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SELECT CASES IN DIRECT AND INDIRECT TAX LAWS

An Essential Reading for the Final Course


[Relevant for May, 2014 and November, 2014 Examinations]



















BOARD OF STUDIES
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
(Set up by an Act of Parliament)
September 2013
Edition
The Institute of Chartered Accountants of India
This case law digest has been prepared by the faculty of the Board of Studies with a view to assist
the students in their education. While due care is taken in reporting of the cases, if any errors or
omissions are noticed, the same may be brought to the attention of the Director, Board of Studies.
The Council of the Institute is not in anyway responsible for the correctness or otherwise of the
summary of cases published herein.


THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA


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A WORD ABOUT SELECT CASES
Direct Tax Laws and Indirect Tax Laws are the core competency areas of the Chartered
Accountancy course. The level of knowledge prescribed at the final level for these
subjects is advanced knowledge. For attaining such a level of knowledge, the students
have to be thorough not only with the basic provisions of the relevant laws but also
constantly update their knowledge regarding statutory developments and judicial
decisions. The Board of Studies has been bringing out publications in the area of direct
and indirect tax laws to help the students to update their knowledge on a continuous
basis. Select Cases in Direct and Indirect Tax Laws An essential reading for Final
Course is one such publication which helps the students in understanding the process of
judicial decisions.
The select significant judicial decisions reported during the years 2010 to 2013 (upto April
2013) are summarized and compiled in this edition of the publication. This, read in
conjunction with the Study Material, will enable the students to appreciate the significant
issues involved in interpreting and applying the provisions of direct and indirect tax laws
to practical situations. It will also help them to develop knowledge and expertise in legal
interpretation.

Happy Reading and Best Wishes for the forthcoming examinations!

The Institute of Chartered Accountants of India
INDEX
(Students may note that the Chapter headings correspond with the similar headings in the study
materials of Direct Tax Laws and Indirect Tax Laws)
Chapter Heading Page No. Chapter No. of
Study Material
DIRECT TAX LAWS

Income-tax

1. Basic Concepts 1 4 1
2. Income which do not form part of total income 5 6 3
3. Income from salaries 7-8 4
4. Income from house property 9 11 5
5. Profits and gains of business or profession 12 35 6
6. Capital gains 36 47 7
7. Income from other sources 48 50 8
8. Set-off and carry forward of losses 51 10
9. Deductions from gross total income 52 60 11
10. Assessment of various entities 61 66 13
11. Income-tax Authorities 67 68 20
12. Assessment procedure 69 75 21
13. Appeals and Revision 76 81 24
14. Penalties 82 87 25
15. Offences and Prosecution 88 26
16. Deduction, collection and recovery of tax 89 98 28
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Wealth-tax

17. Wealth Tax 99 100 1-3
INDIRECT TAX LAWS

Central Excise

1. Basic concepts 101-108 1
2. Classification of excisable goods 109-114 2
3. Valuation of excisable goods 115-117 3
4. CENVAT credit 118-124 4
5. Demand, adjudication and offences 125-131 8
6. Refund 132-133 9
7. Appeals 134-137 10
8. Exemption based on value of clearances (SSI) 138-141 13
9. Notification, departmental clarifications and trade
notices
142 14
10. Settlement Commission 143-146 18
Service tax & VAT

1. Basic concepts of service tax 147-152 1
2. Place of provision of service 153-154 2
3. Valuation of taxable service 155-156 4
4. Demand, adjudication and offences 157-159 7
5. Other provisions 160 8
Customs
1. Basic concepts 161-162 1
2. Levy of and exemptions from customs duty 163-164 2
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3. Classification of goods 165-166 4
4. Valuation under the Customs Act, 1962 167 5
5. Importation, exportation and transportation of good 168 7
6. Warehousing 169-170 8
7. Demand and appeals 171-174 9
8. Refund 175-176 10
9. Provisions relating to illegal import, illegal export,
confiscation, penalty & allied provisions
177-181 12
10. Settlement Commission 182-183 13
11. Miscellaneous Provisions 184-185 15

