requested for a month's time to produce balance declarations - In mean while, Assessing Officer passed assessment order dated 1-4-2014 on assessee and disallowed claim of exemption for export sales - Whether in peculiar facts of case matter required to be remanded back to Assessing Officer for passing fresh order after considering all declaration forms being produced by assessee - Held, yes [Para 7] [In favour of assessee]
Circulars & Notifications : Circular dated 29-6-1999, Circular dated 28-2-2001

Delay in making pre-deposit as directed by Tribunal can be condoned where such delay occurred due to assessee pursuing appeal remedy before High Court

Excise & Customs : Delay in making pre-deposit as directed by Tribunal can be condoned where such delay occurred due to assessee pursuing appeal remedy before High Court against pre-deposit order of Tribunal
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[2014] 49 taxmann.com 163 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Praveen Chandra
v.
Commissioner of Central Excise, Panchkula*
AJAY KUMAR MITTAL AND JASPAL SINGH, JJ.
CEA NO. 54 OF 2014 (O & M)†
JULY  18, 2014
Section 35F of the Central Excise Act, 1944, read with section 83 of the Finance Act, 1994 and section 129E of the Customs Act, 1962 - Appeals - Deposit, pending appeal, of duty/tax demanded or penalty levied - Assessee-director challenged personal penalty of Rs. 50 lakhs imposed upon him and Tribunal directed pre-deposit of Rs. 5 lakhs - Assessee challenged same in writ proceedings and interim stay was granted - Later, appeal was filed in High Court in place of writ and High Court dismissed appeal vide order dated 1-5-2013 - Assessee made pre-deposit on 13/14-5-2013 and requested that delay in making pre-deposit be condoned - Tribunal dismissed appeal for default in making pre-deposit - HELD : In view of facts and circumstances noticed hereinbefore, present appeal was allowed, order of Tribunal was set aside and delay, if any, in making pre-deposit of Rs. 5 lakhs as directed by Tribunal was condoned - Tribunal was directed to hear appeal on merits [Para 5] [In favour of assessee]
Jagmohan Bansal, Advocate for the Appellant. Kamal Sehgal, Advocate for the Respondent.

Unaccounted commission in respect of giving accommodation entries to various parties

IT: Where assessee challenged addition made on account of unaccounted commission in respect of giving accommodation entries to various parties taking a plea that said addition had already been made in case of his brother, since aforesaid plea required verification at level of Assessing Officer, matter was to be remanded back for disposal afresh
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[2014] 48 taxmann.com 403 (Mumbai - Trib.)
IN THE ITAT MUMBAI BENCH 'I'
Sudhir B. Vora
v.
Assistant Commissioner of Income-tax, Central Circle-18 & 19, Mumbai*
VIJAY PAL RAO, JUDICIAL MEMBER
AND N.K. BILLAIYA, ACCOUNTANT MEMBER
IT APPEAL NOS. 3895 & 5030 OF 2007, 4619 & 4620 (MUM.) OF 2013
[ASSESSMENT YEARS 1994-95 TO 1996-97 AND 1999-2000]
SEPTEMBER  27, 2013
Section 69A of the Income-tax Act, 1961 - Unexplained moneys (Accommodation entries) - Assessment years 1994-95 and 1995-96 - A survey under section 133A was carried out in 'V' group cases in course of which it was found that assessee and his brother 'N' were engaged in activity of providing hawala bills and accommodation entries to various parties at pre-determined commission rate along with their regular business - Assessing Officer assessed unaccounted commission at rate of 4 per cent of total cash deposited during year under consideration - In appellate proceedings, assessee raised a plea that since an addition in respect of unaccounted commission was already made in case of his brother, no further addition could be made in hands of assessee - Commissioner (Appeals) having accepted said plea, deleted addition made by Assessing Officer - Whether since question as to whether addition on account of commission income had been made in hand of assessee's brother was required to be verified at level of Assessing Officer, impugned order was to be set aside and, matter was to be remanded back for disposal afresh - Held, yes [Para 6][Matter remanded]
A.L. Sharma for the Appellant. O.P. Singh for the Respondent.

Development of infrastructure for shooting locations, such rental income being capital in nature could not be held income

IT : Where lease rentals were earned from land which were developed for creating film shooting facilities/locations and it was directly, connected with main activity of assessee, i.e., development of infrastructure for shooting locations, such rental income being capital in nature could not be held income
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[2014] 48 taxmann.com 364 (Andhra Pradesh)
HIGH COURT OF ANDHRA PRADESH
Commissioner of Income-tax, Hyderabad -I
v.
Usha Kiran Movies Ltd.*
KALYAN JYOTI SENGUPTA, CJ.
AND SANJAY KUMAR, J.
I.T.T.A. NOS. 31 OF 2007 & 60 OF 2010
FEBRUARY  6, 2014
Section 4, read with section 263 of the Income-tax Act, 1961 - Income - Chargeable as (Rent) - Assessment year 1995-96 - Assessee-company, engaged in development of infrastructure for shooting location, filed nil return for relevant year and same was accepted by Assessing Officer - Commissioner in exercise of jurisdiction under section 263 reversed assessment order and directed that rental income received by assessee would not be capitalised and same should be brought to tax - Whether since lease rentals were earned from land which were developed for creating film shooting facilities/locations and it was directly, connected with main activity of assessee, i.e., development of infrastructure for shooting locations, such rental income being capital in nature could not be held income - Held, yes [Para 6] [In favour of assessee]
J.V. Prasad for the Appellant. Ms. Mamata Chowdary and B. Nalin Kumar for the Respondent.

If tax, interest, penalty, etc., has been collected in excess and it is withheld beyond permissible period under Act, Revenue should compensate for same

September 25, 2014[2014] 49 taxmann.com 142 (Andhra Pradesh)
IT : If tax, interest, penalty, etc., has been collected in excess and it is withheld beyond permissible period under Act, Revenue should compensate for same
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[2014] 49 taxmann.com 142 (Andhra Pradesh)
HIGH COURT OF ANDHRA PRADESH
Sirpur Paper Mills Ltd
v.
Joint Commissioner of Income-tax, Hyderabad*
G. CHANDRAIAH AND CHALLA KODANDA RAM, JJ.
WRIT PETITION NO. 5807 OF 1999
MARCH  20, 2014
Section 244A of the Income-tax Act, 1961 - Refunds - Interest on (General principle) - Assessment year 1984-85 - Whether revenue is entitled to collect only tax, interest, penalty etc., within four corners of Act - Held, yes - Whether when any amount has been collected by revenue in excess and, it is withheld beyond period permissible under statute, taxpayer is entitled to be compensated for deprivation of said amount; such compensation would be in form of penal interest on revenue which may be up to 15 per cent and be levied for period from date of assessment till date of refund - Held, yes [Para 4] [In favour of assessee]

Where purchases were actually made and payment was made by account payee cheques, no disallowance could be made on account of undisclosed cash purchases

IT: Where purchases were actually made and payment was made by account payee cheques, no disallowance could be made on account of undisclosed cash purchases
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[2014] 50 taxmann.com 190 (Calcutta)
HIGH COURT OF CALCUTTA
Commissioner of Income-tax, Kolkata-XII
v.
Manish Enterprises*
SOUMITRA PAL AND ARINDAM SINHA, JJ.
ITAT NO. 51 OF 2014
G.A. NO. 1551 OF 2014†
AUGUST  21, 2014
Section 69 of the Income-tax Act, 1961 - Unexplained investments (Undisclosed cash purchases) - Assessing Officer made addition on account of undisclosed cash purchases and bogus sundry creditors - However, details of ledger account and copies of bill clearly indicated that purchases were made from these parties and payments were made through bank - All payments were made by account payee cheque which were duly debited in assessee's bank account and credited in bank account of suppliers - Whether since assessee had made purchases in actual which had been paid by account payee cheques, no disallowance coul

Addition an account of excise duty payable by simply relying on order passed by Tribunal

IT: Where Appellate Authorities had deleted addition an account of excise duty payable by simply relying on order passed by Tribunal in earlier assessment year, since said order was reversed by High Court and further facts were also not clearly brought out in assessment order, matter was to be readjudicated
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[2014] 50 taxmann.com 182 (Delhi)
HIGH COURT OF DELHI
Commissioner of Income-tax-II
v.
Lakshmi Sugar Mills Co. Ltd.*
SANJIV KHANNA AND V. KAMESWAR RAO, JJ.
IT APPEAL NO. 233 OF 2013†
SEPTEMBER  1, 2014
Section 43B, read with section 145, of the Income-tax Act, 1961 - Business disallowance - Certain deductions to be allowed only on actual payment (Excise Duty) - Assessment year 2008-09 - Assessing Officer disallowed certain amount shown as excise duty payable - Appellate Authorities deleted said addition by simply relying on order passed by Tribunal in earlier assessment year - Whether since said ITAT order was which stood reversed by High Court and further facts were also not clearly brought out in assessment order, matter was to be readjudicated - Held, yes [Para 8][In favour of revenue/Matter remanded]

Where assessee in support of loan transactions, submitted confirmation letters from creditors, impugned addition made under section 68 was to be set aside

IT : When developer has not performed or there is unwillingness to perform his part of contract, it cannot be concluded that there is transfer of capital asset in terms with section 2(47)(v) read with section 53A of Transfer of Property Act 1882, merely because assessee has entered into a development agreement or even handed over possession of land to developer during assessment year in question
IT : Where assessee in support of loan transactions, submitted confirmation letters from creditors, impugned addition made under section 68 was to be set aside and, matter was to be remanded back for disposal afresh
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[2014] 50 taxmann.com 178 (Hyderabad - Trib.)
IN THE ITAT HYDERABAD BENCH 'B'
Assistant Commissioner of Income-tax, Central Circle-5, Hyderabad
v.
R. Srinivasa Rao*
B. RAMAKOTAIAH, ACCOUNTANT MEMBER
AND SAKTIJIT DEY, JUDICIAL MEMBER
IT APPEAL NOS. 1703,1786 TO 1789 & 1806 TO 1809 (HYD.) OF 2012
[ASSESSMENT YEAR 2008-09]
AUGUST  28, 2014
I. Section 2(47) of the Income-tax Act, 1961 - Capital gains - Transfer (Land dealings) - Assessment year 2008-09 - Whether when developer has not performed or there is unwillingness to perform his part of contract, it cannot be concluded that there is transfer of capital asset in terms with section 2(47)(v) read with section 53A of Transfer of Property Act, 1882, merely because assessee has

