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HIGH COURT JUDGMENTS 2013

AIT-2013-161-HC
M/s. Vodafone India Service Pvt. Ltd. Vs. Union of India

The petitioner seeks a writ of certiorari to quash and set aside a Transfer Pricing Order dated 31st October, 2011, passed by Additional Commissioner of Income-tax, Transfer Pricing to the extent that it relates to the addition of Rs.84,34,39,52,555/- on account of two unreported international transactions and a Draft Assessment Order dated 29th December, 2011, passed by Assistant Commissioner of Income-tax.

AIT-2013-162-HC
M/s K. Anand Caterers Vs. Union of India And Others

Service Tax: the petitioner states that the petitioner is liable to pay service tax and is registered with the service tax authorities. On 31.5.2013 a search was conducted on its business premise in which it was detected that the petitioner is required to pay Rs.60 lacs as service dues. He does not deny the liability and has challenged the garnishee order under Section 87 of the Finance Act, 1994 on the ground that the petitioner filed an application under Section 106 as amended by the Service Tax Voluntary Compliance Encouragement Scheme, 2013, which is operative from 1st October, 2007 to 31st December, 2012 and covers all the liability, which has to be paid as on 1st March, 2013.

AIT-2013-163-HC
M/s M.D. Overseas Limited Vs. DGIT (Inv.),
North and others 

The balance sheet of the M.D. Overseas Ltd for financial affairs of the Company dealing in import of bullion including gold and platinum bars discloses Short Term loans from banks of Rs.1066,185,849.00 from overseas branch of Indian Bank, as buyers credit facilities. The entire bullion imported is sold by petitioner Company in cash. With an issued subscribed and paid up capital of Rs.9,66,200/- only and the net profit of only Rs. 13 crores. The information of large amount of cash transactions in foreign bank may have generally raised doubts in bonafide manner on the nature of transactions. A large amount of accounted black money is floating in the market which poses a serious threat to the national economy. The Government of India has adopted several methods to discouraging the parallel economy being run by unscrupulous persons. The Financial Intelligence Unit (FIU), Ministry of Finance, Government of India is engaged in collecting such information against the money laundering, terrorist financing and related crimes. The sources and methods of the organisation collecting and processing such sensitive information cannot be subjected to public scrutiny to jeopardize the interest of the organisation and national interest.

AIT-2013-164-HC
M/s Lucknow Development Authority Vs. CIT, Lucknow

For the applicability of proviso to Section 2(15), the activities of the trust should be carried out on commercial lines with intention to make profit. Where the trust is carrying out its activities on non-commercial lines with no motive to earn profits, for fulfillment of its aims and objectives, which are charitable in nature and in the process earn some profits, the same would not be hit by proviso to section 2(15). The aims and objects of the assessee-trust are admittedly charitable in nature. Mere selling some product at a profit will not ipso facto hit assessee by applying proviso to Section 2(15) and deny exemption available under Section 11. The intention of the trustees and the manner in which the activities of the charitable trust institution are undertaken are highly relevant to decide the issue of applicability of proviso to Section 2(15).

AIT-2013-166-HC
Claris Lifesciences Ltd. Vs. Union of India

whether the petitioner herein is liable to pay education cess on the amount worked out by calculating the custom duty payable on the goods in respect of clearance made by 100% EOU to DTA. - once the measure of Custom Duty equivalent to Central Excise Duty leviable on the said goods had been worked out, the question of levying the education cess separately in respect of clearance by 100% EOU to DTA would not arise.

AIT-2013-169-HC
Avaya Global Connect Ltd. Vs. Union of India

Service Tax: there is no bar under Section 35C of the Central Excise Act, 1944 that while referring the case back to the original authority, the Tribunal cannot impose any condition and/or issue any direction of deposit of some amount before any fresh adjudication on remand and it is held that while remanding the case back to the original authority in exercise of powers under Section 35C of the Central Excise Act, 1944, Appellate Tribunal may issue any direction as it deems fit which can be inclusive of deposit of some amount.