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INCOME TAX

The Institute of Chartered Accountants of India


The Institute of Chartered Accountants of India
1
1
BASIC CONCEPTS
1. Can power subsidy received by the assessee fromthe State Government, year after
year, on the basis of actual power consumption be treated as a capital receipt?
CIT v. Rassi Cement Ltd. (2013) 351 ITR 169 (A.P.)
In this case, the assessee received power subsidy from the State Government and
treated it as a capital receipt. The Assessing Officer, however, denied the assessees
claim, contending that the power rebate given by the Electricity Department cannot be
capitalized as the same is given as a rebate which is in the nature of revenue receipt.
The High Court observed the decision of the Supreme Court in Sahney Steel & Press
Works Ltd. v CIT (1997) 228 ITR 253, where incentives (including power subsidy)
granted year after year were treated as supplementary trade receipts. The power subsidy
granted after commencement of production is based on actual power consumption and
has nothing to do with the investment subsidy given for establishment of industries or
expanding industries in the backward areas.
The power subsidy was given as a part of an incentive scheme after commencement of
production, which is linked to production and therefore, has to be treated as a revenue
receipt, since such assistance is given for the purpose of carrying on of the business of the
assessee. The production incentive scheme is different from the scheme giving subsidy for
setting up industries in the backward areas. This is, in fact, a basis of discrimination in
deciding whether the subsidy has to be treated as a capital receipt or revenue receipt, i.e, the
purpose for which the subsidy is given should determine the nature of the receipt.
Accordingly, the High Court held that the power subsidy received by the assessee from
the State Government on the basis of actual power consumption has to be treated as a
trading receipt and not as a capital receipt.
2. Can amount collected by an NBFC fromits customers on adhoc basis towards
possible sales tax liability which is disputed by it, be treated as its income, if such
sumis not kept in a separate interest-bearing account?
SundaramFinance Ltd. v. Assistant Commissioner of Income-tax (2012) 349 ITR
0356 (SC)
The assessee is a non-banking financial company (NBFC) engaged in the business of
hire purchase financing, equipment leasing and allied activities. During the relevant
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previous year, it collected certain sums on an adhoc basis as contingent deposit from
its leasing and hire purchase customers to protect itself from sales tax liability, which is
under dispute. The assessee did not offer such sum to tax as income on the ground that
such sums collected as contingent deposits, in anticipation of sales tax liability under
dispute, were refundable, if the assessee were to succeed in its challenge to the levy of
the said tax. Therefore, the assessee contended that the sum of ` 36.47 lakhs collected
by it, is an imprest with a liability to refund. The amount is in the nature of deposits,
and hence, the same would not be taxable in the year of receipt but only in the year in
which the liability to refund the sales tax ceases.
The Supreme Court, observed that in determining whether a receipt is liable to be taxed,
the taxing authorities cannot ignore the legal character of the transaction which is the
source of the receipt. The taxing authorities are bound to determine the true legal
character of the transaction. The Apex Court noted the assessees own statement that
the sum of ` 36.47 lakhs was not kept in a separate interest-bearing bank account
(inspite of the assessees contention that it represented a contingent deposit) but formed
part of its business turnover (generally credited to the current account, which is non-
interest bearing).
Therefore, the Supreme Court, applying the substance over form test, held that the sum
of ` 36.47 lakhs constituted the income of the assessee, since it -
(i) formed part of the assessees turnover.
(ii) was collected from customers; and
(iii) was collected towards sales tax liability.
3. What is the nature of liquidated damages received by a company fromthe supplier
of plant for failure to supply machinery to the company within the stipulated time
a capital receipt or a revenue receipt?
CIT v. Saurashtra Cement Ltd. (2010) 325 ITR 422 (SC)
The assessee, a cement manufacturing company, entered into an agreement with a
supplier for purchase of additional cement plant. One of the conditions in the agreement
was that if the supplier failed to supply the machinery within the stipulated time, the
assessee would be compensated at 5% of the price of the respective portion of the
machinery without proof of actual loss. The assessee received ` 8.50 lakhs from the
supplier by way of liquidated damages on account of his failure to supply the machinery
within the stipulated time. The Department assessed the amount of liquidated damages
to income-tax. However, the Appellate Tribunal held that the amount was a capital receipt
and the High Court concurred with this view.
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The Apex Court affirmed the decision of the High Court holding that the damages were
directly and intimately linked with the procurement of a capital asset i.e., the cement plant,
which lead to delay in coming into existence of the profit-making apparatus. It was not a
receipt in the course of profit earning process. Therefore, the amount received by the
assessee towards compensation for sterilization of the profit earning source, is not in the
ordinary course of business, hence it is a capital receipt in the hands of the assessee.
4. In case the share capital is raised in a foreign country and repatriated to India on
need basis fromtime to time for approved uses, can the gain arising on the
balance sheet date due to fluctuation in foreign exchange, in respect of that part of
share capital which is to be used as working capital, be treated as a revenue
receipt?
CIT v. J agatjit Industries Ltd. (2011) 337 ITR 21 (Delhi)
On this issue, the assessee contended that the entire gain arising from the fluctuation in
foreign exchange on the balance sheet date, in respect of the share capital raised in
foreign country, should be treated as capital receipt as the source of funds was capital in
nature.
However, as per the Tribunals decision, gain due to fluctuation in foreign exchange
arising on that part of share capital which is used for acquiring fixed assets should be
treated as capital receipt and the remaining gain that arises on that part of share capital
which is used as working capital will be treated as revenue receipt and accordingly,
would be chargeable to tax.
The Delhi High Court observed that in this case, the manner of utilization of such fund partly
for acquiring fixed asset and partly as working capital was approved by the Ministry of
Finance. The High Court held that the capital raised, whether in India or outside, can be
utilized both for the purpose of acquiring fixed assets and to meet other expenses of the
organization i.e. as working capital. For determining the nature of receipts, due consideration
should be given to the source of funds and not to the ultimate use of the funds.
Therefore, the entire gain has to be treated as capital receipt as the source of fund in this
case is capital in nature.
5. Can subsidy received by the assessee fromthe Government of West Bengal under
the scheme of industrial promotion for expansion of its capacities, modernization
and improving its marketing capabilities be treated as a capital receipt?
CIT v. Rasoi Ltd. (2011) 335 ITR 438 (Cal.)
In the present case, the assessee received subsidy by way of financial assistance in the
period of crisis for promotion of the industries mentioned in the scheme which had
manufacturing units in West Bengal and which were in need of financial assistance for
expansion of their capacities, modernization and improving their marketing capabilities. The
subsidy was a one time receipt and was equivalent to 90% of the amount of sales tax paid.
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The Assessing Officer, relying on the decision of the Supreme Court in the case of
Sahney Steel & Press Works Ltd. v CIT (1997) 228 ITR 253, came to the conclusion
that since the subsidy received from the Government was 90% of the sales tax paid, the
same was in the form of refund of sales tax paid and hence, should be considered as a
revenue receipt.
The Calcutta High Court, applying the rationale of Supreme Court in CIT v. Ponni Sugars
& Chemicals Ltd. (2008) 306 ITR 392, observed that if the object of the subsidy is to
enable the assessee to run the business more profitably, the receipt is a revenue receipt.
On the other hand, if the object of the assistance is to enable the assessee to set up a
new unit or to expand an existing unit, the receipt would be a capital receipt. Therefore,
the object for which subsidy is given determines the nature of the subsidy and not the
form of the mechanism through which the subsidy is given.
Further, it was observed that in Sahney Steel and Press Work Ltd., the subsidy was
given by way of assistance in carrying the trade or business more profitably and hence,
the receipt was a revenue receipt. However, in the instant case, the object of the subsidy
was for expansion of their capacities, modernization and improvement of their marketing
capabilities. It was further observed that merely because the subsidy was equivalent to
90% of the sales tax paid, it cannot be construed that the same was in the form of refund
of sales tax paid.
Therefore, the High Court held that, in the present case, the subsidy received has to be
treated as a capital receipt and not as a revenue receipt.
6. What is the nature of incentive received under the scheme formulated by the
Central Government for recoupment of capital employed and repayment of loans
taken for setting up/expansion of a sugar factory Capital or Revenue?
CIT v. Kisan Sahkari Chini Mills Ltd. (2010) 328 ITR 27 (All.)
The assessee, engaged in the business of manufacture and sale of sugar, claimed that
the incentive received under the Scheme formulated by the Central Government for
recoupment of capital employed and repayment of loans taken from a financial institution
for setting up/ expansion of a new sugar factory is a capital receipt. The Assessing
Officer, however, treated it as a revenue receipt.
On this issue, the High Court followed the ruling of the Apex Court in CIT v. Ponni Sugars
and Chemicals Ltd. (2008) 306 ITR 392, wherein a similar scheme was under
consideration.
In that case, the Apex Court held that the main eligibility condition for the scheme was
that the incentive had to be utilized for the repayment of loans taken by the assessee to
set up a new unit or substantial expansion of an existing unit. The subsidy receipt by the
assessee was, therefore, not in the course of a trade and hence, was of capital nature.
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2
INCOME WHICH DO NOT FORMPART OF TOTAL
INCOME
1. Whether section 14A is applicable in respect of deductions, which are permissible
and allowed under Chapter VI-A?
CIT v. Kribhco (2012) 209 Taxman 252 (Delhi)
In the given case, the assessee is a co-operative society and is engaged in marketing of
fertilizers and purchase and processing of seeds. The assessee had claim deduction
under section 80P(2)(d) on dividend income received from NAFED and co-operative bank
and also on interest on deposits made with co-operative banks.
The Assessing Officer, relying upon section 14A, contended that the aforesaid income
were not included in the total income of the assessee and therefore, expenditure with
respect to such income should be disallowed.
The High Court observed that section 14A is not applicable for deductions, which are
permissible and allowed under Chapter VIA. Section 14A is applicable only if an income
is not included in the total income as per the provisions of Chapter III of the Income-tax
Act, 1961. Deductions under Chapter VIA are different from the exclusions/exemptions
provided under Chapter III.
The words do not form part of the total income under this Act used in section 14A are
significant and important. Income which qualifies for deductions under section 80C to
80U has to be first included in the total income of the assessee and then allowed as a
deduction. However, income referred to in Chapter III do not form part of the total income
and therefore, as per section 14A, no deduction shall be allowed in respect of
expenditure incurred by the assessee in relation to such income which does not form part
of the total income.
The Delhi High Court, therefore, held that no disallowance can be made under section
14A in respect of income included in total income in respect of which deduction is
allowable under section 80C to 80U.