It is duty of Court to deal with all arguments/points raised by parties

IT: It is duty of Court to deal with all arguments/points raised by parties and if petitioner has chosen to take a stand during course of argument, petitioner cannot take a 'U' turn and say that judgment may be reviewed as points for determination were limited
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[2014] 50 taxmann.com 191 (Allahabad)
HIGH COURT OF ALLAHABAD
M.D. Overseas Ltd.
v.
Director General of Income-tax (Inv.)*
PRAKASH KRISHNA AND VIPIN SINHA, JJ.
WRIT TAX NO. 75 OF 2010
JULY  31, 2013
Section 132 of the Income-tax Act, 1961, read with Article 226 of the Constitution of India - Search and seizure - General (Review of writ petition) - Petitioner sought review of High Court's order contending that Court had decided other issues also which were not urged by petitioner - Department opposed review application on ground that in impugned order Court had considered all arguments urged by petitioner and it was no longer open to petitioner to say anything otherwise - There was no affidavit by petitioner's counsel stating that he did not argue points mentioned in judgment - Whether it is duty of Court to deal with all arguments/points raised by parties - Held, yes - Whether if petitioner had chosen to take a stand during course of argument, it could not take a 'U' turn and say that judgment should be reviewed as points for determination were limited - Held, yes [Para 15][In favour of revenue]

Advertisement given by petitioner-chartered accountant for purpose of seeking association

Advertisement given by petitioner-chartered accountant for purpose of seeking association with other international chartered accountant firms did not warrant a severe punitive action as alleged misconduct was not grave and ICAI erred in undertaking disciplinary enquiry after a lapse of 18 years when alleged misconduct was done
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[2014] 51 taxmann.com 466 (Delhi)
HIGH COURT OF DELHI
Vipin Malik
v.
Institute of Chartered Accountants of India
VIBHU BAKHRU, J.
W.P.(C) NO. 2213 OF 2013
CM NO. 4199 OF 2013
NOVEMBER  3, 2014
V.P. Singh, Senior Advocate and Ms. Yukti Gupta for the Petitioner. J.S. Bakshi for the Respondent.

Method of valuation is such as has resulted in an artificially depressed or contrived valuation

CL: To disregard a method of valuation of shares in scheme of reduction, it must be shown that chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable
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[2014] 49 taxmann.com 52 (Bombay)
HIGH COURT OF BOMBAY
Cadbury India Ltd., In re
G.S. PATEL, J.
CO. PETITION NO. 1072 OF 2009
CO. APPLICATION NOS. 1332 OF 2009 AND 71 & 120 OF 2010
MAY  9, 2014
Section 66 of the Companies Act, 2013/Section 100 of the Companies Act, 1956 - Share capital - Reduction of - Whether before a Court can decline sanction to a scheme of reduction on account of a valuation, an objector to scheme must first show that valuation is ex-facie unreasonable - Held, yes - Whether sanctioning Court has no power or jurisdiction to exercise any appellate functions over scheme; it is not a valuer and it does not have necessary skills or expertise - Held, yes - Whether Court cannot substitute its own opinion for that of shareholders, its jurisdiction is peripheral and supervisory, not appellate - Held, yes - Whether it is impossible to say which of several available valuation models are 'best' or most appropriate - Held, yes - Whether no valuation is to be disregarded merely because it has used one or other of various methods; it must be shown that chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable - Held, yes - Whether where in proposed scheme of reduction of share capital of Cadbury India valuation of shares was done by Court appointed valuer and was accepted by overwhelming majority including a bulk of non-promoter minority, scheme was to be sanctioned - Held, yes [Paras 7.1.5, 7.1.7, 7.1.9, 7.1.11 & 8.1]

Cenvat reversal from recipient factories on ground of excess duty payment by supplier

Cenvat Credit : Where supplier factories and recipient factories, both, belonged to assessee only, demand of Cenvat reversal from recipient factories on ground of excess duty payment by supplier factories, was dropped on undertaking from supplier factories that they would not claim refund of such excess duty
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[2014] 49 taxmann.com 416 (Bombay)
HIGH COURT OF BOMBAY
Commissioner of Central Excise
v.
Cipla Ltd.*
S.C. DHARMADHIKARI AND B.P. COLABAWALLA, JJ.
CENTRAL EXCISE APPEAL NOS. 101 TO 103 OF 2012
CENTRAL EXCISE APPEAL (LODGING) NOS. 68 AND 69 OF 2012
JULY  3, 2014
Rule 3 of the Cenvat Credit Rules, 2004, read with sections 3 and 11B of the Central Excise Act, 1944 - CENVAT Credit - General - Assessee made clearances from its supplier factories at Kurkumbh/Bangalore to recipient factories at Pune/Mumbai/ Raigad/Goa, etc. - Department claimed that supplier factories had made clearances to recipient factories at higher amount of duty, thereby, passing more credit - Tribunal held that since supplier factories had not claimed refund/reversal of credit, no demand could be sustained - HELD : Recipient factories had taken credit of duty paid by supplier factories - Supplier factories had given undertaking that they shall not file refund of duty paid by them - Corporate identity of supplier factories and recipient factories was same - In view of : (a) peculiar facts of case, (b) undertaking given by supplier factories and protection of interests of revenue thereby; and (c) common corporate identity of supplier and recipient factories, appeal was dismissed keeping larger question of law open [Paras 4 to 7] [In favour of assessee]

Claim for registration under section 12AA could not be rejected merely or ground that assessee had spent only small amount towards charitable activities

IT : Where assessee-trust satisfied requirements of Rule 17A of 1962 Rules and submitted Form No. 10A alongwith requisite documents, its claim for registration under section 12AA could not be rejected merely or ground that assessee had spent only small amount towards charitable activities
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[2014] 49 taxmann.com 99 (Madras)
HIGH COURT OF MADRAS
Director of Income-tax (Exemptions), Chennai
v.
R.J.B.V. Vasudevan Educational & Charitable Trust*
R. SUDHAKAR AND G. M. AKBAR ALI, JJ.
TAX CASE (APPEAL) NO. 729 OF 2013†
JULY  22, 2014
Section 12AA of the Income-tax Act, 1961, read with rule 17A of the Income-tax Rules, 1962 - Charitable or religious trust - Registration procedure (Relevance of quantum of amount spent on charitable activities) - Whether where assessee-trust satisfied requirements of rule 17A of 1962 Rules and submitted Form No. 10A alongwith requisite documents, its claim for registration under section 12AA could not be rejected merely or ground that assessee had spent only small amount towards charitable activities - Held, yes [Para 12] [In favour of assessee]

AMP expenditure, matter was to be remanded back to TPO

IT/ILT : Where assessee, a distributor of high end audio products manufactured by AE located abroad, incurred certain AMP expenditure for developing marketing intangibles for AE, in order to determine ALP of said AMP expenditure, matter was to be remanded back to TPO to determine same in light of decision in case of BMW India (P.) Ltd. v. Addl. CIT [2014] 146 ITD 165/[2013] 37 taxmann.com 319 (Delhi - Trib.)
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[2014] 49 taxmann.com 24 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'I'
Bose Corporation India (P.) Ltd.
v.
Assistant Commissioner of Income-tax, Circle-3 (1)*
SMT. DIVA SINGH, JUDICIAL MEMBER
AND T.S. KAPOOR, ACCOUNTANT MEMBER
IT APPEAL NOS. 5178 (DELHI) OF 2011 & 263 (DELHI) OF 2013
[ASSESSMENT YEARS 2007-08 & 2008-09]
JULY  31, 2014
Section 92C of the Income-tax Act, 1961 - Transfer pricing - Computation of arm’s length price (Comparables and adjustments/RPM) - Assessment years 2007-08 and 2008-09 - Assessee-company was a wholly owned subsidiary of 'B' Corporation, USA - It was engaged in business of reselling of

Technical services fee received by it in terms of those contracts was exempt from tax by virtue of proviso to section 9(1)(vii)

IT/ILT: Where assessee-company entered into contract with Indian companies for supply of technical know-how prior to 1-4-1976, technical services fee received by it in terms of those contracts was exempt from tax by virtue of proviso to section 9(1)(vii)
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[2014] 49 taxmann.com 8 (Bombay)
HIGH COURT OF BOMBAY
Commissioner of Income-tax, Bombay City -III
v.
Montedison of Italy*
S.C. DHARMADHIKARI AND B.P. COLABAWALLA, JJ.
IT REFERENCE NO. 202 OF 1993†
AUGUST  8, 2014
Section 9 of the Income-tax Act, 1961 read with article 12 of the Model OECD Convention - Income - Deemed to accrue or arise in India (Royalty/Fees for technical services) - Whether where assessee-company entered into contract with Indian companies for supply of technical know-how prior to 1-4-1976, technical services fee received by it in terms of those contracts was exempt from tax by virtue of proviso to section 9(1)(vii) - Held, yes [Para 10] [In favour of assessee]

There was contravention of provisions of section 53(2)(b)

CST & VAT: Where a transporter was transporting goods from Surat to Hubli and instead of unloading goods at Hubli, it carried vehicle beyond Hubli, there was contravention of provisions of section 53(2)(b)
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[2014] 49 taxmann.com 242 (Karnataka)
HIGH COURT OF KARNATAKA
State of Karnataka
v.
RCI Logistics (P.) Ltd.*
N. KUMAR AND B. MANOHAR, JJ.
SALES TAX REVISION PETITION NO. 5 OF 2012
JULY  3, 2014
Section 53 of the Karnataka Value Added Tax Act, 2003 read with rule 157 of the Karnataka Value Added Tax Rules, 2005 - Penalty - For contravention of provisions of section 53 - Assessee, a transporter, was transporting goods from Surat to Hubli - Instead of unloading goods at Hubli, driver carried vehicle beyond Hubli and parked same on Kolar road at Siddlaghatta, which was 50 Kms. away from border of Tamil Nadu - On interception of above vehicle, driver produced before Assessing Authority all documents to show that goods were transported from Surat to Hubli - He did not possess any document to show transportation of goods from Hubli to Siddlaghatta - He also stated that he was directed to deliver goods at Trichy in Tamil Nadu - Whether there was contravention of provisions of section 53(2)(b) by assessee - Held, yes - Whether, therefore, levy of penalty upon it under section 53(12) was justified - Held, yes [Para 15][In favour of revenue]

Secured creditors (including workmen) from proceeds received upon sale of mortgaged assets by Official Liquidator