AIT-2013-170-HC
Posco India Delhi Steel Processing Centre Pvt. Ltd. Vs. CC, Ahmedabad

Refund of 4 per cent SAD-sale of the imported goods by the respondent after undertaking cutting and slitting of coils in varied thickness, length and width of the goods would vitiate the condition of subsequent sale prescribed in exemption notification No.102/2007Customs dated 14.09.2007.

AIT-2013-171-HC
Welspun Corp. Ltd. Vs. Union of India

The petitioner cleared its goods manufactured in the unit situated in Kutch region for export during the period between 24.8.2007 and 31.8.2007. Admittedly such goods though were cleared for export after following conditions mentioned in the Exemption Notification No.19/2004, the actual export took place on or around 23.9.2007. In the meantime, on 17.9.2007 the Government of India issued amendment Notification No.37/2007 amending the Notification No.19/2004 and added condition (h) in paragraph 2 of the said Notification. By virtue of such amendment, rebate was made inadmissible in case of exports of goods by the manufacturers availing benefits under various Notifications mentioned therein including the Kutch area Exemption Notification No.39/2001.

AIT-2013-173-HC
Vodafone West Limited Vs. ACIT, Ahmedabad

Petitioner herein is a limited company which filed its return of income for the assessment year under question on 30.10.2007, declaring its total income as Nil. On scrutiny, the assessment had been framed by the respondent under Section 143(3) of the Act on 29.12.2009.

AIT-2013-175-HC
M/s. Lily Exporters Pvt. Ltd. Vs. CIT, Kolkata

Where there is no finding that any details supplied by the assessee in its return are found to be incorrect or erroneous or false there is no question of inviting the penalty under Section 271(1)( c). A mere making of a claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. Such a claim made in the return cannot amount to furnishing inaccurate particulars.

AIT-2013-179-HC
M/s Motorola Solutions India Pvt. Ltd. Vs. CIT Faridabad and others

The petitioner prays for issuance of a writ, order or direction quashing notices dated 25.03.2013, 26.03.2013 and 28.03.2013, issued by respondent no.2 and for a direction to the respondents to refund Rs.26,26,87,000/- appropriated from the petitioner's bank account towards an alleged demand of tax, relating to assessment year 2005-06.

AIT-2013-180-HC
M/s Mittal Alloys Vs. CCE, Chandigarh

with introduction of Section 38A in the Central Excise Act, 1944, the omission or otherwise of Rule 96ZO(3) of the Rules would not affect any obligation or liability that had already accrued or incurred and, therefore, the submission that omission of Rule 96ZO(3) of the Rules would render adjudication of proceedings of abatement based upon Rule 96ZO(3) of the Rules a nullity, are without merit. 

AIT-2013-181-HC
Arcane Developers Pvt. Ltd. Vs. CIT, Delhi

whether interest of Rs.1,26,64,315/- paid to M/s Dharti Investments and Holding Limited on loan of Rs.25 crores could be allowed as expenditure under Section 36(1)(iii) of the Income Tax Act, 1961 and Rs.2,32,582/- on account of travel/statutory fees/audit fees etc can be allowed as expenditure under Section 37 of the Act.

AIT-2013-182-HC
M/s Roto Pumps Ltd. Vs. CIT

for calculating the deduction under Section 80HHC the turnover of the assessee of the industrial undertaking in Free Trade Zone of which profits and gains are exempt under Section 10A of the Act is not to be taken into consideration.

AIT-2013-183-HC
Bharat Petroleum Corporation Limited Vs. ITAT, Mumbai

a) Whether the Tribunal has power in terms of Rule 24 of the Tribunal Rules to dismiss an appeal before it without considering the merits of the appeal and only on the ground for want of prosecution? - b) Whether the application for recall of an order dismissing the petitioner's appeal for want of prosecution is an application which falls for consideration under Section 254(1) of the Act or under Section 254(2) of the Act?