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2. Can the assessee, being a charitable institution, claimdepreciation under section
32 in respect of an asset, where the cost of such asset has been treated as
application of income for charitable purposes under section 11(1)(a)?
Lissie Medical Institutions v. CIT (2012) 348 ITR 344 (Ker.)
On the above issue, it was held that once the expenditure on acquisition of assets has
been treated as application of income for charitable purposes under section 11(1)(a), the
full value of the asset stands written off and if depreciation is further allowed, the same
will result in double deduction of capital expenditure leading to violation of provision of
section 11(1) and therefore, the trust is not eligible to claim depreciation on such capital
expenditure, in the current year or in any subsequent year.
3. Can Explanation to section 11(2) be applied in respect of the accumulation up to
15% referred to in section 11(1)(a), to treat the donation made to another charitable
trust fromthe permissible accumulation upto 15%, as income of the trust?
DIT (Exemption) v. Bagri Foundation (2012) 344 ITR 193 (Delhi)
The assessee is a charitable trust registered under section 12AA and recognized under
section 80G. The assessee filed the return of income for the previous year declaring nil
income. On perusal of the application of income made during the year, it was found that
donation to the corpus of another trust was made which was much higher than the gross
total income declared in the return of income. The source of the excess donation was the
accumulation of income of the past made under section 11(1)(a) (i.e., out of permissible
accumulation upto 15%) and encashment made out of these accumulations/funds.
The Assessing Officer added the donation made out of the accumulations or the set apart
income, applying the Explanation to section 11(2) and accordingly, computed taxable
income of the assessee.
Considering the above mentioned issue, the Delhi High Court held that, as per the
provisions of section 11(1)(a), the accumulations upto 15% is permitted and no additional
conditions are attached with such accumulation. It is an absolute exemption.
However, as per section 11(2), accumulations in excess of 15% is also allowed but
subject to certain conditions mentioned therein and also subject to provisions of
Explanation to section 11(2), which mentions that the amount accumulated in excess of
15% under section 11(2) cannot be donated to another trust. Such an explanation is not
mentioned under section 11(1).
The Explanation to section 11(2), therefore, cannot be applied to the accumulations
under section 11(1)(a) i.e. accumulations upto 15%, unless it is expressly mention in the
Act for the same.
Consequently, if the donations by the assessee to another charitable trust were out of
past accumulations under section 11(1)(a) i.e. upto 15%, the same would not be liable to
be included in the total income as assessed by the Assessing Officer.
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3
INCOME FROMSALARIES
1. Can notional interest on security deposit given to the landlord in respect of residential
premises taken on rent by the employer and provided to the employee, be included in
the perquisite value of rent-free accommodation given to the employee?
CIT v. Shankar Krishnan (2012) 349 ITR 0685 (Bom.)
The assessee, a salaried employee, was provided with rent-free accommodation, being a
flat in Mumbai, by his employer company. The monthly rent paid by the employer in respect
of the said flat was ` 10,000 per month. The employer had given an interest-free
refundable security deposit of ` 30 lacs to the landlord for renting out the said premises.
The assessee-employee computed the perquisite value on the basis of rent of `10,000 paid
by his employer to the landlord, since the same was lower than 10% (now, 15%) of salary.
The Assessing Officer, however, contended that since the employer had given interest-
free deposit of ` 30,00,000 to the landlord, interest@12% on the said deposit is required
to be taken into consideration for estimating the fair rental value of the flat given to the
assessee and accordingly, he enhanced the perquisite value of the residential
accommodation provided to the employee by such notional interest. The Commissioner
(Appeals) upheld the decision of the Assessing Officer.
The Tribunal observed that, as per Rule 3 of the Income-tax Rules,1962, the perquisite
value of the residential accommodation provided by the employer shall be the actual
amount of lease rent paid or payable by the employer or 10% (now, 15%) of salary,
whichever is lower, as reduced by the rent, if any, actually paid by the employee. The
Tribunal, therefore, held that there is no concept of determination of the fair rental value
for the purpose of ascertaining the perquisite value of the rent-free accommodation
provided to the employees.
On appeal by the Revenue, the Bombay High Court held that the Assessing Officer is not
right in adding the notional interest on the security deposit given by the employer to the
landlord in valuing the perquisite of rent-free accomodation, since the perquisite value
has to be computed as per Rule 3 and Rule 3 does not require addition of such notional
interest. Thus, the perquisite value of the residential accommodation provided by the
employer would be the actual amount of lease rental paid or payable by the employer,
since the same was lower than 10% (now 15%) of salary.
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2. Is the limit of ` 1,000 per month per child to be mandatorily deducted, while
computing the perquisite value of the free or concessional education facility
provided to the employee by the employer?
CIT (TDS) v. Director, Delhi Public School (2011) 202 Taxman 318 (Punj. & Har.)
As per the provisions of Rule 3(5) of the Income-tax Rules, 1962, in case an educational
institution is maintained and owned by the employer and free or concessional education
facility is provided to the employees household in such institution, then, the cost of
education in a similar institution in or near the locality shall be taken to be the value of
perquisite in the hands of the employee. In case the cost of such education or the value
of benefit does not exceeds ` 1,000 per month per child, the perquisite value shall be
taken to be nil.
In the present case, the cost of education was more than ` 1,000 per month per child,
therefore, while determining the perquisite value on the above basis, the assessee
claimed a deduction of ` 1,000 per month per child.
The Punjab and Haryana High Court, in the above case, held that on a plain reading of
Rule 3(5), it flows that, in case the value of perquisite for free/concessional educational
facility arising to an employee exceeds ` 1,000 per month per child, the whole perquisite
shall be taxable in the hands of the employee and no standard deduction of ` 1,000 per
month per child can be provided from the same. It is only in case the perquisite value is
less than ` 1,000 per month per child, the perquisite value shall be nil. Therefore,
` 1,000 per month per child is not a standard deduction to be provided while calculating
such a perquisite.
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4
INCOME FROMHOUSE PROPERTY
1. Can service charges received along with rent in respect of a property, be brought
to tax under the head Income fromhouse property, if the service agreement is
dependent upon the rental agreement?
CIT v. J .K. Investors (Bom.) Ltd. (2012) 211 Taxman 383 (Bom.)
On this issue, the Assessing Officer claimed that since the service charges were in
respect of ancillary services, the same has to be assessed under the head Income from
other sources and not as Income from house property.
The Bombay High Court observed that the first step is to determine whether the service
agreement could stand independent of the rental agreement. In the present case, the
service agreement is dependent upon the rental agreement and in the absence of the
rental agreement there could be no service agreement. The services being provided
under the service agreement are in the nature of lift, common entrance, main road
leading to the building through the compound, drainage facilities, air conditioning facility,
open space in/around the building etc. which are not separately provided but go
alongwith the occupation of the property.
Therefore, the amount received as service charges have to be considered as a part of
the rent received and subjected to tax under the head Income from house property.
2. Can benefit of self-occupation of house property under section 23(2) be denied to a
HUF on the ground that it, being a fictional entity, cannot occupy a house
property?
CIT v. Hariprasad Bhojnagarwala (2012) 342 ITR 69 (Guj.) (Full Bench)
The assessee, being a Hindu Undivided Family (HUF), claimed the benefit of self
occupation of a house property under section 23(2). However, the Assessing Officer did
not accept the said claim and denied the benefit of self occupation of house property to
the HUF contending that such benefit is available only to the owner who can reside in his
own residence i.e., only an individual assessee, who is a natural person, and not to an
imaginary assessable entity being HUF or a firm, etc.
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On the above mentioned issue, the Gujarat High Court observed that a firm, which is a
fictional entity, cannot physically reside in a house property and therefore a firm cannot
claim the benefit of this provision, which is available to an individual owner who can
actually occupy the house. However, the HUF is a group of individuals related to each
other i.e., a family comprising of a group of natural persons. The said family can reside in