CL: Income-tax department does not have a preferential right in matter of payment of dues over right of secured creditors (including workmen) from proceeds received upon sale of mortgaged assets by Official Liquidator
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[2014] 49 taxmann.com 75 (Gujarat)
HIGH COURT OF GUJARAT
Commissioner of Income-tax-II
v.
Official Liquidator of Gujarat Telephone Cables Ltd.
K.J. THAKER, J.
CO. APPLICATION NOS. 245 OF 2012, 525 OF 2008,
286,295 OF 2011 AND 208, 209 & 210 OF 2013
CO. PETITION NO. 253 OF 2008
OFFICIAL LIQUIDATOR REPORT NO. 35 OF 2012
JUNE  30, 2014
Section 326, read with section 327, of the Companies Act, 2013/ Section 529A, read with section 530 of the Companies Act, 1956 and section 178 of the Income-tax Act, 1961 - Winding up - Overriding preferential payments - Whether there is nothing in section 178 of Income-tax Act which, apart from asking liquidator to set aside assets sufficient to meet possible tax liabilities commands liquidator to pay tax dues in preference over all other dues and it does not place tax dues or dues of State/department in a position higher or better than what is conferred by and what is available under Companies Act - Held, yes - Whether order of priority in matter of payment is prescribed by virtue of section 529A, read with section 530 of Companies Act and not in Income-tax Act and obligation which is created under section 178 of Income-tax Act, does not override right of priority and preference created by and under section 529A of Companies Act - Held, yes - Whether when pursuant to sale of mortgaged assets Official Liquidator sought disbursement of sale proceeds to secured creditors and workmen covered within purview of section 529A but income-tax department after relevant date raised a demand for payment of tax dues in respect of gain received, question of restraining liquidator from discharging dues of secured creditors and workmen covered under section 529A would not arise and claim of department could not be sustained - Held, yes [Paras 16, 16.1 & 26]

Consider appointment of petitioner on basis of his position in waiting list

IT : Where in course of examination for appointment of Members of Tribunal, petitioner was placed in waiting list but his appointment was not confirmed on account of contention made by Union of India that it would make suitable amendment in Rules for said purpose, in view of fact that fresh selection process was started without making any such amendment in Rules, instant petition was to be allowed with a direction to consider appointment of petitioner on basis of his position in waiting list
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[2014] 50 taxmann.com 50 (SC)
SUPREME COURT OF INDIA
Inturi Rama Rao
v.
Union of India
RANJAN GOGOI AND R.K. AGRAWAL, JJ.
WRIT PETITION (CIVIL) NO. 202 OF 2013
SEPTEMBER  23, 2014
Nidhesh Gupta, Sr. Adv. Atul Kumar, Adv. Amit Kumar Adv. and Avijit Mani Tripathi Adv. for the Petitioner. Tushar Mehta, ASG Shiv Mangal Sharma, Adv. Ms. Usha Reddy, Adv. Vivek Ranjan Mohanty, Adv. D.S. Mahra Adv. and B.V. Balaram Das Adv. for the Respondent.

Where petition alleging oppression and mismanagement was filed to create pressure on respondents to part with some money from them, petition was to be rejected

CL : Where petition alleging oppression and mismanagement was filed to create pressure on respondents to part with some money from them, petition was to be rejected
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[2014] 48 taxmann.com 391 (CLB - New Delhi)
COMPANY LAW BOARD, NEW DELHI BENCH
Bharat Bhushan Agarwal
v.
Jai Mata Foods Ltd.
B.S.V. PRAKASH KUMAR, JUDICIAL MEMBER
C.P. NO. 52 OF 2008
MARCH  28, 2014
Section 241, read with sections 242, 58 and 59 of the Companies Act, 2013/Section 397, read with sections 398 and 111A of the Companies Act, 1956 - Oppression and mismanagement - It appeared that petitioners had set up litigation to pressurise respondents to part with some money - Further, petitioners had no stake in R-1 company at relevant time - Whether they could not invoke jurisdiction under sections 397 and 398 - Held, yes - Whether since, in fact, no prejudice was caused to petitioners, their petition was to be rejected - Held, yes [Paras 38 & 39]

Relief under section 273A, question of making payment of penalty

IT : In order to qualify for relief under section 273A, question of making payment of penalty and interest in first instance can not arise because if such a construction is adopted, object of conferring discretion on Commissioner itself would be defeated
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[2014] 49 taxmann.com 182 (Delhi)
HIGH COURT OF DELHI
Asha Pal Gulati
v.
Central Board of Direct Taxes*
S. RAVINDRA BHAT AND R.V. EASWAR, JJ.
W.P. (C) NO. 3129 OF 1992
JANUARY  2, 2014
Section 273A of the Income-tax Act, 1961 - Penalty - Reduction or waiver of - Assessment years 1980-81 to 1988-89 - Whether in order to qualify for relief under section 273A, question of making payment of penalty and interest in first instance cannot arise because if such a construction is adopted, object of conferring discretion itself would be defeated - Held, yes [Partly in favour of assessee]

Section 67, read with sections 4 and 147, of the Income-tax Act, 1961 - Association of person

[2014] 50 taxmann.com 89 (Jodhpur - Trib.)
IN THE ITAT JODHPUR BENCH
Kumbh Singh Patawat
v.
Assistant Commissioner of Income-tax*
HARI OM MARATHA, JUDICIAL MEMBER
AND N.K. SAINI, ACCOUNTANT MEMBER
IT APPEAL NO. 546 (JODH.) OF 2013
[ASSESSMENT YEAR 2007-08]
MAY  2, 2014
Section 67, read with sections 4 and 147, of the Income-tax Act, 1961 - Association of person - Computation of a share of a member of (Reassessment) - Assessment year 2007-08 - Assessing Officer reopened assessment of assessee on basis of an agreement of purchase of certain land - Assessee contended that said agreement did not pertain to him as an individual but pertained to AOP of which he was one of members - It was found that same Assessing Officer had, later on, initiated reassessment proceedings under section 147 against AOP, on basis of same agreement - Whether since Assessing Officer himself had treated impugned agreement to belong to AOP, reassessment order made in assessee's case as individual could not survive and, accordingly, was liable to be quashed - Held, yes [Para 8] [In favour of assessee]

Indicating IEC number so that activities of export could be correlated with documents and notifications

Service Tax : In order to claim refund of service tax paid on services used for export goods, it is incumbent upon assessee to produce necessary documents before adjudicating authority alongwith invoices indicating IEC number so that activities of export could be correlated with documents and notifications
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[2014] 51 taxmann.com 65 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
Heritage Impex Worldwide
v.
Commissioner of Service Tax, Delhi-IV*
MANMOHAN SINGH, TECHNICAL MEMBER
FINAL ORDER NO. 53642/2014
APPEAL NO. ST/60279/2013-ST
SEPTEMBER  10, 2014
Section 93 of the Finance Act, 1994 - Exemptions - Service Tax - Refund of tax paid on services used for export goods - Assessee filed refund claim of tax paid on courier services used for export of books - Department denied refund on ground that assessee could not correlate invoices with export and certain invoices did not bear Import and Export Code (IEC) number - Assessee submitted declaration from courier agency that said charges were for export purposes and submitted some sample invoices - Assessee claimed that verification of each and every invoice can be at stage of adjudicating authority only, as it is a voluminous job - HELD : Proper reconciliation could be looked into by adjudicating authority - Onus is on assessee to produce necessary documents before adjudicating authority alongwith invoices indicating IEC number so that activities of export could be correlated with documents and notifications, which is mandatory requirement - Hence, matter was remanded back with a direction to complete adjudication within 3 months [Paras 6 & 7] [Matter remanded]
Circulars and Notifications : Notification No.17/2009-ST dated 7.7.2009
Tarun Rohtagi for the Appellant. B.B. Sharma for the Respondent.

Belated refund of Cenvat Credit is also eligible for interest on delayed refund under section 11BB of the Central Excise Act, 1944

Excise & Customs : Where assessee had applied for refund on 4/11-2-2003, but, had re-submitted same in June 2004 after having won on merits before Commissioner (Appeals), interest on refund would be granted with reference to 4/11-2-2003
Excise & Customs : Belated refund of Cenvat Credit is also eligible for interest on delayed refund under section 11BB of the Central Excise Act, 1944
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[2014] 50 taxmann.com 431 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
Rishab Velveleen Ltd.
v.
Commissioner of Central Excise, Meerut-I*
RAKESH KUMAR, TECHNICAL MEMBER
FINAL ORDER NOS. 53366-53367 OF 2014
APPEAL NOS. E/364-365 OF 2007 (SM)
AUGUST  28, 2014
Section 11BB, read with section 11B, of the Central Excise Act, 1944 - Interest - On delayed refunds - Assessee's raw material attracted Basic Excise Duty (BED) and Additional Excise Duty (Textile and Textile Articles) [AED (TTA)]; while final product attracted BED and Additional Excise Duty (Goods of Special Importance) [AED (GSI)] - Initially department did not allow use of AED (TTA) to pay BED or AED (GSI) but later Tribunal allowed same - Meanwhile assessee became eligible for area-based exemption in Uttarakhand and therefore, applied for refund of unutilized credit alongwith interest - Department granted refund but without interest on ground that section 11BB applies to refund of duty and not to refund to unutilized credit - HELD : Clause (c) of proviso to section 11B(2) refers to refund of credit - Hence, while dealing with interest on refund in section 11BB, no distinction can be made in between such credit and any other duty referred to in section 11B - Hence, assessee was entitled to interest on delayed refund [Para 6] [In favour of assessee]

Section 80-IB of the Income-tax Act, 1961 - Deductions - Profits and gains from industrial undertakings

[2014] 50 taxmann.com 37 (Mumbai - Trib.)
IN THE ITAT MUMBAI BENCH 'F'
Income-tax Officer
v.
Velentine Developers*
D. MANMOHAN, VICE-PRESIDENT
AND N.K. BILLAIYA, ACCOUNTANT MEMBER
IT APPEAL NOS. 6901 & 8469 (MUM.) OF 2010
[ASSESSMENT YEARS 2006-07 & 2007-08]
MARCH  14, 2014
Section 80-IB of the Income-tax Act, 1961 - Deductions - Profits and gains from industrial undertakings other than infrastructure development undertakings (Housing projects) - Assessment years 2006-07 and 2007-08 - Whether section 80-IB(10) is prospective in nature and cannot be made applicable to projects approved prior to 1-4-2005 - Held, yes - Whether, therefore, where in case of assessee, engaged in business of developing housing project, approval was given to project prior to 1-4-2005, its claim for deduction could not be rejected on ground that space for commercial establishments was in excess of 2000 sq. ft. and, therefore, there was violation of clause (d) to section 80-IB(10) - Held, yes [Para 13] [In favour of assessee]