AIT-2013-184-HC
M/s SAB Industries Vs. CIt, Chandigarh

1. Whether ITAT was justified in law in holding that the amount of Rs.9,71,360/- retained by the authorities, could not be treated as assessee's income for the year despite the fact that income was being assessed on accrual basis? - 2. Whether ITAT was justified in holding that interest u/s 234-B of the I.T.Act was not chargeable on the amount of deduction claimed u/s 80-IA notwithstanding the fact that ITAT had upheld the disallowance of deduction u/s 80-IA?

AIT-2013-185-HC
M/s. Poompuhar Shipping Corporation Ltd. Vs. ITO (International Taxation), Chennai

1. Whether the Tribunal was right in holding that the payment made for taking ship on time chartered basis would constitute "royalty" as defined under Section 9(1)(vi)(b) of the Income Tax Act and tax has to be deducted at source accordingly? - 2. Whether the Tribunal was right in not holding that as per the terms of "time charter of ships", the charterer merely acquires a right for performance of services by the ship owner for carriage of goods and is not for the use of ships pure and simple?

AIT-2013-187-HC
M/s. Metal Weld Electrodes Vs. CE and STAT, Chennai

The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962.

AIT-2013-188-HC
RayBan Sun Optics India Ltd. Vs. Dy. Commissioner (Appeals), Commercial Tax Department

Whether Rajasthan Tax Board was legally justified in not classifying the 'sun-glasses' under Entry 125 of Schedule IV of Part A as 'Spectacles, parts & components thereof, contact lens and lens cleaner' taxable @ 4% but classifying under the residuary clause under Schedule V @ 12.5%?”

AIT-2013-190-HC
Riddhi Steel and Tubes Pvt. Ltd. Vs. CIT, Ahmedabad

the Appellate Tribunal is right in law and on facts in deleting the addition of Rs. 10,39,75,306/- made by the A.O under Section 69B of the Act on account of difference in quantity and value of the stock as shown in the books vis-a-vis as shown to the Bank and confirmed by the CIT [A]

AIT-2013-191-HC
Shilp Gravures Ltd. Vs. CIT, Ahmedabad

the subjective satisfaction of the Assessing Officer for the purpose of reopening of the assessment is lacking in the instant case and, therefore, the Officer having the jurisdiction to issue notice on the belief that the income has escaped the assessment in fact had no belief while issuing notice and, therefore, as held in the case of Adani Exports Vs. Dy. CIT (supra) it was a colourable exercise of jurisdiction by the Assessing Officer by recording the reasons for which he obviously had no conviction, had initiated the reassessment proceedings solely at the instance of the audit party which cannot be sustained.

AIT-2013-192-HC
M/s Dynamic Enterprises Vs. CIT, Karnataka

Full Bench: When a retiring partner takes only money towards the value of his share and when there is no distribution of capital asset/assets among the partners there is no transfer of a capital asset and consequently no profits or gains is payable under Section 45(4) of the Income Tax Act

AIT-2013-194-HC
M/s. Future Gaming Solutions India Private Limited Vs. Union of India

Service Tax: transactions in lottery tickets are not liable to service tax under the provisions of the Finance Act, 1994, as amended by the Finance Act, 2012.

AIT-2013-195-HC
M/s. Pentasoft Technologies Ltd. Vs. DCIT, Chennai

the assessee had acquired the trade mark and licence to use the mark "Pentasoft" exclusively and also to carry on business in software development, export and training by restraining Pentamedia Graphics Limited from carrying out the same activities and therefore, they were intangible assets entitled to depreciation under Section 32(1)(ii) of the Act.  

AIT-2013-196-HC
Verizon Communications Singapore Pte Ltd. Vs. ITO (International Taxation), Chennai

1. Whether the Tribunal was right in holding that the payments received by the appellant from the Indian customers for provision of Bandwidth/Telecom Services outside India is royalty for the 'use of, or the right to use equipment' under Section 9(1)(vi) of the Act?