the house, which belongs to the HUF. Since a HUF cannot consist of artificial persons, it
cannot be said to be a fictional entity. Also, it was observed that since singular includes
plural, the word "owner" would include "owners" and the words "his own" used in section
23(2) would include "their own".
Therefore, the Court held that the HUF is entitled to claim benefit of self-occupation of
house property under section 23(2).
3. Can the rental income fromthe unsold flats of a builder be treated as its business
income merely because the assessee has, in its wealth tax return, claimed that the
unsold flats were stock-in-trade of its business?
Azimganj Estate (P.) Ltd. v. CIT (2012) 206 Taxman 308 (Cal.)
The assessee, a property developer and builder, in the course of its business activities
constructed a building for sale, in which some flats were unsold. During the year, the
assessee received rental income from letting out of unsold flats which is disclosed under
the head Income from house property and claimed the permissible statutory deduction
of 30% therefrom. The Assessing Officer contended that since the assessee had taken
the plea that the unsold flats were stock-in-trade of its business and not assets for the
purpose of Wealth-tax Act, 1961, therefore, the rental income from the said flats have to
be treated as business income of the assessee. Consequently, he rejected the
assessees claim for statutory deduction at 30% of Net Annual Value.
On this issue, the Calcutta High Court held that the rental income from the unsold flats of
a builder shall be taxable as Income from house property as provided under section 22
and since it specifically falls under this head, it cannot be taxed under the head Profit
and gains from business or profession. Therefore, the assessee would be entitled to
claim statutory deduction of 30% from such rental income as per section 24. The fact that
the said flats have been claimed as not chargeable to wealth-tax, treating the same as
stock-in-trade, will not affect the computation of income under the Income-tax Act, 1961.
4. Can an assessee engaged in letting out of rooms in a lodging house also treat the
income fromrenting of a building to bank on long termlease as business income?
J oseph George and Co. v. ITO (2010) 328 ITR 161 (Kerala)
On the above issue, it was decided that while lodging is a business, however, letting out
of building to the bank on long-term lease could not be treated as business. Therefore,
the rental income from bank has to be assessed as income from house property.
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5. Can notional interest on interest-free deposit received by an assessee in respect of
a shop let out on rent be brought to tax as Business income or Income from
house property?
CIT v. Asian Hotels Ltd. (2010) 323 ITR 490 (Del.)
The assessee had received interest-free deposit in respect of shops given on rent. The
Assessing Officer added to the assessee's income notional interest on the interest free
deposit at the rate of 18 per cent simple interest per annum on the ground that by
accepting the interest free deposit, a benefit had accrued to the assessee which was
chargeable to tax under section 28(iv).
The High Court held that section 28(iv) is concerned with business income and brings to
tax the value of any benefit or perquisite, whether convertible into money or not, arising
from business or the exercise of a profession. Section 28(iv) can be invoked only where
the benefit or amenity or perquisite is otherwise than by way of cash. In the instant case,
the Assessing Officer has determined the monetary value of the benefit stated to have
accrued to the assessee by adding a sum that constituted 18 per cent simple interest on
the deposit. Hence, section 28(iv) is not applicable.
Section 23(1) deals with the determination of the annual letting value of a let out property
for computing the income from house property. It provides that the annual letting value is
deemed to be the sum for which the property might reasonably be expected to be let out
from year to year. This contemplates the possible rent that the property might fetch and
certainly not the interest on fixed deposit that may be placed by the tenant with the
landlord in connection with the letting out of such property. Thus, the notional interest is
neither assessable as business income nor as income from house property.
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5
PROFITS AND GAINS OF BUSINESS OR
PROFESSION
1. Can depreciation on leased vehicles be denied to the lessor on the grounds that
the vehicles are registered in the name of the lessee and that the lessor is not the
actual user of the vehicles?
I.C.D.S. Ltd. v. CIT (2013) 350 ITR 527 (SC)
The assessee is a non-banking finance company engaged, inter alia, in the business of
leasing and hire purchase. The assessee purchased vehicles directly from the
manufacturers and as a part of its business, leased out these vehicles to its customers,
after which the physical possession of the vehicles was with the lessee. Further, the
lessees were registered as the owners of the vehicles in the certificate of registration
issued under the Motor Vehicles Act, 1988. The assessee-lessor claimed depreciation
on such vehicles.
The Assessing Officer disallowed the depreciation claim on the ground that the
assessees use of these vehicles was only by way of leasing out the vehicles to others
and not as actual user of the vehicles in the business of running them on hire and
secondly, the vehicles were registered in the name of the lessee and not the assessee-
lessor. Therefore, according to the Assessing Officer, the assessee had merely financed
the purchase of these assets and was neither the owner nor the user of these assets.
The High Court was also of the view that the assessee could not be treated as the owner
of the vehicles, since the vehicles were not registered in the name of the assessee and
the assessee had only financed the transaction. Therefore, the High Court held that the
assessee was not entitled to claim depreciation.
The Supreme Court observed that section 32 imposes a twin requirement of ownership
and usage for business as conditions for claim of depreciation thereunder. The Apex
Court further observed that as far as usage of the asset is concerned, the section requires
that the asset must be used in the course of business. It does not mandate actual usage
by the assessee itself. In this case, the assessee did use the vehicles in the course of its
leasing business. Hence, this requirement of section 32 has been fulfilled, notwithstanding
the fact that the assessee was not the actual user of the vehicles.
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The Supreme Court further noted that section 2(30) of the Motor Vehicle Act, 1988, is a
deeming provision which creates a legal fiction of ownership in favour of the lessee only
for that Act, not for the purpose of law in general. No inference could be drawn from the
registration certificate as to ownership of the legal title of the vehicles, since registration
in the name of the lessee during the period of lease is mandatory as per the Motor
Vehicles Act, 1988. If the lessee was in fact the legal owner, he would have claimed
depreciation on the vehicles which was not the case.
The Apex Court observed that as long as the assessee-lessor has a right to retain the
legal title against the rest of the world, he would be the owner of the asset in the eyes of
law. In this regard, the following provisions of the lease agreement are noteworthy
The assessee is the exclusive owner of the vehicle at all points of time;
The assessee is empowered to repossess the vehicle, in case the lessee committed
a default;
At the end of the lease period, the lessee was obliged to return the vehicle to the
assessee;
The assessee had a right of inspection of the vehicle at all times.
It can be seen that the proof of ownership lies in the lease agreement itself, which clearly
points in favour of the assessee.
The Supreme Court, therefore, held that assessee was entitled to claim depreciation in
respect of vehicles leased out since it has satisfied both the requirements of section 32,
namely, ownership of the vehicles and its usage in the course of business.
2. Can waiver of loan given to the assessee by the Government of India fromSteel
Development Fund (SDF) to meet the capital cost of asset be reduced to arrive at
the actual cost as per section 43(1) for computing depreciation under section 32?
Steel Authority of India Ltd. v. CIT (2012) 348 ITR 150 (Delhi)
The assessee is a public sector undertaking engaged in the manufacture and sale,
including export of iron and steel of various grades. It has several steel plants in India.
The Government of India sanctioned huge loans to the assessee from the SDF to meet its
requirements. On account of glut in the international steel market due to heavy production
of steel in South East Asia and the meltdown in the USA, the price of steel fell rapidly and
the assessee started incurring heavy losses. The assessee, therefore, approached the
Government of India for waiver of loans granted from SDF. The Government of India, as a
measure of providing relief to the steel industry in general and the assessee in particular,
waived repayment of loans granted to the assessee from the SDF.
The assessee reduced the cost of the assets by the amount of the loans waived by the
Government of India in its books of account and accordingly calculated depreciation.
However, in the returns filed for the years under consideration, the assessee took a
contrary stand and claimed depreciation on the assets without reducing the loans waived
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by the Government. The assessee took a plea that Explanation 10 to section 43(1) does
not consider the waiver of a loan as a subsidy or a grant or reimbursement of the cost.