Where revised TDS return was filed by assessee during appellate proceedings, matter was restored to Assessing Officer to examine same

IT : Where revised TDS return was filed by assessee during appellate proceedings, matter was restored to Assessing Officer to examine same
IT : Where assessee-society, engaged in manufacturing and marketing of milk products, granted sums to different milk producer societies being suppliers of milk to put up a building to facilitate milk collection and testing, said expenditure was revenue expenditure
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[2014] 50 taxmann.com 46 (Bangalore - Trib.)
IN THE ITAT BANGALORE BENCH 'B'
Assistant Commissioner of Income-tax
v.
Shimoga District Milk Producers societies Union Ltd.*
GEORGE GEORGE K., JUDICIAL MEMBER
AND JASON P. BOAZ, ACCOUNTANT MEMBER
IT APPEAL NO. 1059 (BANG.) OF 2012
[ASSESSMENT YEAR 2008-09]
OCTOBER  25, 2013
I. Section 40(a)(ia) of the Income-tax Act, 1961, read with rule 46A of the Income-tax Rules, 1962 - Business disallowance - Interest, etc., paid to resident without deduction of tax at source (Additional evidence) - Assessment year 2008-09 - Assessing Officer observed that assessee had not effected TDS on full amount of expenditure claimed - He, therefore, disallowed expenditure to that extent - On appeal, Commissioner (Appeals) deleted additions made by Assessing Officer by admitting revised TDS return filed by assessee - Whether since Assessing Officer did not have an opportunity/occasion to examine issue of disallowance revised TDS return, was to be restored to Assessing Officer - Held, yes [Paras 11 and 12] [In favour of revenue]

Only object of trust is required to be examined and, therefore, assessee's application seeking approval under section 80G(5)

IT : At time of granting approval of exemption under section 80G, only object of trust is required to be examined and, therefore, assessee's application seeking approval under section 80G(5) could not be rejected on ground that it failed to incur expenditure to extent of 85 per cent of its income during relevant year
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[2014] 49 taxmann.com 171 (Gujarat)
HIGH COURT OF GUJARAT
Commissioner of Income-tax
v.
Shree Govindbhai Jethalal Nathavani Charitable/Trust*
M.R. Shah AND K.J. THAKER, JJ.
Tax Appeal Nos. 306,409 & 416 of 2014†
AUGUST  6, 2014
Section 80G of the Income-tax Act, 1961 - Deductions - Donations to certain funds, charitable institutions (Approval of exemption) - Assessment year 2012-13 - Whether at time of granting approval of exemption under section 80G, only object of trust is required to be examined and, therefore, assessee's application seeking approval under section 80G(5) could not be rejected on ground that it failed to incur expenditure to extent of 85 per cent of its income during relevant year - Held, yes [Para 8] [In favour of assessee] 

here assessee after taking loan from bank gave interest-free advances to its sister concern

IT: Where assessee after taking loan from bank gave interest-free advances to its sister concern which had gone into huge loss and there was no commercial expediency in advancing such loan, interest attributable to such loan was to be disallowed
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[2014] 49 taxmann.com 21 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
C. R. Auluck and Sons (P.) Ltd.
v.
Commissioner of Income-tax*
AJAY KUMAR MITTAL and Jaspal Singh, jj.
IT Appeal No. 128 of 2011 (O & M)†
OCTOBER  23, 2013
Section 36(1)(iii) of the Income-tax Act, 1961 - Interest on borrowed capital (Interest-free loan to sister concern) - Assessment year 2005-06 - Assessee and its sister concern had taken independent credit limits from bank - Assessee along with two group concerns stood guarantor to credit limits advanced to sister concern - Sister concern had gone into huge loss and its bank account was proposed to be declared as non-performing asset - Assessee took a loan from bank and gave interest-free advances to sister concern - Whether there was no commercial expediency in advancing loan by assessee to sister concern and, therefore, interest attributable to such loan was to be disallowed under section 36(1)(iii) - Held, yes [Paras 7 & 11][In favour of revenue] 

A registered trust is entitled to claim depreciation even though benefit of application of fund had already been granted to it at time of purchase of assets

IT : Where society, running school, had received development fund as part of students fee which was utilised in amenities and welfare of students, same was to be regarded as capital receipt not chargeable to tax
IT : A registered trust is entitled to claim depreciation even though benefit of application of fund had already been granted to it at time of purchase of assets
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[2014] 49 taxmann.com 294 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'D'
Income-tax Officer (Exemption)
v.
J.D.Tytler School Society*
Bhavnesh Saini, JUDICIAL MEMBER
AND Shamim Yahya, ACCOUNTANT MEMBER
IT Appeal No. 4476 (Delhi) of 2011
[ASSESSMENT YEAR 2008-09]
JANUARY  8, 2014
I. Section 4, read with sections 11 and 12, of the Income-tax Act, 1961 - Income - Chargeable as (Development fund) - Assessment year 2008-09 - Whether where assessee-society engaged in Charitable object of running school, received certain amount as development fund as part of students fee, in view of fact that said amount was utilised for development of amenities and welfare of students, same was to be regarded as capital receipt not chargeable to tax - Held, yes [Para 8] [In favour of assessee]
II. Section 32, read with section 12AA of the Income-tax Act, 1961 - Depreciation - Allowance/rate of (Charitable trust) - Assessment year 2008-09 - Assessee-society claimed depreciation on certain assets - Whether even though benefit of application of fund had already been taken when assets were purchased, in view of order passed in case of CIT v. Tiny Tots Education Society [2011] 330 ITR 21/11 taxmann.com 242 (Punj. & Har.), assessee's claim for depreciation was to be allowed - Held, yes [Para 15] [In favour of assessee]

Where assessee-broker was initially purchasing land in name of his associate and then transferring same to investor, no addition could be made on account of undisclosed investment

IT: Where assessee-broker was initially purchasing land in name of his associate and then transferring same to investor, no addition could be made on account of undisclosed investment
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[2014] 49 taxmann.com 189 (Jaipur - Trib.)
IN THE ITAT JAIPUR BENCH
Gaurav Kumar Sharma
v.
Assistant Commissioner of Income-tax*
HARI OM MARATHA, JUDICIAL MEMBER
AND N.K. Saini, ACCOUNTANT MEMBER
IT Appeal Nos. 366 to 368 (JP.) of 2013
[ASSESSMENT YEARS 2007-08 TO 2009-10]
JANUARY  31, 2014
Section 69B of the Income-tax Act, 1961 - Undisclosed investments (Immovable property) - Assessment years 2007-08 to 2009-10 - In search, an agreement was found between company 'M' belonging to one 'RK' and company of assessee which showed that assessee was acting as a broker in acquiring land for company 'M' - Land purchased in name of assessee's associate 'S' was transferred to a nominee of 'RK' - Whether ignoring fact that company 'M' had made investment in impugned land, no addition could be made in hands of assessee-broker - Held, yes [Paras 5.2 and 5.3][In favour of assessee] 

Where Administrative Commissioner rejected assessee's application for registration under section 12AA without examining genuineness of activity of trust, matter was to be readjudicated

IT : Where Administrative Commissioner rejected assessee's application for registration under section 12AA without examining genuineness of activity of trust, matter was to be readjudicated
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[2014] 49 taxmann.com 333 (Cochin - Trib.)
IN THE ITAT COCHIN BENCH
Kasargod District Health & Family Welfare Society Kanhangad
v.
Commissioner of Income-tax, Kozhikode*
N.R.S. GANESAN, JUDICIAL MEMBER
AND CHANDRA POOJARI, ACCOUNTANT MEMBER
IT Appeal No. 133 (Coch.) of 2014
[ASSESSMENT YEAR 2014-15]
AUGUST  14, 2014
Section 12A, read with section 12AA and section 2(15) of the Income-tax Act, 1961 - Charitable or religious trust - Registration of (Denial of registration) - Assessment year 2014-15 - Without examining genuineness of activities of assessee trust, Commissioner rejected assessee's claim for registration under section 12AA only on ground that trust deed did not contain mandatory clauses for audit as required under section 12A(b) - Whether since section 12AA does not say that any such mandatory clause has to be incorporated in bye laws, Commissioner was not justified - Held, yes [Para 8] [In favour of assessee/Matter remanded] 

Where respondent-company had disputed neither debt owed to petitioner-bank nor fact that it had been unable to discharge its debt, winding up petition against it was to be admitted

CL: Where respondent-company had disputed neither debt owed to petitioner-bank nor fact that it had been unable to discharge its debt, winding up petition against it was to be admitted
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[2014] 49 taxmann.com 481 (Delhi)
HIGH COURT OF DELHI
Small Industries Development Bank of India
v.
Nirmaan Bharati Samajik And Arthik Vikas Sangathan
VIBHU BAKHRU, J.
CO. PETITION NO. 107 OF 2011
CA NO. 363 OF 2011
AUGUST  25, 2014
Section 271 of the Companies Act, 2013/ Section 433 of the Companies Act, 1956 - Winding up - Circumstances in which a company may be wound up - Petitioner bank had granted financial assistance to respondent-company by virtue of loan agreements - Respondent failed to pay instalments of principal sum and interest and, therefore, petitioner filed winding up petition against respondent - Respondent raised a defence that petitioner bank was liable to support it - Whether since respondent company had disputed neither debt owed to petitioner bank nor fact that it had been unable to discharge its debt, winding up petition was to be admitted - Held, yes - Whether as regards liability of petitioner to extend a rehabilitation package to respondent-company, petitioner bank could not be compelled to provide further assistance contrary to its commercial wisdom - Held, yes [Paras 22 & 25]

Where petitioner had borrowed money from bank and upon being unable to repay same

CL: Where petitioner had borrowed money from bank and upon being unable to repay same, bank had taken possession of secured asset pursuant to orders obtained by Court and since no law or any fact had been cited in petition for Court to deviate from procedure; bank was to be permitted to take steps in accordance with orders passed by Magistrate under section 14 of SARFAESI Act, 2002
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[2014] 50 taxmann.com 377 (Calcutta)
HIGH COURT OF CALCUTTA
Anita Katyal
v.
State of West Bengal
SANJIB BANERJEE, J.
T.NO. 301 OF 2014
WP NO. 982 OF 2014
OCTOBER  9, 2014
Section 14 of the Securitisation And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 read with sections 17, 19 & 21 of Protection of Women from Domestic Violence Act, 2005 - Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset- Petitioner had borrowed money from respondent bank - Upon petitioner being unable to pay same, respondent bank took possession of secured asset pursuant to orders obtained and by procedure established by law - Petitioner took refuge under 2005 Act in a

