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HIGH COURT JUDGMENTS 2011

AIT-2011-488-HC
M/s Puriya Industrial Packaging (P) Ltd. Vs. CCE, Ahmedabad

Service Tax: outward transport service used by the manufacturers for transportation of finished goods from the place of removal upto the premises of the purchaser is covered within the definition of input service provided in rule 2(1) of the Cenvat Credit Rules, 2004

AIT-2011-489-HC
Prasad Koch Technik Tech Pvt. Ltd. Vs. ACIT, Ahmedabad

In the reasons recorded, there is not even a prima facie belief or disclosure that on what basis, the AO has formed his reason to believe that such payment to the foreign supplier attracted tax in India. In absence of any live link with the reasons recorded and the belief formed, we are of the opinion that the notice was wholly invalid.

AIT-2011-490-HC
M/s. Indian Additives Ltd. Vs. DCIT, Madras

Whether on facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in excluding the following from income eligible for deduction under Section 80-IB of the Income-tax Act, 1961:

AIT-2011-491-HC
Sumangal Overseas Ltd. Vs. CIT, Delhi

the claim was neither mala fide nor false. It was a bona fide claim preferred by the assessee, who had also disclosed all the facts relating to and material to the computation of his income. In these circumstances, the assessee fulfilled both the conditions to be outside the purview of Explanation (1) to Section 271(1)(c) of the Act

AIT-2011-494-HC
RRB Consultants and Engineers Pvt. Ltd. Vs. DCIT, Delhi

the assessee has not failed or omitted to disclose material facts either deliberately or intentionally. On the other hand, full and true information and details were furnished and given during the course of the original assessment proceedings. The relevant and germane facts were truly and fully disclosed. As per the case of the Revenue, the AO made an error of judgment and did not form a proper legal opinion. A wrong legal inference was drawn from the facts stated by the assessee and on record. Once primary facts have been disclosed then, it is for the AO to draw proper legal conclusion and apply the provisions of the statute. In the present case, it is not alleged that any fact or factual detail was embedded in the evidence/books of accounts which the AO could have uncovered but had failed to do so. The letter written by the assessee dated 10th January, 2006, spelt out and in categorical terms had stated truly and fully the material facts. Nothing remained to be discovered or unearthed.

AIT-2011-497-HC
Wimco Seedlings Ltd. Vs. CIT, New Delhi

whether common expenses incurred by an assessee can be allocated towards taxable and non-taxable income under the provisions of Section 14A of the Income Tax Act, 1961.

AIT-2011-498-HC
S & S Power Switchgear Ltd. Vs. CIT, Chennai

Whether the Tribunal was right in holding that the expenses incurred in the foreign travel of the Chairman's wife is to be allowed as a business expenditure?

AIT-2011-499-HC
Atsushi Yoshida Vs. ACIT, Delhi

The petitioners herein were/are employees of M/s Tokio Marine and Nichido Fire Inc. Limited. As per the terms of employment between the petitioners and the employer, they were paid tax free salary in India. The petitioners had filed returns of income for the Assessment Year 2008-09 enclosing therewith Form 16 issued by the employer. In the said original returns of income, the petitioners had, as per Form 16, grossed up and included the tax component as the petitioners were drawing tax free salary in India, though the tax was being paid by the employer. Subsequently, the petitioners filed revised returns enclosing therewith revised Form 16 issued by the employer, in which some part of grossing up towards non-monetary perquisites was deleted from the salary statement. Accordingly, the petitioners in the revised returns claimed refund of the tax, which had been deducted at source.

AIT-2011-500-HC
M/s Glyph International Ltd. Vs. Union of India and others

Service Tax: Section 66A as inserted by Finance Act, 2006 vide notification dated 18.4.2006 w.e.f. 1.5.2006 providing charge of service tax on services received from outside India provided, or to be provided by a person, who has established a business or has a fixed establishment from which the services are provided and are received by a person (recipient), who has his place of business, fixed establishment, permanent address or usual place of residence in India to be taxable services and the Taxation of Services (Provided from Outside India) Rules, 2006 made in exercise of powers conferred by Sections 93 and 94 read with Section 66A of the Finance Act, 1994 notified on 19.4.2006 and amended by notification dated 27.2.2010, does not suffer from vice of unconstitutionality, either on the ground of lack of legislative competence, or on the ground of extra territorial operation of laws.