The Assessing Officer, however, contended that depreciation ought to be allowed to the
assessee in respect of assets purchased on the reduced cost, after reducing the loans
waived by the Government, as per the provisions of section 43(1). The Commissioner
(Appeals) and Tribunal upheld the view of the Assessing Officer.
The Delhi High Court observed that the case of the assessee may not fall under
Explanation 10 to section 43(1), since the Explanation covers only a case of subsidy,
grant or reimbursement but not a case of waiver of loan. However, having regard to the
facts of the case, the waiver of the loan would amount to the meeting of a portion of the
cost of the assets under the main provision of section 43(1) which spells out the meaning
of actual cost. As per section 43(1), actual cost means the actual cost of the assets to
the assessee, reduced by that portion of the cost thereof, if any, as has been met directly
or indirectly by any other person or authority. The intention of the parties, as reflected in
the accounts of the assessee, appears to be that the loans have been granted towards a
portion of the cost of the assets.
The waiver of the loan, in this case, is not a mere quantification of a subsidy granted
generally for industrial growth. It was granted specifically to the assessee, who had
reduced the amount waived from the cost of the assets in its books of account. This
accounting treatment reflects the analogous understanding by the assessee regarding
the purpose of the grant of loan. The High Court, therefore, held that, by applying the
main provision of section 43(1), the amount of loan waived by the Government is to be
reduced from the cost of assets to arrive at the actual cost for computing depreciation.
3. Can the second proviso to section 32(1) be applied to restrict the additional
depreciation under section 32(1)(iia) to 50%, if the newplant and machinery was
put to use for less than 180 days during the previous year?
M.M. Forgings Ltd. v. ACIT (2012) 349 ITR 0673 (Mad.)
In this case, the Assessing Officer, by applying the second proviso to section 32(1),
restricted the allowability of depreciation to 50% of the amount of additional depreciation
computed under section 32(1)(iia), since the new plant and machinery was put to use for
less than 180 days during the previous year. The assessee argued that he has satisfied
all the conditions stipulated under section 32(1)(iia), and therefore, the depreciation
under section 32(1)(iia) should not be restricted to 50% by resorting to the second
proviso to section 32(1).
The Commissioner (Appeals) and Appellate Tribunal, however, affirmed the action of the
Assessing Officer.
On appeal, the Madras High Court observed that clause (iia) was inserted by the Finance
Act, 2002, with effect from April 1, 2003, in the second proviso to section 32(1).
Therefore, it was imperative that on and after April 1, 2003, the claim of the assessee
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made under section 32(1)(iia) had to be necessarily allowable by applying the second
proviso to section 32(1).
As per the second proviso to section 32(1), which specifically mentions that where an
asset referred to in, inter alia, clause (iia) of section 32(1) is acquired by the assessee
during the previous year and is put to use for the purpose of business or profession for a
period of less than 180 days in that previous year, the deduction in respect of such asset
shall be restricted to 50% of the amount calculated at the prescribed percentage under
section 32(1)(iia).
The Madras High Court held that if an asset is acquired on or after 1.04.2003, it was
mandatory that the claim of the assessee made under section 32(1)(iia) had to be
necessarily assessed by applying the second proviso to section 32(1). Since there is a
statutory stipulation restricting the allowability of depreciation to 50% of the amount
computed under section 32(1)(iia), where the asset is put to use for less than 180 days,
the amount of depreciation allowable has to be restricted to 50% of the amount computed
under section 32(1)(iia). The High Court, accordingly, affirmed the order of the Tribunal.
4. Can business contracts, business information, etc., acquired by the assessee as
part of the slump sale and described as 'goodwill', be classified as an intangible
asset to be entitled for depreciation under section 32(1)(ii)?
Areva T and D India Ltd. v. DCIT (2012) 345 ITR 421 (Delhi)
In the present case, a transferor under a transfer by way of slump sale, transferred its
ongoing business unit to the assessee company. On perusal of the sale consideration, it
was found that some part of it was attributable to the tangible assets and the balance
payment was made by the assessee company for acquisition of various business and
commercial rights categorized under the separate head, namely, "goodwill" in the books
of account of the assessee. These business and commercial rights comprised the
following: business claims, business information, business records, contracts, skilled
employees, know-how. The assessee company claimed depreciation under section 32 on
the excess amount paid which was classified as goodwill under the category of
intangible assets.
The Assessing Officer accepted the allocation of the slump sale between tangible and
intangible assets (described as Goodwill). However, he claimed that depreciation in
terms of section 32(1)(ii) is not allowable on goodwill. He further contended that the
assessee has failed to prove that such payment can be categorized under other
business or commercial right of similar nature as mentioned in section 32(1)(ii) to qualify
for depreciation.
The assessee argued that any right which is obtained for carrying on the business
effectively, is likely to come within the sweep of the meaning of intangible asset.
Therefore, the present case shall qualify for claiming depreciation since business claims,
business information, etc, are in the nature of any other business or commercial rights.
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However, the Revenue argued that, the business or commercial rights acquired by the
assessee would not fall within the definition of intangible assets under section 32.
The Delhi High Court observed that the principle of ejusdemgeneris provides that where
there are general words following particular and specific words, the meaning of the latter
words shall be confined to things of the same kind. The Court applied this principle for
interpreting the expression "business or commercial rights of similar nature" specified in
section 32(1)(ii). It is seen that such rights need not be the same as the description of
"know-how, patents, trademarks, licenses or franchises" but must be of similar nature as
that of specified assets. The use of these general words after the specified intangible
assets in section 32(1)(ii) clearly demonstrates that the Legislature did not intend to
provide for depreciation only in respect of specified intangible assets but also to other
categories of intangible assets, which were neither feasible nor possible to exhaustively
enumerate.
Further, it was observed that the above mentioned intangible assets are invaluable
assets, which are required for carrying on the business acquired by the assessee without
any interruption. In the absence of the aforesaid intangible assets, the assessee would
have had to commence business from scratch and go through the gestation period
whereas by acquiring the aforesaid business rights along with the tangible assets, the
assessee has got a running business. The aforesaid intangible assets are, therefore,
comparable to a license to carry on the existing business of the transferor.
The High Court, therefore, held that the specified intangible assets acquired under the
slump sale agreement by the assessee are in the nature of intangible asset under the
category "other business or commercial rights of similar nature" specified in section
32(1)(ii) and are accordingly eligible for depreciation under section 32(1)(ii).
5. Is the assessee entitled to depreciation on the value of goodwill considering it as
an asset within the meaning of Explanation 3(b) to Section 32(1)?
CIT v. Smifs Securities Ltd. (2012) 348 ITR 302 (SC)
In this case, the assessee has paid an excess consideration over the value of net assets of
the amalgamating company acquired by it, which is treated as goodwill, since the extra
consideration was paid towards the reputation which the amalgamating company was
enjoying in order to retain its existing clientele. The assessee had claimed depreciation on
the said goodwill. However, the Assessing Officer contended that the goodwill is not an
asset falling under Explanation 3 to section 32(1) and therefore, is not eligible for
depreciation.
On this issue, the Supreme Court observed that Explanation 3 to section 32(1) states that
the expression 'asset' shall mean an intangible asset, being know-how, patents,
copyrights, trademarks, licences, franchises or any other business or commercial rights
of similar nature.
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A reading of the words 'any other business or commercial rights of similar nature' in
Explanation 3(b) indicates that goodwill would fall under the said expression. In the
process of amalgamation, the amalgamated company had acquired a capital right in the
form of goodwill because of which the market worth of the amalgamated company stood
increased.
Therefore, it was held that 'Goodwill' is an asset under Explanation 3(b) to section 32(1)
and depreciation thereon is allowable under the said section.
6. Is the assessee entitled to depreciation on value of goodwill considering it as
other business or commercial rights of similar nature within the meaning of an
intangible asset?

