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HIGH COURT JUDGMENTS 2009

AIT-2009-452-HC
M/s Bhandari Hosiery Exports Ltd. Vs. CCEC, Ludhiana

Service Tax: levy of service tax on recipient of services of commission agent who has been residing outside India.
the Finance Act, 1994 was for the first time amended on 18.4.2006 whereby the revenue acquired legal authority to levy service tax on the recipient of taxable service from a person who is resident in India or has business in India. Accordingly, such a person becomes liable to payment of service tax when he received service outside India from a person who is non-resident or is from outside India after 18.4.2006. Earlier to the enforcement of Section 66A there was no authority vested by law in the revenue to levy service tax on a person who is resident in India but who receive services from a person resident outside India. Till the time Section 66A was enacted only the person who rendered the service was liable to pay tax and not the recipient of the service. Accordingly, the revenue did not have any authority to levy service tax on the assessee.

AIT-2009-455-HC
M/s Kohli Brothers Color Lab (P) Ltd. Vs CIT, Lucknow

Whether on the fact and circumstances of the case the learned Income Tax Appellate Tribunal was right in law in holding that it is not obligatory on the part of the assessee to prove that the debt written off by him is indeed a bad deft for the purpose of allowance u/s 36 (1) (vii) of the I. T. Act, 1961 by relying on the order passed by Income Tax Appellate Tribunal in the case of Dy. CIT Vs. Oman International Bank SAOG, AIT-2006-41-ITAT?

AIT-2009-456-HC
Express Newspapers Limited Vs. DCIT, Chennai

the Tribunal fell in error in invoking the jurisdiction of Section 254(2) of the Act to re-write the judgment while reviewing the issue already decided, which bears no apparent mistake on the face of the record so as to invoke the jurisdiction. Hence, the writ petition is allowed and the rule is made absolute.

AIT-2009-460-HC
Essar Steel Limited Vs. Union of India

the levy of export duty on goods supplied from the Domestic Tariff Area to the Special Economic Zone is not justified. The petitioners are, therefore, not to be called upon to pay export duty on movement of goods from Domestic Tariff Area to Special Economic Zone units or developers.
the movement of goods from the Domestic Tariff Area into the Special Economic Zone is treated as an export under the SEZ Act, 2005, which does not contain any provision for levy of export duty on the same. On the other hand, export duty is levied under the Customs Act, 1962 on export of goods from India to a place outside India and the said Act does not contemplate levy of duty on movement of goods from the Domestic Tariff Area to the Special Economic Zone

AIT-2009-466-HC
M/s India Pistons Limited Vs. CIT, Madras

in order to value the closing stock, the customs duty payable on the raw materials imported, which is still not cleared from the customs frontier and the excise duty payable on the goods not cleared from the factory and when the taxable event is yet to come, the excise duty can not be included in the valuation of closing stock
increase in the liability of the assessee during the previous year on account of the change in the rate of exchange is part of the actual cost of the machinery acquired from a foreign country and the assessee is entitled to investment allowance on the additional cost.

AIT-2009-468-HC
Blue Star Limited Vs. Union of India

where an order is set aside and remanded to the Assessing Officer for deciding the matter de novo, what is the relevant date for payment of interest under Section 11AA of the Central Excise Act.
Setting aside an order would mean that there is no order and a party is relegated to fresh adjudication. The stage of an adjudication cannot be said to be a determination. An adjudication will culminate in an order. That order would be the determination and/or ascertainment of duty. The relevant date for commencement of time the interest would be from the date the duty is determined if not paid within three months. Once there be an order, setting aside the entire order of determination there is no ascertained duty payable

AIT-2009-469-HC
M/s E.I.D. Parry (India) Ltd. Vs. CIT, Chennai

the Tribunal was right in holding that the assessee is entitled to adjust the MAT credit before charging interest u/s 234B & 234C. - the MAT credit can be given priority of set off against tax payable, contrary to the scheme of Schedule G of Form 1- the intention of the legislature is to give  tax credit to tax and not to the tax and interest.  Once the intention is  clear, the revenue cannot rely on the Form-I to say that the MAT credit under Section 115JAA should be given  only after tax and interest. Rule 12(1)(a) and Form-I cannot go beyond the provisions of the Act.  Form-I cannot lay down the order of priority  of adjustment of TDS, advance Tax, MAT credit under Section 115JAA which is contrary to the provisions of the Act.

AIT-2009-473-HC
Lawyers Collective Vs. Bar Council of India, Mumbai

whether the permissions granted by the Reserve Bank of India to the respondent Nos.12 to 14 foreign law firms to establish their place of business in India (liaison office) under Section 29 of the Foreign Exchange Regulation Act, 1973 are legal and valid ? Secondly, assuming such permissions are valid, whether these foreign law firms could carry on their liaison activities in India only on being enrolled as advocates under the Advocates Act, 1961 ? To be specific, the question is, whether practising in non litigious matters amounts to ‘practising the profession of law’ under section 29 of the Advocates Act, 1961 ?