Assessing Authority and Appellate Authority passed orders on assessee without giving opportunity

CST & VAT : Where assessee's counsel could not attend at time of hearing because of his personal reason and thereupon Assessing Authority and Appellate Authority passed orders on assessee without giving opportunity, matter was sent back to make fresh assessment after affording opportunity to assessee
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[2014] 49 taxmann.com 505 (WBTT)
WEST BENGAL TAXATION TRIBUNAL
Sovan Das
v.
Sales Tax Officer, Behala Charges*
PRANAB KUMAR DEB, CHAIRMAN
AND NIRMAL KANTI SARKAR, TECHNICAL MEMBER
CASE NO. RN-320 OF 2011
JANUARY  21, 2013
Section 46 of the West Bengal Value Added Tax Act, 2003 - Assessment - Opportunity of hearing - Assessing Authority passed an ex parte assessment order on assessee - Appellate Authority also passed order without giving a semblance of opportunity to assessee to vindicate his stand - Assessee's counsel could not attend at time of hearing because of his personal reason - Whether matter required to be remitted back to Assessing Authority to make fresh assessment after affording opportunity to assessee to vindicate his stand - Held, yes [Para 5] [In favour of assessee/Matter remanded]

In view of circular No. 34/2007-Cus., dated 17-9-2007 separate chemically defined compounds are classifiable under Chapter 29

Excise & Customs : In view of circular No. 34/2007-Cus., dated 17-9-2007 separate chemically defined compounds are classifiable under Chapter 29
Excise & Customs : Since Circular enures to benefit of assessee to some extent, though assessee had not raised plea of undue hardship, case was still arguable - Hence, pre-deposit was reduced to Rs. 25 lakhs
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[2014] 50 taxmann.com 172 (Madras)
HIGH COURT OF MADRAS
J.U. Pesticides & Chemicals (P.) Ltd.
v.
Customs, Excise & Service Tax Appellate Tribunal, Chennai*
R. SUDHAKAR AND G.M. AKBAR ALI, JJ.
C.M.A. NOS. 2442 & 2443 OF 2014
M.P. NO. 1 OF 2014 (2 PETITIONS)†
SEPTEMBER  2, 2014
Section 2, read with First Schedule, of the Customs Tariff Act, 1975 and section 2, read with First Schedule, of the Central Excise Tariff Act, 1985 - Classification - Chemicals - Stay Order - Chapters 28, 29 and 38 of First Schedule - Assessee imported chemicals and paid duty at concessional rate of 7.5% claiming classification under Chapters 28 and 29 - Department argued that goods imported

Where NPA amounts payable by petitioner to bank exceeded total deposit made by petitioner

SARFAESI : Where NPA amounts payable by petitioner to bank exceeded total deposit made by petitioner before Tribunal for hearing its appeal, application for refund of 25 per cent of deposit was to be rejected
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[2014] 49 taxmann.com 572 (Delhi)
HIGH COURT OF DELHI
Kumar Aluminium Ltd.
v.
Asset Reconstruction Co. India Ltd.
SANJIV KHANNA AND V. KAMESWAR RAO, JJ.
W.P. (C) NO. 3896 OF 2013
AUGUST  19, 2014
Section 18, read with section 13, of the Securitisation and Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002 - Appellate Tribunal - Appeal to - Petitioner had availed credit facilities from bank - Accounts of petitioner and its associate firms had been declared as NPA (non-performing asset) by bank and notices were issued under section 13(2) - Receiver had been appointed by order of DRT in respect of mortgaged properties of petitioner - Petitioner made a pre-deposit for hearing of appeal - Petitioner's application seeking refund of 25 per cent of amount deposited was dismissed by Appellate Tribunal - Whether since NPA amount payable exceeded total deposits and reasons given by Tribunal for dismissing application of refund were appropriate, writ petition against impugned order was to be dismissed - Held, yes [Paras 8,9 and 13]

Where assessee handed over possession of property to builder on first instalment of sale consideration, transfer of property took place when said instalment was received

IT : Where assessee handed over possession of property to builder on first instalment of sale consideration, transfer of property took place when said instalment was received
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[2014] 49 taxmann.com 263 (Kerala)
HIGH COURT OF KERALA
Commissioner of Income-tax, Cochin
v.
Cochin Stock Exchanges Ltd.*
DR. MANJULA CHELLUR, CJ.
AND A.M. SHAFFIQUE, J.
IT APPEAL NO. 93 OF 2010†
JANUARY  1, 2014
Section 2(47), read with section 45, of the Income-tax Act, 1961 - Capital gains - Transfer (Immovable property) - Assessment year 2004-05 - Whether if a transaction involves allowing of possession of any immovable property to be retained in part performance of a contract of a nature referred to in section 53A of Transfer of Property Act it amounts to transfer - Held, yes - Whether where assessee handed over possession of property to builder on first instalment of sale consideration, transfer of property took place when said instalment was received - Held, yes [Paras 10 and 11] [In favour of revenue]
P.K.R. Menon and Jose Joseph for the Appellant. Joseph Kodianthara, Joseph Markose, V. Abraham Markos, B.J. John Prakash, Terry V. James and Tom Thomas for the Respondent.

Issue of exemption under section 54B to be re-adjudicated

IT: Where whether land was an agricultural land and whether it was used for agricultural purpose in immediately two preceding years prior to sale of land were not considered by lower authority, issue of exemption under section 54B to be re-adjudicated
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[2014] 49 taxmann.com 435 (Cochin - Trib.)
IN THE ITAT COCHIN BENCH
T.S. Vasudevan Elayath
v.
Deputy Commissioner of Income-tax*
N.R.S. GANESAN, JUDICIAL MEMBER
AND B.R. BASKARAN, ACCOUNTANT MEMBER
IT APPEAL NOS. 1 & 41 (COCH.) OF 2014
CROSS OBJECTION NO. 20 (COCH.) OF 2014
APRIL  1, 2014
Section 54B of the Income-tax Act, 1961 - Capital gains - Transfer of land used for agricultural purposes (Conditions precedent) - Commissioner (Appeals) allowed assessee's claim for exemption under section 54B - Whether since lower authorities had not recorded any finding as to whether land was an agricultural land and whether it was used for agricultural purpose in immediately two preceding years from sale of land, impugned order was to be set aside and matter was to be remanded back to file of Assessing Officer to decide issue afresh - Held, yes [Para 4][Matter remanded]
S. Rajeev for the Appellant. K.K. John for the Respondent.

Where assessee had not opted for provisional assessment

Excise & Customs : Where assessee : (a) was clearing cylinders under price variation clause, (b) had not opted for provisional assessment and (c) was paying differential duty on supplementary invoices, said self-assessment by assessee was not provisional but final assessment; therefore, benefit of extension of time-limit for refund claim was not available
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[2014] 50 taxmann.com 388 (Madras)
HIGH COURT OF MADRAS
Commissioner of Central Excise, Chennai-IV
v.
Sri Balaji Cylinders (P.) Ltd.*
CHITRA VENKATARAMAN AND T.S. SIVAGNANAM, JJ.
CIVIL MISC. APPEAL NOS. 1109-1110 OF 2009†
JANUARY  3, 2013
Rule 7 of the Central Excise Rules, 2002 read with rule 9B of the Central Excise Rules, 1944, section 18, read with section 17 of the Customs Act, 1962 and rule 6 of the Service Tax Rules, 1994 - Assessment - Central Excise - Provisional Assessment - Assessee-manufacturer was clearing cylinders under price variation clause - Assessee wrote letter to department stating that as price variation is regular, provisional assessment need not be resorted to and he would pay differential duty wherever supplementary invoices are raised periodically in future - In one case refund arose and assessee claimed refund contending that said assessments were provisional - HELD : In view of assessee's own letter, assessments were not provisional but final assessments and, that too, at request and insistence of assessees [Para 8] [In favour of revenue]
Section 11B of the Central Excise Act, 1944 read with rule 7 of the Central Excise Rules, 2002, rule 9B of the Central Excise Rules, 1944, section 83 of the Finance Act, 1994 and section 27 of the Customs Act, 1962 - Refund - Period of limitation - Assessee was clearing goods under price variation clause but did not resort to provisional assessment - Assessee applied for refund pertaining to year 1997-98 on 21-5-2001 - Department rejected said claim as time-barred - Assessee argued that since goods were cleared under price variation clause, assessment was provisional - HELD : Since assessee had not applied for provisional assessment, assessment made in 1997-98 was final assessment in year 1998 itself and benefit of clause (eb) of Explanation to section 11B was not available - Hence, period of 1 year from relevant date referred to in section 11B would start from year 1997-98 itself and accordingly, refund claims were time-barred [Paras 8 to 13] [In favour of reven

Where as per MOU for acquiring property, property was to be transferred to assessee only when entire consideration was paid

IT : Where as per MOU for acquiring property, property was to be transferred to assessee only when entire consideration was paid
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[2014] 49 taxmann.com 387 (Kerala)
HIGH COURT OF KERALA
Lachmandas & Sons
v.
Deputy Commissioner of Income-tax*
DR. MANJULA CHELLUR, CJ.
AND A.M. SHAFFIQUE, J.
IT APPEAL NO. 344 OF 2010
JANUARY  3, 2014
Section 2(42B), read with sections 2(29A) and 45, of the Income-tax Act, 1961 - Capital gains - Short term capital gains (Immovable property) - Assessment year 2005-06 - In 2001, assessee-firm entered into a MOU with D for acquisition of property of D - Consideration for such property was paid in 2004 - In 2005 said property was sold - Terms and conditions of MOU clearly indicated that property would not be transferred in name of assessee till entire amount was paid - Whether surplus was a short-term capital gain and not long-term capital gain - Held, yes [Para 8] [In favour of revenue]

Proprietary organisation is also a "concern" and if it is engaged in commercial activity of security services, it is a commercial concern liable to service tax.