B. Raveendran Pillai v. CIT (2011) 332 ITR 531 (Kerala)
Under section 32(1)(ii), depreciation is allowable on intangible assets, being know-how,
patents, copyrights, trade marks, license, franchise, or any other business or commercial
rights of similar nature.
In this case, a hospital was run in the same building, in the same town, in the same name
for several years prior to purchase by the assessee. By transferring the right to use the
name of the hospital itself, the previous owner had transferred the goodwill to the
assessee and the benefit derived by the assessee was retention of continued trust of the
patients, who were patients of the previous owners.
When goodwill paid was for ensuring retention and continued business in the hospital, it
was for acquiring a business and commercial right and it was comparable with trade mark,
franchise, copyright etc., referred to in the first part of clause (ii) of section 32(1) and so,
goodwill was covered by the above provision of the Act entitling the assessee for
depreciation.
7.
Would the phrase "used for purpose of business" in respect of discarded machine
include use of such asset in the earlier years for claimof depreciation under
section 32?
CIT v. Yamaha Motor India Pvt. Ltd. (2010) 328 ITR 297 (Delhi)
The issue under consideration in this case is whether depreciation is allowable on the written
down value of the entire block, even though the block includes some machinery which has
already been discarded and hence, cannot be put to use during the relevant previous year.
On the above issue, it was observed that the expression "used for the purposes of the
business" in section 32 when used with respect to discarded machinery would mean the
use in the business, not in the relevant financial year/previous year, but in the earlier
financial years.
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The discarded machinery may not be actually used in the relevant previous year but
depreciation can be claimed as long as it was used for the purposes of business in the
earlier years provided the block continues to exist in the relevant previous year.
Therefore, the condition for claiming depreciation in respect of the discarded machine
would be satisfied if it is used in the earlier previous years for the business.
8. Would beneficial ownership of assets suffice for claimof depreciation on such assets?
CIT v. Smt. A. Sivakami and Another (2010) 322 ITR 64
The assessee, running a proprietary concern, claimed depreciation on three buses, even
though she was not the registered owner of the same. However, in order to establish that
she was the beneficial owner, she furnished documents relating to loans obtained for the
purchase of buses, repayment of such loans out of collections from the buses, road tax
and insurance paid by her. She had also obtained an undertaking from the persons who
hold the legal title to the vehicles as well as the permits, for plying buses in the name of
her proprietary concern. Further, in the income and expenditure account of the
proprietary concern, the entire collections and expenditure (by way of diesel, drivers
salary, spares, R.T.O. tax etc.) from the buses was shown. The buses in dispute were
also shown as assets in the balance sheet of the proprietary concern.
The assessee claimed depreciation on these buses. The Assessing Officer rejected the
claim of the assessee on the ground that the assessee was not the owner of the three
buses and the basic condition under section 32(1) to claim depreciation is that the
assessee should be the owner of the asset. The Assessing Officer was of the view that
mere admission of the income cannot per se permit the assessee to claim depreciation.
The High Court observed that in the context of the Income-tax Act, 1961, having regard
to the ground realities and further having regard to the object of the Act i.e., to tax the
income, the owner is a person who is entitled to receive income from the property in his
own right. The Supreme Court, in CIT v. Podar Cement P Ltd. (1997) 226 ITR 625,
observed that the owner need not necessarily be the lawful owner entitled to pass on the
title of the property to another. Since, in this case, the assessee has made available all
the documents relating to the business and also established before the authorities that
she is the beneficial owner, she is entitled to claim depreciation even though she is not
the legal owner of the buses.
9. Can EPABX and mobile phones be treated as computers to be entitled to higher
depreciation at 60%?
Federal Bank Ltd. v. ACIT (2011) 332 ITR 319 (Kerala)
On this issue, the High Court held that the rate of depreciation of 60% is available to
computers and there is no ground to treat the communication equipment as computers.
Hence, EPABX and mobile phones are not computers and therefore, are not entitled to
higher depreciation at 60%.
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10. Is abkari licence covered under section 32(1)(ii) and eligible for depreciation
@ 25% of written down value?
S. Ambika v. DCIT (2011) 203 Taxman 2 (Ker.)
On this issue, the High Court observed that abkari licence is treated as a transferable
asset and the Excise Commissioner is authorised to approve transfers as per Foreign
Liquor Rules. When licence is transferable according to the Rules under which it is
issued, it is for consideration and the licence would be renewed every year unless a
general policy decision is taken by the Government against it, and therefore, it is a
business asset for long-term exploitation. Therefore, abkari licence is a business right
given to the party to carry on liquor trade.
As per section 32(1)(ii), the assessee is entitled to claim depreciation on know-how,
patents, copyright, trademarks, licenses, franchises or any other business or commercial
rights of similar nature as being being intangible assets.
The High Court held that the abkari licence squarely falls under section 32(1)(ii) on which
the assessee is entitled to depreciation at 25% of the written down value as provided
under section 32(1).
11. What is the nature of expenditure incurred on demolition and re-erection of a cell
roomand expenditure incurred on purchase of pumping set, mono block pump and
two transformers, which were parts of a bigger plant revenue or capital?
CIT v. Modi Industries Ltd. (2011) 339 ITR 467 (Del.)
On the issue of allowability of expenditure on demolition and re-erection of a cell room,
the High Court referred to the Supreme Court ruling in CIT v. Saravana Spinning Mills P.
Ltd. (2007) 293 ITR 201, wherein it was observed that current repairs under section 31
refer to expenditure effected to preserve and maintain an already existing asset and the
object of expenditure must not be to bring a new asset into existence or to obtain a new
advantage. In that case, it was held that since the entire machine had been replaced, the
expenditure incurred by the assessee did not fall within the meaning of current repairs
in section 31(1).
Applying the rationale of the Apex Court ruling, the Delhi High Court observed that if a
part of a structure becomes dilapidated and repairs/reinforcement of some parts of the
structure is required, it would be treated as "current repairs". However, on the other
hand, if a part of the building is demolished and a new structure is erected on that place,
it has to be treated as capital expenditure, as in that case a totally new asset is created
even if it may be a part of the building.