AIT-2011-502-HC
EHPT India P. Ltd. Vs. CIT, Delhi

ITAT was correct in law in accepting head-count method of distribution of expenses adopted by the assessee for allocation of indirect expenses between STP unit and non-STP unit. - ITAT was correct in law in applying Rule of consistency when the method of allocation adopted by the assessee was not the correct method of accounting

AIT-2011-503-HC
M/s Dharampal Satyapal Ltd. Vs. DCCE, Guwahati

Whether the decision in the R.C. Tabacco case leaves open the question as to whether a Show Cause Notice is required under law to be issued before recovery of excise duty refunds under Section 154 of the Finance Act, 2003.

AIT-2011-504-HC
HCL Corporation Limited Vs. ACIT & Anr., Delhi

the petitioner had fully and truly disclosed all the material facts necessary for the purposes of assessment. That being the case, there is no escape from the fact that the bar of four years would be clearly applicable. Since the notice under section 148 was issued beyond the period of four years the notice and all proceedings pursuant thereto would be contrary to law. As such the impugned order as also the notice under section 148 are set aside and any proceeding pursuant thereto are also set aside.

AIT-2011-505-HC
M/s. Cairn Energy India Pty. Limited Vs. DDIT (International Taxation), Chennai

there being no allegation that the assessee had not disclosed truly and fully the material facts, on the mere allegation that the claim would not fall under Section 44BB of the Act, the Officer could not review his order in the guise of exercise of power under Section 147 to reopen the assessment and there cannot be any assumption of jurisdiction under Section 147 of the Act.

AIT-2011-506-HC
M/s Megh Raj Bansal Vs. CE and STAT and Another

Service Tax: Tribunal was not justified in not accepting the request for adjournment for the reason the medical certificate was not attached. While seeking adjournment, on the medical ground by the counsel, the medical certificates are not expected to be produced. It is the statement made by the counsel, which is expected to be accepted unless the circumstances are brought to the notice of the Court or Tribunal to decline the request for adjournment sought on medical ground. We find that there was no reason to decline the request for adjournment, when sought by the counsel on the medical ground

AIT-2011-509-HC
Major Deepak Mehta Vs. ACIT, Raipur

the Tribunal was justified in annulling the assessment framed u/s 143 (3)/147 by the assessing officer - the main object and purpose of Section 147 read with Section 148 is that if there is any escaped assessment and the AO has reason to form the opinion a notice must be given to the assessee to file returns or to show that there was no escaped income and under Section 152 (2) the proceedings may be dropped. In that context, explanation provides that along with the proceedings for the escaped income which had formed reason to believe and the assessee has been properly intimated to show his case, proceedings of the other incomes may also be examined along with the said income.

AIT-2011-510-HC
M/s Honda Siel Car India Limited Vs. Union of India, Delhi

We are satisfied that the Settlement Commission had jurisdiction and the condition of full and true disclosure of duty liability stipulated in Section 127B of the Act is not violated and infringed in the present case. Reasons are as under:-

AIT-2011-511-HC
Airport Authority of India Vs. CIT, Delhi

Full Bench: (i) Whether on the facts and circumstances of the case and in law, the ITAT has erred in holding that the appellant was not entitled to deduct the amount provided under mercantile system of accounting towards the liability on account of expenditure to be incurred in removal of encroachments in and around the technical area of the Airport which was necessitated out of safety and security consideration in the normal course of business of authority enjoined with the responsibilities of maintenance and operation of airports all over India?

AIT-2011-512-HC
Pitney Bowes India Pvt. Ltd. Vs. CIT, Delhi

ITAT was correct in law in holding that the claim of deduction of expenditure incurred as non-compete fee aggregating to Rs.5,94,47,290/- could not be allowed to it either in the instant year or even in five years on deferred basis.

AIT-2011-513-HC
Ericsson A.B. Vs. DIT, Delhi

payment received by the assessee was towards the title and GSM system of which software was an inseparable parts incapable of independent use and it was a contract for supply of goods. Therefore, no part of the payment therefore can be classified as payment towards royalty.

AIT-2011-514-HC
Cadila Healthcare Ltd. Vs. ACIT, Ahmedabad

mere opinion of the Audit Party cannot form the basis for the AO to reopen the closed assessment that too beyond four years from the end of relevant assessment year. - the AO had categorically come to the conclusion that the objection of the audit party is not valid and that the assessee's explanation with respect to non requirement of collection of TDS was required to be accepted. In that view of the matter, we have no hesitation in striking down the notice for reopening. Consequently, the order rejecting the objections of the petitioners must also go. In the result, the petition is allowed. The impugned notice is quashed. The petition stands disposed of accordingly.

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