Service Tax : Proprietary organisation is also a "concern" and if it is engaged in commercial activity of security services, it is a commercial concern liable to service tax.
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[2014] 50 taxmann.com 432 (New Delhi - CESTAT)
CESTAT, NEW DELHI BENCH
World Wide Security Organization
v.
Commissioner of Central Excise, Bhopal*
JUSTICE G. RAGHURAM, PRESIDENT
AND R.K. SINGH, TECHNICAL MEMBER
FINAL ORDER NO. 53491/2014
ST/55/2009-CU
AUGUST  28, 2014
Section 65(94) of the Finance Act, 1994 - Taxable Services - Security Agency's Services -Period from 1-4-2002 to 31-3-2003 - Assessee, a proprietorship firm, was providing security services - Department sought levy of service tax - Assessee argued that, being a proprietary firm, they were not a "concern" and hence, they were not a commercial concern - HELD : It is totally untenable to claim that proprietary organisation is not a "concern" - They were clearly engaged in commercial activity - Hence, assessee was a commercial concern liable to service tax [Para 3] [In favour of revenue]
Section 73, read with sections 76, 77, 78 and 80 of the Finance Act, 1994, section 11A of the Central Excise Act, 1944 and section 28 of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation - During search on 17-1-2006, department found that assessee Mr. VPS, a proprietor, was providing security agency services but was not paying service tax - Assessee was also a director in a company, which had taken registration for paying service tax on security agency services in year 2005 - Department invoked extended period alleging charge of suppression - HELD : Since company, in which assessee was director, had taken registration in 2005, it is evident that assessee was aware about service tax leviability on security services way before search operation - Thus, it was not a case of ignorance on part of assessee but a deliberate act on their part to evade service tax - In fact, in his statement, assessee-proprietor admitted that his service tax liabilities were pending - Hence, extended period was invokabkle and penalties were leviable [Para 3] [In favour of revenue]
Words and Phrases : 'Concern' and 'Commercial Concern' as generally defined
Manjit Singh Gupta, Advocate for the Appellant. Sanjay Jain for the Respondent.

Extended period of limitation could not be raised before High Court

Excise & Customs : Jurisdiction of High Court as an appellate forum would depend upon issues adjudicated and decided in order in original; hence, where order in original decided dispute relating to rate of duty, even issues relating to invocation of extended period of limitation could not be raised before High Court
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[2014] 49 taxmann.com 597 (Delhi)
HIGH COURT OF DELHI
Commissioner of Central Excise & Service Tax
v.
Nestle India Ltd.*
SANJIV KHANNA AND V. KAMESWAR RAO, JJ.
CEAC NO. 9 OF 2014
CM NOS. 4106 & 4107 OF 2014
AUGUST  12, 2014
Section 35G, of the Central Excise Act, 1944, read with section 83, of the Finance Act, 1994 and section 130, of the Customs Act, 1962 - Appeals - Maintainability of - High Court - Tribunal passed an order holding that 'Nestle Tea Premix' should be classified under Chapter sub-heading 2101.20 of excise Tariff, as claimed by revenue and not under Entry No. 2108.99, as claimed by assessee - Tribunal also held that extended period of limitation was not invocable - Department filed appeal before High Court limited to issue of invocation of extended period - HELD : Jurisdiction of High Court as an appellate forum would depend upon issues adjudicated and decided in order in original - Since, in this case, order in original decided dispute relating to rate of duty, present appeal is not maintainable before High Court - Appeal was returned accordingly [Paras 4 and 5] [In favour of assessee]
Satish Kumar, Sr. Standing Counsel for the Appellant. V. Lakshmikumaran and Aditya Bhattacharya, Advs., for the Respondent.

High Court reduced pre-deposit as it was causing financial hardship to assessee

CST & VAT: High Court reduced pre-deposit as it was causing financial hardship to assessee
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[2014] 49 taxmann.com 590 (Gujarat)
HIGH COURT OF GUJARAT
Laxmi Metal Works
v.
State of Gujarat*
M.R. SHAH AND K.J. THAKER, JJ.
TAX APPEAL NO. 322 OF 2014
CIVIL APPLICATION NO. 208 OF 2014†
AUGUST  14, 2014
Section 73 of the Gujarat Value Added Tax Act, 2003 - Commissioner (Appeals) - Appeals to (Pre-deposit) - Assessing Officer confirmed total demand of Rs. 20.15 lakh as tax, Rs. 14.51 lakh as interest and Rs. 30.22 lakh as penalty - Commissioner dismissed appeal for failure to pre-deposit 20 per cent of total demand of Rs. 64.87 lakh i.e., Rs. 12.97 lakh - Tribunal instructed to pre-deposit 60 per cent of tax demand of Rs. 20.15 lakh, i.e., 12.09 lakh - Assessee requested to reduce amount of pre-deposit pleading financial hardship - Whether assessee should be allowed to pre-deposit Rs. 7.5 lakh and Commissioner should decide appeal on merit - Held, yes [Paras 7 & 8][In favour of assessee]

Where order imposing penalty was remanded, original order did subsist; mere pendency of remand case would not entitle department to retain amount deposited as penalty

CST & VAT : Where order imposing penalty was remanded, original order did subsist; mere pendency of remand case would not entitle department to retain amount deposited as penalty
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[2014] 50 taxmann.com 175 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Surya Synthetics
v.
State of Punjab*
RAJIVE BHALLA AND DR. BHARAT BHUSHAN PARSOON, JJ.
CIVIL WRIT PETITION NO. 23146 OF 2013
OCTOBER  25, 2013
Section 12, read with section 14B, of the General Sales Tax Act, 1958 - Refund - Assistant Commissioner imposed penalty of Rs. 3,52,000 on petitioner - Petitioner filed appeal before Deputy Commissioner after depositing Rs. 88,000 towards penalty - Deputy Commissioner found that order of Assistant Commissioner imposing penalty was non-speaking and ex-parte and therefore, he remanded case - Whether in absence of mention of words by Deputy Commissioner that order of Assistant Commissioner had been set aside or that appeal was allowed, would not raise an inference that original order of Assistant Commissioner still subsisted - Held, yes - Whether since impugned order of Deputy Commissioner left no ambiguity that orders of Assistant Commissioner levying penalty was set aside and matter was remanded to pass fresh orders, pendency of remanded case, did not entitle department to retain amount of penalty deposited by petitioner - Held, yes [Para 7] [In favour of assessee]

here applicant sought for payment of interest on claims of ex-employees of company-in-liquidation, Official Liquidator was directed to declare rate of interest and pay same

CL: Where applicant sought for payment of interest on claims of ex-employees of company-in-liquidation, Official Liquidator was directed to declare rate of interest and pay same
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[2014] 50 taxmann.com 103 (Karnataka)
HIGH COURT OF KARNATAKA
Mysore Acetate & Chemicals Co. VRS Employees Association
v.
Mysore Acetate & Chemicals Ltd. (Under Liquidation)
A.S. BOPANNA, J.
CO. APPLICATION NO. 1348 OF 2014
CO. PETITION NO. 45 OF 2001
AUGUST  21, 2014
Section 328, read with section 352, of the Companies Act, 2013/ Section 530, read with section 555, of the Companies Act, 1956 - Winding up - Preferential payments - Applicant-employees association sought for appropriate orders regarding payment of interest on claims made by ex-employees of company-in-liquidation - Court had directed Official Liquidator to make payment of interest - Whether Official Liquidator was permitted to declare interest at 4 per cent per annum as same being done pursuant to order of Court - Held, yes - Whether since ex-employees were scattered in different parts of State, Official Liquidator would make payment through office bearers of association and in respect of unclaimed dividend, Official Liquidator was permitted to comply with provision of section 555 - Held, yes [Paras 4 & 6]
Sridhar C.K., Advocate for the Applicant. V. Jayaram, Advocate for the Respondent.

Transfer of land was not with intention to defraud revenue

CST & VAT : Where Assessing Officer in order to recover arrears of tax due from one 'B' had attached his land and thereafter 'B' had sold said land to assessee, since 'B' had not discharged initial onus showing that transfer of land was not with intention to defraud revenue, action of Assessing Officer putting charged land to sale could not be faulted

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[2014] 50 taxmann.com 197 (Andhra Pradesh)

HIGH COURT OF ANDHRA PRADESH

Showtech Stone International (P.) Ltd.

v.

Deputy Commercial Tax Officer-I, Saroornagar Circle, Hyderabad*

RAMESH RANGANATHAN AND SATYANARAYANA MURTHY, JJ.

WRIT PETITION NO. 13475 OF 2010

AUGUST  28, 2014 

Section 27, read with section 26, of the Andhra Pradesh Value Added Tax Act, 2005 and sections 53 and 100 of the Transfer of Property Act, 1882 - Recovery of tax - Attachment of property - Assessment years 2005-06 to 2007-08 - Assessing Officer finalised assessments of one 'B' and raised tax demand upon him - He in order to recover arrears of tax due from 'B' had attached his land - Thereafter 'B' had sold said land to assessee by registered sale deed dated 17-3-2007 - Later Assessing Officer issued on assessee a notice proposing to recover arrears of tax due from 'B' putting above land to sale - 'B' had not discharged initial onus placed on him under section 27(1) showing that transfer of land was not with intention to defraud revenue - Whether action of Assessing Officer putting charged land to sale could not be faulted - Held, yes [Para 30] [Partly in favour of assessee]

Section 80P deduction is not allowable on interest on fixed deposit

IT : Grant received by assessee-society from Government as market development allowance is business income eligible for deduction under section 80P
IT : Section 80P deduction is not allowable on interest on fixed deposit
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[2014] 49 taxmann.com 482 (Cochin - Trib.)
IN THE ITAT COCHIN BENCH
Aryad Block Small Scale Coir Fibre Mats Manufacturers Co-operative Society Ltd.
v.
Income-tax Officer, Ward-1, Alappuzha*
N.R.S. GANESAN, JUDICIAL MEMBER
AND CHANDRA POOJARI, ACCOUNTANT MEMBER
IT APPEAL NO. 787 (COCH.) OF 2013
[ASSESSMENT YEAR 2009-10]
AUGUST  14, 2014
Section 80P of the Income-tax Act, 1961 - Deductions - Income of co-operative societies (Marketing socities) - Assessment year 2009-10 - Whether grant received by assessee from Coir Development Directorate as market development allowance was to be treated as business income of assessee and was eligible for deduction under section 80P(2)(a)(i) - Held, yes [Para 8] [In favour of assessee]
Section 80P of the Income-tax Act, 1961 - Deductions - Income of co-operative societies (Marketing socities) - Assessment year 2009-10 - Whether interest earned by assessee by investing surplus funds in fixed deposits could be considered as business income so as to be entitled for deduction under section 80p(2)(a)(i) - Held, no [Para 9] [In favour of revenue]

Direction in block assessment without considering certain vital issues, matter was remanded for fresh consideration