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In this case, it was clear that after completely demolishing the old cell room, an entire
new cell room was erected. The money spent was not merely on repairs of the cell room,
but for constructing a new cell room. Even the nomenclature of the entry, as given by the
assessee, was "fabrication and erection charges of cell room". Thus, it was nothing but a
complete demolition of the old cell room and construction/erection of a new cell room in
its place. The expenditure incurred on the cell room was capital expenditure.
However, so far as purchase of pumping set, mono block pump with HP motors and two
transformers were concerned, they were not stand alone equipment, but were part of the
bigger plant. Therefore, it would be treated as replacement of those parts and the
expenditure would be eligible for deduction under section 37(1).
Note : The Explanation to section 31 inserted by the Finance Act, 2003 w.e.f. 01.04.2004
clarifies that the amount paid on account of current repairs shall not include any expenditure
in the nature of capital expenditure. Therefore, as per this clarification also, expenditure on
demolition and re-erection of a cell roomcannot be treated as current repairs.
12. Can a company engaged in the business of owning, running and managing hotels
claiminterest on borrowed funds, used by it for investing in the equity share
capital of a wholly owned subsidiary company, as deduction where the subsidiary
company was formed for exercising effective control of newhotels acquired by the
parent company under its management?
CIT v. Tulip Star Hotels Ltd. (2011) 338 ITR 482 (Del.)
The assessee-company was engaged in the business of owning, running and managing
hotels. The assessee had borrowed certain funds which it had utilized to subscribe to the
equity capital of the subsidiary company. The investment in the wholly owned subsidiary
was for effective control of the hotels acquired by the assessee-company under its
management and the subsidiary company also used the funds for the said purpose.
The assessee paid interest on the borrowed money. This interest liability incurred by the
assessee was claimed by it as deduction under section 36(1)(iii) on the ground that it
was business expenditure. The Assessing Officer refused to allow the expenditure.
However, the Commissioner (Appeals) reversed the decision of the Assessing Officer
and this opinion was confirmed by the Tribunal.
The High Court held that the assessee was in the business of owning, running and
managing hotels. For the effective control of new hotels acquired by the assessee under
its management, it had invested in a wholly owned subsidiary company. The expenditure
incurred was for business purposes and was thus allowable under section 36(1)(iii).
Note Under section 36(1)(iii), the amount of the interest paid in respect of capital
borrowed for the purposes of the business or profession is allowable as deduction. In this
case, it has been held that interest paid on capital borrowed for investment in a
subsidiary company is allowable as deduction since the subsidiary company was formed
to carry on the business of the parent company in a more effective manner.
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13. For claiming deduction of bad debts, is it necessary for the assessee to establish
that the debt had, in fact, become irrecoverable?
T.R.F. Ltd. v. CIT (2010) 323 ITR 397 (SC)
On this issue, the Apex Court held that in order to obtain deduction in relation to bad
debts under section 36(1)(vii), it is not necessary for the assessee to establish that the
debt, in fact, has become irrecoverable. It is enough if the bad debts is written off as
irrecoverable in the accounts of the assessee for the relevant previous year.
Note Prior to 1
st
April, 1989, the condition to be satisfied for claimof deduction under
section 36(1)(vii) was that the debt should have been established to have become a bad
debt in the relevant previous year. However, w.e.f. 1
st
April, 1989, the condition for claim
of deduction under section 36(1)(vii) is that the bad debts should be written off as
irrecoverable in the accounts of the assessee for the previous year. Therefore, there is
presently no requirement to prove that the debt has actually become irrecoverable.
14. What would be the nature of corporate membership fee paid to the golf club,
considering that the membership was for a limited period of six years Revenue or
Capital expenditure?
CIT v. Groz Beckert Asia Ltd. (2013) 351 ITR 196 (P&H)(FB)
On this issue, the High Court observed that the aim and object of the expenditure would
determine the character of the expenditure i.e., whether it is a capital expenditure or a
revenue expenditure. The High Court further noted the rulings of the various courts,
wherein it was observed that for an expenditure to be treated as capital in nature, it
should bring into existence an asset or an advantage for the enduring benefit of a trade.
In this case, the Court observed that the corporate membership of ` 6 lakh was obtained
for running the business to earn profit and the membership was for a limited period of six
years. It is, therefore, an expenditure incurred for the period of membership and is not
long-lasting. The Court further observed that though payment of membership fee results
in obtaining of club membership for a period beyond the year of payment but the benefit
remains in the revenue field and not in the capital field. By such membership, a privilege
to use facilities of a club alone are conferred on the assessee and that too for a limited
period. Such expenses are incurred for running the business with a view to provide
benefits to the assessee. Also, such membership does not bring into existence an asset
or an advantage for the enduring benefit of the business.
The High Court, therefore, held that by subscribing to the membership of a club for a
limited period, no capital asset is created or comes into existence and consequently, the
corporate membership fees cannot be treated as capital in nature.
15. What would be the nature of expenditure incurred by the assessee by way of
severance cost paid to the employees in respect of suspension of one of the
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activities, in a case where he continues to carry on other business activities
Capital or Revenue?
CIT v. KJ S India P. Ltd. (2012) 340 ITR 380 (Delhi)
In the present case, the assessee was carrying more than one business activity, namely
manufacturing powdered soft drink and trading in soft drinks. However, the manufacturing
activity was not profitable and was hence, stopped. The employees who were directly
connected with this manufacturing activity were laid off and severance cost was paid to
those employees. The same was claimed by the assessee as revenue expenditure. The
Assessing Officer disallowed the same treating it as a capital expenditure, on the argument
that it was incurred as a result of closure of business of the assessee.
The Delhi High Court, on the above mentioned issue, held that though one of the
business activities was suspended, it cannot be construed that the assessee has closed
down its entire business. The assessee still continues to trade in soft drinks. Therefore,
the said expenditure will be allowed as revenue expenditure even though it was related to
a manufacturing activity which was suspended.
16. Is the expenditure incurred on payment of retrenchment compensation and interest
on money borrowed for payment of retrenchment compensation on closure of one
of the textile manufacturing units of the assessee-company, revenue in nature?
CIT v. DCM Ltd. (2010) 320 ITR 307 (Delhi)
The assessee-company had four textile units, out of which one unit had to be closed
down as it was located in a non-conforming area, while the other three units continued to