AIT-2009-474-HC
M/s Exotic Associates Vs. CCE, Ahmedabad

Whether penalty was liable to be imposed on the assessee in case where part amount of duty had been deposited by the assessee before issue of show-cause notice?
Whether it was mandatory to impose penalty equal to amount of duty alleged to have been evaded, or discretion to impose less penalty or no penalty was vested in the authorities under Section 11AC of the Act?

AIT-2009-475-HC
M/s Inductotherm (India) Pvt. Ltd. Vs. Union of India

petition under Article-226 of the Constitution of India praying for quashing and setting aside the Order In Appeal- we quash and set aside the order passed by the Commissioner (Appeals) only on the short ground that the Commissioner (Appeals) is bound to follow the order of the CESTAT in petitioner's own case in earlier year so long as the said decision is not reversed or suspended by the High Court or Supreme Court, or any distinguishing feature is not pointed out by him

AIT-2009-476-HC
Nish Fibres Vs. CCE & C, Surat

Availed credit on capital goods-assessee claimed depreciation on the amount representing central excise duty paid on the said capital goods-The whole idea is that the assessee should not be permitted to claim double benefit, i.e. under the Income Tax Act as well as Central Excise Rules. Admittedly, the appellant has not claimed the benefit under the Income Tax Act and the claim regarding depreciation was withdrawn by filing the revised return and that revised return has been accepted. Considering these undisputed facts, there is no reason to deny the modvat credit to the respondent assessee

AIT-2009-477-HC
Bharat Alumunium Co. Ltd. Vs. CIT, Delhi

Whether the Income Tax Appellate Tribunal was correct in law in allowing the amount of Rs.3.76 Crores (wrongly written by ITAT as 3.76 lacs) being capital expenditure not represented by any assets to the assessee?
Whether the Income Tax Appellate Tribunal was correct in law in treating the amount of Rs.3.76 Crores as revenue expenditure?

AIT-2009-478-HC
M/s BT Steels Limited Vs. CCEC, Ludhiana

Whether intimation of the date of closure of the furnace sent after three days due to intervening holidays can be considered as proper when the Trade Notice issued in this regard clearly provides to send the intimations in such cases through post/telegram?

AIT-2009-483-HC
Karamchand Thapar & Bros. (Coal Sales) Ltd. & Anr. Vs. Union of India & Ors.

Service Tax: The application dated 2.11.2005 of the petitioner company being for registration in the category of business auxiliary service, registration had to be granted in the category of business auxiliary service. The petitioner never applied for registration in the category of service of clearing and forwarding agency and could not, therefore, have been granted registration in that category.
the expression ‘clearing and forwarding agent’ is apparently conjunctive and not disjunctive. Only clearing activities would not attract service tax in the category of service of clearing and forwarding agent. Similarly only forwarding activity would also not attract tax in the category of service of clearing and forwarding agent. The service provider would necessarily have to be engaged in providing clearing and forwarding services in order to be taxable in the category of clearing and forwarding agent.

AIT-2009-484-HC
Sitaldas K. Motwani Vs. DGIT
(International Taxation), Mumbai

petition directed against the order passed by the Director General of Income Tax (International Taxation, New Delhi u/s.119(2)(b) of the Income Tax Act,1961, whereby and whereunder, the prayer for condonation of delay in filing the return for claiming refund for the A.Y.200001 was rejected

AIT-2009-486-HC
M/s Bhiwani Fibers Limited Vs. CCE, Rohtak

Whether the Tribunal is correct in holding that penalties (including personal penalties imposed on Managing Director and other employees of the firm) are not attracted where the respondents have deposited the duty prior to issue of show cause notice
there was fraudulent and clandestine removal of goods with the intention to evade duty and Section 11AC of the Act would be attracted to the facts of the present case. Therefore, there is no escape from the conclusion that penalty equivalent to the amount of duty was imposable

AIT-2009-488-HC
M/s. D.J. Stone Crusher Vs. CIT, Shimla

the operation of mining and crushing which takes place in stone crusher amounts to manufacturing within the meaning of Section 80IB of the Income Tax Act

AIT-2009-490-HC
Medi Assist India TPA Pvt. Ltd. Vs.
DCIT (TDS), Karnataka

A perusal of the terms of payment would clearly indicate that it is the duty and the obligation of the TPA to pay the hospitals. Indeed the insurer in this regard will not have any role to play, in as much as, it is only to replenish the amount in the float account once the amount deposited therein is exhausted. Ultimately the agreement entered into inter se between the hospital and the TPA for payment of money holds the field. In the circumstance, it cannot be said that the TPA who is the authority or the person to pay the amount to the hospital is not required to deduce the tax at source and section 194J is not attracted cannot be accepted

AIT-2009-491-HC
M/s Girnar Industries Vs. CIT, Kerala

whether blending and packing of tea for export in the industrial unit in the Special Economic Zone amount to manufacture or production of an article qualifying for exemption under Section 10A of the Act, that is, during the period prior to introduction of "blending" as "manufacture" with effect from 10.2.2006.
blending of tea is a manufacturing activity which entitles the appellant-assessee for exemption under Section 10A of the Income Tax Act for the assessment year 2004-2005
.

High Court Judgments 2009   Page1   Page2   Page3   Page4   Page5   Page6


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