IT : Where Tribunal set aside order of Commissioner, giving certain direction in block assessment without considering certain vital issues, matter was remanded for fresh consideration
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[2014] 49 taxmann.com 254 (Allahabad)
HIGH COURT OF ALLAHABAD
Commissioner of Income-tax (Central)
v.
Umang Agarwal*
TARUN AGARWALA AND DR. SATISH CHANDRA, JJ.
IT APPEAL NO.422 OF 2006†
MAY  16, 2014
Section 158BB of the Income-tax Act, 1961 - Block assessment in search cases - Undisclosed income, computation of (Illustrations) - Block period 1-4-1996 to 4-9-2002 - After search and seizure operation, Assessing Officer passed block assessment order against assessee for certain undisclosed income in which income as declared by assessee in its return filed for assessment year 2002-03 (which fell in block period) was not included - Commissioner, in exercise of his powers under section 263, directed Assessing Officer to include said income in undisclosed income for block period on ground that return was filed belatedly and full advance tax was not paid - On appeal, Tribunal set aside order of Commissioner on ground that partial advance tax was paid and return was filed within extended time allowed under section 139 - From record it appeared that assessee filed return for assessment year 2002-03 beyond time allowed under section 139 and was, therefore, non est that assessee's application was pending before Settlement Commission and there was no discussion whatsoever about this issue in block assessment order; and that filing of regular return for assessment year 2002-03 was within knowledge of Assessing Officer at time of completing block assessment order but he failed to take into account correct position of law - Whether since aforesaid vital issues were not examined by Tribunal before passing impugned order, same was to be set aside and matter was to be remanded to pass fresh order - Held, yes [Paras 16,19 and 20] [In favour of revenue]

ervices provided from outside India and received in India are taxable only from 18-4-2006 after introduction of section 66A

Service Tax : Services provided from outside India and received in India are taxable only from 18-4-2006 after introduction of section 66A; they cannot be taxed under reverse charge for period prior thereto
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[2014] 50 taxmann.com 75 (SC)
SUPREME COURT OF INDIA
Commissioner of Service Tax, Bangalore
v.
Metro Cash & Carry Survey*
H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.
APPEAL (CIVIL) NOS. 34254 - 34255 OF 2011†
DECEMBER  12, 2011
Section 66A, read with section 65(47) of the Finance Act, 1994 - Charge/levy - Service Tax on services received from outside India - Period prior to 18-4-2006 - Under licence agreement with a foreign company, assessee got rights to use trademarks and proprietary know-how in managing cash and carry business in India

Nita Ambani donates Rs.11 crore for Andhra cyclone relief

Reliance Foundation chairperson Nita Ambani has donated over Rs.11 crore for relief works in cyclone—hit Andhra Pradesh.

She handed over a cheque of Rs.111,111,111 to Chief Minister N. Chandrababu Naidu at the latter’s residence in Hyderabad on Saturday.

The chief minister thanked her for the gesture. Ms. Nita briefed him about the activities of the foundation.

Ms. Nita was accompanied by actress Juhi Chawla and some women entrepreneurs.

Severe cyclonic storm Hudhud had battered north Andhra coast last month killing 46 people, damaging 9,000 houses and crops over more than two lakh hectares.

The cyclone with a wind speed of nearly 200 kmph left a trail of destruction in Visakhapatnam, Srikakulam and Vijayanagaram districts, uprooting thousands of trees and damaged electricity and communication networks.Source:http://www.thehindu.com/

Infosys ties up with DreamWorks for new engineering solutions

Software major Infosys has entered into a strategic partnership with DreamWorks Animation SKG to develop new engineering solutions.

“The tie-up envisages developing next generation technologies with our global talent pool in cloud, big data, Java and open source platforms for DreamWorks,” the IT bellwether said in a statement on Saturday.

The U.S.-based digital studio creates animated feature films, television programmes and online virtual worlds.

Infosys chief executive Vishal Sikka said the company had a market-leading record of delivering critical engineering services to innovative tech firms like DreamWorks.

“Combination of our expertise in delivering engineering services and technologies has huge potential for wider use in the world around us,” Mr. Sikka said on the occasion.

Lauding the ti-—up between two major firms, DreamWorks chief executive Jeffrey Katzenberg said as a world leader in enterprise solutions, Infosys was the right partner to develop new technology on a large scale.

The two-decade-old studio co-founded by Mr. Katzenberg with renowned Hollywood film maker Steven Spielberg, has rolled out 29 feature films in animation, and generated $12 billion revenue worldwide till August 2014.Source:http://www.thehindu.com/

Where partners of firm gives money to firm in need of business exigencies and received it back through capital account, both in cash; no penalty could be levied

IT: Where partners of firm gives money to firm in need of business exigencies and received it back through capital account, both in cash; no penalty could be levied
■■■
[2014] 49 taxmann.com 490 (Mumbai - Trib.)
IN THE ITAT MUMBAI BENCH 'C'
Deputy Commissioner of Income-tax
v.
Chetan M. Kakaria*
N.K. SAINI, ACCOUNTANT MEMBER
AND SANJAY GARG, JUDICIAL MEMBER
IT APPEAL NO. 4961 (MUM.) OF 2011
[ASSESSMENT YEAR 2006-07]
FEBRUARY  3, 2014
Section 269T, read with section 271E, of the Income-tax Act, 1961 - Deposits - Mode of repayment of certain (In case of firm) - Whether there is no independent legal entity of firm apart from rights and liability of partners constituting it and if any amount is given or taken from firm by partners that cannot be treated as giving or taking of a loan - Held, yes - Assessee being a partner gave money to partnership-firm in need of business exigencies - Later on amount was received back - Impugned amounts routed through capital account of assessee partner - Whether no disallowance could be made by revenue and no penalty could be levied - Held, yes [Para 9][In favour of assessee]

Under rule 7(4) of Central Excise Rules, 2002, interest arises only from first day of month succeeding month

Excise & Customs : Under rule 7(4) of Central Excise Rules, 2002, interest arises only from first day of month succeeding month for which such amount is determined till date of payment thereof; thus, interest liability arises only upon determination of value or duty by adjudicating authority
■■■
[2014] 50 taxmann.com 120 (Rajasthan)
HIGH COURT OF RAJASTHAN
Commissioner of Central Excise
v.
Aksh Optifibre Ltd.*
AJAY RASTOGI AND J.K. RANKA, JJ.
D.B. CENTRAL EXCISE APPEAL NO. 21 OF 2008
DECEMBER  4, 2013
Rule 7 , read with rule 27 of the Central Excise Rules, 2002 and section 11AA of the Central Excise Act, 1944 - Interest - On Delayed Payment of duty/tax - Period from December, 2002 to July, 2003 - Assessee paid duty on provisional rates fixed with customers and later, paid differential duty on differential amount arising on finalization of its prices - Department contended that assessee should have opted for provisional assessment and asked for payment of interest under rule 7(4) of Central Excise Rules, 2002 - HELD : Under rule 7(4), interest arises only from first day of month succeeding month for which such amount is determined till date of payment thereof - Thus, interest liability arises only upon determination of value or duty by adjudicating authority and only after determination, this liability arises - Hence, assessee could not be made to pay interest and penalty merely because it had not applied for provisional assessment - In view of concurrent findings of fact and amount being small, no substantial question of law arose [Paras 11 & 12] [In favour of assessee] 

No reversal of credit was warranted as per Rule 57S ibid

Excise & Customs : In absence of any definition of 'job-worker' in erstwhile Modvat Rules (Central Excise Rules, 1944), definition of job-worker under a particular exemption notification cannot be used for purposes of Modvat rules
Excise & Customs : Where assessee had obtained permission for clearance of moulds, etc. to various parties for use in manufacture of parts to be supplied to it, no reversal of credit was warranted as per Rule 57S ibid
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[] (Madras)
HIGH COURT OF MADRAS
Commissioner of Central Excise, Pondichery Commissionerate
v.
Whirlpool of India Ltd.*
R. SUDHAKAR AND G.M. AKBAR ALI, JJ.
CIVIL MISC. APPEAL NOS. 2396,2682, 2877 & 3544 OF 2005
AUGUST  28, 2014
Rule 57S of the Central Excise Rules, 1944 read with Rules 2(n), 3 and 4 of the Cenvat Credit Rules, 2004 - CENVAT Credit - Job-work - Assessee sent moulds and dies without payment of duty to job-workers for manufacture of parts of machines, after taking requisite permission under Rule 57S - Job-workers were manufacturing parts using raw materials procured from outside and were paying duty thereon - Revenue argued that since so-called job-workers were procuring raw material from market and not getting raw material from assessee, job-workers were actually 'principal manufacturer' and therefore, assessee was liable to reverse credit on moulds and dies at time of sending them - HELD : In absence of any definition of 'job-worker' in erstwhile Modvat Rules (Central Excise Rules, 1944), definition of job-worker under a particular notification cannot be used for purposes of Modvat rules - Since assessee had obtained permission under Rule 57S, no reversal of credit was warranted [Paras 15 to 24] [In favour of assessee]

Assessing Authority directed assessee to pay arrears of tax due

CST & VAT: Where against order of assessment, assessee filed revision petition alongwith stay petition and Revisional Authority did not proceed with matter and in mean time Assessing Authority directed assessee to pay arrears of tax due, recovery proceeding were kept in abeyance and Revisional Authority was directed to dispose of stay petition on merits
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[2014] 50 taxmann.com 409 (Madras)
HIGH COURT OF MADRAS
New Holland Fiat (India) (P.) Ltd.
v.
Assistant Commissioner (CT)*
T.S. SIVAGNANAM, J.
W.P. (MD) NO. 14549 OF 2014
M.P. (MD) NOS. 1 & 2 OF 2014
SEPTEMBER  3, 2014
Section 45, read with section 54, of the Tamil Nadu Value Added Tax Act, 2006 - Recovery of tax - Stay of recovery - Against order of assessment, assessee filed revision petition alongwith stay petition - Joint Commissioner did not proceed with matter, since assessment file had not been forwarded by Assessing Authority - In mean time, Assessing Authority directed assessee to pay arrears of tax due - Whether in peculiar facts of case recovery proceedings deserved to be kept in abeyance for a certain period - Held, yes - Whether Joint Commissioner was to be directed to dispose of stay petition on merits - Held, yes [Para 8][In favour of assessee]

Non-compliance of DRT's order by one of party for discovery and production of documents