AIT-2013-197-HC
G.D. Builders Vs. UOI and Anr.

Service Tax: (1) After 46th Amendment to the Constitution, composite contracts can be bifurcated to compute value of the goods sold/supplied in contracts for construction of buildings with labour and material. The service portion of the composite contracts can be made subject matter of service tax. Aspect doctrine is applied for bifurcating/vivisect the composite contract

AIT-2013-201-HC
M/s. Deccan Cements Ltd. Vs. CIT, Hyderabad

the Tribunal was correct in law in holding that the assessee can be said to be running two industrial undertakings one in respect of mining and other in respect of manufacturing cement, although the company was engaged in the business of manufacturing cement and mining of limestone was only as incidental activity.

AIT-2013-202-HC
M/s. Maersk BV  Vs. DDIT (International Taxation), Mumbai

CIT (A) has categorically held that the UK firm – PONP is taxable in India and the share of profits of the appellant is exempt from income under Section 10(2A) the Act. However, once the partnership firm is taxable in India then the appellant's would become liable to pay tax under Section 188A of the Act which provides – every person who is a partner of a firm is jointly and severally liable along with the firm for the payment of tax, penalty or other sum payable by the firm. Consequently, appellant is liable or at least potentially liable to pay taxes in terms of the order of the CIT(A)as and when assessment of PNOP is finalized. It is a different matter that the tax on the partnership firm has not yet been crystallized as the assessment proceedings for the Assessment Year 2003-04 against partnership firm has been stayed by the order dated 7 June 2006 of Calcutta High Court. However, as and when an assessment order is passed in respect of the partnership firm, the appellant would be liable to pay tax not paid by the partnership firm by virtue the order of CIT(A) in the present Appeal. The case of the appellant which has been negatived is that it is not liable to pay any tax in view of India – Netherlands DTAA even in its capacity as a partner of PNOP which unless examined will become final against the appellant for all time. Consequently, the appellant is an aggrieved assessee in terms of Section 253 (1) of the Act in the facts of the present case.

AIT-2013-203-HC
M/s. Lalitha Chem Industries Pvt. Ltd. Vs. DCIT, Mumbai

the petitioner had disclosed fully and truly all material facts necessary for assessment. Even if it is assumed that the expenses were not allocated appropriately between the Tarapur Unit (non 80IB unit) and Silvasa unit(80IB unit) as contended by the revenue, yet the same was accepted by him while considering the deduction under Section 80IB of the Act. To permit the present proceedings for reassessment would be to permit the reopening proceedings on account of change of opinion. If reassessment is allowed, on the basis of said change of opinion, it would amount to review which is not permissible under the law.

AIT-2013-207-HC
Nokia India Private Limited Vs. Addl. Commissioner of Inocme Tax & Anr.

We permit and allow sale of assets by Nokia India to Microsoft/Microsoft International subject to fulfilment of the following conditions:- (i) Nokia Finland will be bound by the statement that they shall be jointly liable and shall pay tax demand determined and payable under Section 201/201(1A), interest and penalty thereon.

AIT-2013-208-HC
Goetze (India) Limited Vs. CIT, New Delhi

under proviso to clause (i) of the Explanation to Section 115JA reserve or provision made may relate to any period and not during the period between 1st April, 1997 and 31st March, 2001. These two dates are relevant as Section 115JA is applicable during this period. Clause (i) operates when an amount is withdrawn from provision made or reserve created but as per the proviso adjustment can be made only when at the time of creation of reserve or the provision, the amount in question was duly accounted for by increasing the book profits by the said reserve or provision.

AIT-2013-209-HC
Infrasoft Ltd. Vs. DIT, New Delhi

what has been transferred is not copyright or the right to use copyright but a limited right to use the copyrighted material and does not give rise to any royalty income. - ITAT was right in holding that the consideration received by the respondent Assessee on grant of licences for use of software is not royalty within the meaning of Article 12(3) of the DTAA between India and the USA.

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