RDDBFI ACT: Non-compliance of DRT's order by one of party for discovery and production of documents in an adjudication pending before it is a matter to be decided on merit by DRT and DRAT; writ jurisdiction cannot be enforced
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[2014] 50 taxmann.com 338 (Delhi)
HIGH COURT OF DELHI
G.D. Goenka (P.) Ltd.
v.
Standard Chartered Bank
SANJIV KHANNA AND V. KAMESWAR RAO, JJ.
W.P. (C) NO. 5341 OF 2014†
CAV. NO. 703 OF 2014
CM NOS. 10627-10628 OF 2014
AUGUST  22, 2014
Section 22 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, read with Order XI, rule 14 and rule 21 of the Code of Civil Procedure, 1908 - Procedure and Powers of Tribunal and Appellate Tribunal - Pending adjudication of disputes before Debt Recovery Tribunal and Appellate Tribunal, respondent-bank was ordered to furnish certain documents - However respondent-bank produced one document and contended that it could not produce other documents as no record of document/information was maintained by them - Consequently petitioner filed application for passing order against respondent bank for non-compliance of order of discovery and production of documents which was rejected by DRT - Whether claim of respondent bank had merit or not and any adverse inference could be drawn or not was a matter to be examined by DRT and appellate authority and not an issue which could be decided in a writ petition - Held, yes [Para 13]

Tribunal did not raise any substantial question of law

IT: Where Tribunal in impugned order had just followed its own earlier view and that too in relation to same assessee, appeal against order of Tribunal did not raise any substantial question of law
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[2014] 49 taxmann.com 258 (Bombay)
HIGH COURT OF BOMBAY
Commissioner of Income-tax
v.
Deepak Fertilizers and Petrochemicals Corpn. Ltd.*
S. C. DHARMADHIKARI AND G.S. KULKARNI, JJ.
IT APPEAL NO. 5727 OF 2010
APRIL  1, 2014
Section 260A, read with section 254, of the Income-tax Act, 1961 - High Courts - Appeal to (Conditions precedent) - Whether where Tribunal in impugned order had just followed its own earlier view and that too in relation to same assessee, appeal against order of Tribunal did not raise any substantial question of law - Held, yes - Whether for better administration of justice, in all memos of appeal filed by revenue, an additional statement in nature of explanation is to be filed as to whether revenue has filed any appeal to High Court in relation to very assessee to challenge Tribunal's earlier order or orders of prior assessment year and if not filed, reason for same - Held, yes [Paras 3 & 4] [In favour of assessee] 

No leave can be granted to company to submit Form 32 with RoC to intimate vacation of office

CL : No leave can be granted to company to submit Form 32 with RoC to intimate vacation of office by director before action contemplated in requisite provision is actually taken
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[2014] 50 taxmann.com 211 (CLB - Kolkata)
COMPANY LAW BOARD, KOLKATA BENCH
Dr. Pramod Kanoi
v.
Sapoi Tea Co. Ltd.
A. BANDOPADHYAY, MEMBER
CA NO. 580/2012
CP NO. 920/2011
AUGUST  14, 2013
Section 167, read with section 241, of the Companies Act, 2013/ Section 283, read with section 397, of the Companies Act, 1956 - Directors - Vacation of office by - Respondent company filed application praying for leave to submit Form 32 with ROC to intimate vacation of office as director by petitioner in main petition under sections 397 and 398 - Whether no leave could be granted because it would tantamount to an advance ruling in respect of invoking relevant provision of Act before action contemplated in requisite provision is actually undertaken - Held, yes - Whether however, respondent company would have right to invoke provision of section 283(1)(g) after getting satisfied that inbuilt criteria, as laid down in said provision, have been duly fulfilled in accordance with law - Held, yes [Para 6] 

If requisite mens rea exists, penalty provided under Section 11AC is mandatory

Excise & Customs : If requisite mens rea exists, penalty provided under Section 11AC is mandatory; hence, where Tribunal had reduced penalty despite upholding charge of evasion, matter was remanded back to Tribunal for consideration afresh
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[2014] 50 taxmann.com 304 (Punjab & Haryana)
HIGH COURT OF PUNJAB & HARYANA
Commissioner of Central Excise, Commissionerate, Jalandhar
v.
Mohan Singh & Co.*
ADARSH KUMAR GOEL AND AJAY KUMAR MITTAL, JJ.
C.E.A NO. 73 OF 2007 (O & M)†
SEPTEMBER  27, 2010
Section 11AC, of the Central Excise Act, 1944, read with section 78, of the Finance Act, 1994 and section 114A, of the Customs Act, 1962 - Penalty - For evasion of duty/tax - Department issued notice alleging evasion of duty and confirmed demand along with penalty - Tribunal reduced penalty under section 11AC, while upholding finding of wilful evasion - Revenue argued that penalty equal to duty was mandatory - HELD : If requisite mens rea exists, penalty provided under section 11AC is mandatory - Hence, impugned order of Tribunal was set aside and matter was remanded back for fresh decision in accordance with law [Para 4] [In favour of revenue]

CESTAT dismissed said appeal as not maintainable

Service Tax : Where assessee had filed appeal against order of Joint Commissioner before CESTAT, CESTAT dismissed said appeal as not maintainable and assessee's request to transmit appeal papers to Commissioner (Appeals) was rejected
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[2014] 50 taxmann.com 119 (Bangalore - CESTAT)
CESTAT, BANGALORE BENCH
G.P. Josekuttan
v.
Commissioner of Central Excise, Cochin*
P.G. CHACKO, JUDICIAL MEMBER
AND M.VEERAIYAN, TECHNICAL MEMBER
MISC. ORDER NO. 642 OF 2012
FINAL ORDER NO. 576 OF 2012
STAY ORDER NO. 1440 OF 2012
MISC. APPLICATION NO. 447/2012
STAY APPLICATION NO. 1502/2011
SERVICE TAX APPEAL NO. 2446/2012
AUGUST  8, 2012
Section 86 of the Finance Act, 1994, read with section 35C of the Central Excise Act, 1944 and section 129B of the Customs Act, 1962 - Appeals - Orders of - Appellate Tribunal - Assessee filed an appeal before Tribunal on 12-10-2011 against order of Joint Commissioner dated 23-5-2011 relying upon a preamble in said order that appeal would lie to Tribunal - Department argued that said

Reassessment to make addition for said provision be deleted

IT : Where assessee had furnished full details in respect of its claim for bad debts and provision made for diminution in investments in its original computation of income, reassessment to make addition for said provision be deleted
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[2014] 49 taxmann.com 206 (Delhi - Trib.)
IN THE ITAT DELHI BENCH 'H'
VXL Technologies Ltd.
v.
Assistant Commissioner of Income-tax*
G.D. AGRAWAL, VICE-PRESIDENT
AND CHANDRA MOHAN GARG, JUDICIAL MEMBER
IT APPEAL NO. 2728 (DELHI) OF 2013
[ASSESSMENT YEAR 2004-05]
DECEMBER  13, 2013
Section 115JB, read with section 147, of the Income-tax Act, 1961 - Minimum alternate tax (Re-assessment) - Assessment year 2004-05 - Reassessment was initiated against assessee on ground that provisions made for diminutions in nature of investments as also for bad debts were not added to net profit by assessee - It was found that assessee had given full details pertaining to said claims in profit and loss account and in its computation of income - Further, assessee had furnished report in form 29B under section 115JB for computing book profit of company which was also placed before authorities below at time of relevant proceedings - Whether, on facts, initiation of reassessment proceedings after expiry of 4 years was not justified - Held, yes [Para 10] [In favour of assessee]

Assessee carrying out work on job basis was not entitled to deduction under section 10B

IT : Where in original assessment proceedings assessee had, on a specific query raised by Assessing Officer, informed him that it was carrying out manufacturing/production activity on 'job work basis' and despite that Assessing Officer allowed deduction under section 10B, assessment could not be reopened on ground that assessee carrying out work on job basis was not entitled to deduction under section 10B
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[2014] 50 taxmann.com 57 (Delhi)
HIGH COURT OF DELHI
Swarovski India (P.) Ltd.
v.
Deputy Commissioner of Income-tax*
BADAR DURREZ AHMED AND SIDDHARTH MRIDUL, JJ.
W.P. (C) NO. 1909 OF 2013
AUGUST  8, 2014
Section 10, read with section 147, of the Income-tax Act, 1961 - 100 per cent export oriented undertakings (Reassessment) - Assessment year 2005-06

Where all purchase of goods were accounted in books in support of transported goods, Tribunal's order that there was no suppression of purchase cannot be faulted with

CST & VAT : Where all purchase of goods were accounted in books in support of transported goods, Tribunal's order that there was no suppression of purchase cannot be faulted with
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[2014] 50 taxmann.com 122 (Madras)
HIGH COURT OF MADRAS
State of Tamil Nadu
v.
S.M. Enterprises*
MRS. CHITRA VENKATARAMAN AND T.S. SIVAGNANAM, JJ.
TAX CASE (REVISION) NO. 51 OF 2009†
SEPTEMBER  25, 2013
Section 12, read with section 16, of the Tamil Nadu General Sales Tax Act, 1959 - Procedure to be followed by assessing authority - Department detained 100 cases of insulation varnish - Quantity in Bill was mentioned as 50 cases - 100 cases purchased from one 'M' was accounted in day book - Further, bill of purchase of 50 cases given to roving squad was also accounted for at ledger folio - Whether there was no purchase suppression to result in sale suppression - Held, yes - Whether assessment of additional quantity was to be cancelled and consequently, no penalty could be levied under section 12(5)(iii) - Held, yes [Para 4] [In favour of assessee]

Huge cash in hands of vendors and corresponding withdrawals by purchasing of land by assessee to be verified for making addition in hands of assessee

IT : Huge cash in hands of vendors and corresponding withdrawals by purchasing of land by assessee to be verified for making addition in hands of assessee
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[2014] 50 taxmann.com 56 (Allahabad)
HIGH COURT OF ALLAHABAD
Commissioner of Income-tax
v.
Sanjeev Kumar Agarwal*
TARUN AGARWALA AND DR. SATISH CHANDRA, JJ.
IT APPEAL NOS. 113 OF 2011 & 53 OF 2012
& 41 OF 2013
IT APPEAL DEFECTIVE NO. 24 OF 2013†
AUGUST  25, 2014
Section 69A of the Income-tax Act, 1961 - Unexplained moneys (On money) - Assessment year 2005-06 - Whether it is a common practice that property is registered on circle rate and remaining money is paid as on money but in absence of any evidence same cannot be applied - Held, yes - Assessee purchased property from venders