carry on business. The company claimed deduction of retrenchment compensation paid
to employees of the unit which had been closed down and interest on money borrowed
for payment of retrenchment compensation. The Revenue contended that the textile unit
was a separate business maintaining separate books of account and engaging separate
workers, and hence, with the closure of the unit, the assessee should not be allowed
deduction of the aforementioned expenses.
The issue under consideration was whether closure of one textile mill unit would amount
to closure of the business as contended by the Revenue. The Tribunal observed that
there was no closure of business since the textile mill unit was only a part of the textile
manufacturing operations, which continued even after closure of the textile mill unit, as
the assessee-company continued in the business of manufacturing of textiles in the
remaining three units. The assessee prepared a consolidated profit and loss account and
balance sheet of all its manufacturing units taken together; the control and management
of the assessee was centralized in the head office and also all important policy decisions
were taken at the head office. Also, the head office provided funds required for various
units and there were common marketing facilities for all the textile units.
The Tribunal applied the tests laid down by the Apex Court in CIT v. Prithvi Insurance
Co. (1967) 63 ITR 632 and arrived at the conclusion that there was interconnection,
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interlacing and unity of control and management, common decision making mechanism
and use of common funds in respect of all the four units.
The High Court concurred with these findings of the Tribunal and accordingly, held that
deduction was allowable in respect of expenditure on payment of retrenchment compensation
and interest on money borrowed for payment of retrenchment compensation.
Note In this case, the payment of compensation to workers on closure of a textile mill
unit is treated as a revenue expenditure since after closure of the unit, the remaining
business continued and there was inter-connection in the functioning of the different
units. Therefore, it follows that if compensation is paid to workers on closure of the entire
business, the same would be a capital expenditure.
17. Can the expense incurred by the assessee on the education and travelling of an
employee, for acquiring knowledge relating to assessees business, be disallowed
merely on the ground that the employee is the son of an ex-director of the
assessee company?
CIT v. Naidunia News and Networking (P.) Ltd. (2012) 210 Taxman 73 (MP)
In the present case, the assessee was engaged in the business of printing and
distribution of newspapers and magazines. It incurred foreign travel and education
expenditure on higher studies in printing technology for its employee, who was the son of
the ex-director of the company. However, the said expense was disallowed by the
Assessing Officer.
The Madhya Pradesh High Court held that the expenses incurred by the assessee on the
foreign travel and education of a regular employee outside India for gaining advanced
knowledge of the latest printing technology, which was directly related to the business of
the assessee, is allowable under section 37(1). The expenditure cannot be disallowed
merely because it was incurred in respect of an employee, who was the son of an ex-
director of the assessee company.
18. Can expenditure incurred by a company on higher studies of the directors son
abroad be claimed as business expenditure under section 37 on the contention
that he was appointed as a trainee in the company under apprentice training
scheme, where there was no proof of existence of such scheme?
Echjay Forgings Ltd. v. ACIT (2010) 328 ITR 286 (Bom.)
On this issue, it was observed that there was no evidence on record to show that any
other person at any point of time was appointed as trainee or sent abroad for higher
education. Further, the appointment letter to the directors son, neither had any reference
number nor was it backed by any previous application by him. The appointment letter
referred to apprentice training scheme with the company in respect of which no details
were produced. There was no evidence that he was recruited as trainee by some open
competitive exam or regular selection process. Hence, there was no nexus between the
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education expenditure incurred abroad for the directors son and the business of the
assessee company. Therefore, the aforesaid expenditure was not deductible.
19. Is the commission paid to doctors by a diagnostic centre for referring patients for
diagnosis be allowed as a business expenditure under section 37 or would it be
treated as illegal and against public policy to attract disallowance?
CIT v. Kap Scan and Diagnostic Centre P. Ltd. (2012) 344 ITR 476 (P&H)
On the above mentioned issue, the Punjab and Haryana High Court held that the
argument of the assessee that giving commission to the private doctors for referring the
patients for various medical tests was a trade practice which could not be termed to be
illegal and therefore, the same cannot be disallowed under section 37(1), is not
acceptable. Applying the rationale and considering the purpose of Explanation to section
37(1), the assessee would not be entitled to deduction of payments made in
contravention of law. Similarly, payments which are opposed to public policy being in the
nature of unlawful consideration cannot also be claimed as deduction. The assessee
cannot take a plea that businessmen are entitled to conduct their business even contrary
to law and claim deduction of certain payments as business expenditure, notwithstanding
that such payments are illegal or opposed to public policy or have pernicious
consequences to the society as a whole.
As per the Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002, no physician shall give, solicit, receive, or offer to give, solicit or
receive, any gift, gratuity, commission or bonus in consideration of a return for referring
any patient for medical treatment.
The demanding as well as paying of such commission is bad in law. It is not a fair
practice and is opposed to public policy and should be discouraged. Thus, the High Court
held that commission paid to doctors for referring patients for diagnosis is not allowable
as a business expenditure.
20. What would be the nature of the repair and reconditioning expenditure incurred on
a machine which broke down years ago Revenue or Capital?
Bharat Gears Ltd. v. CIT (2011) 337 ITR 368 (Delhi)
In the present case, the assessee had machinery which broke down many years back
and was not in use. In the current year, the assessee got that machinery repaired and
reconditioned and claimed the expenditure as current repairs i.e., revenue expenditure.
The assessee contended that this was neither a case of replacement of asset nor
acquisition of a new asset. The defects in the machinery were only being removed and
therefore, the expenditure should be treated as current repairs. The Assessing Officer
disallowed the claim since the expenditure incurred has given a benefit of enduring
nature to the assessee by increasing the useful life of the machinery and therefore, has
to be treated as a capital expenditure on which depreciation is allowable.
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The Delhi High Court, after considering the above mentioned arguments, held that the
machinery which was repaired had outlived its utility and huge expenditure was incurred
in replacing many vital parts in order to make the same functional. The expenditure was
of such nature that it brought into existence a new machinery altogether and
consequently, there was a benefit of enduring nature to the assessee even though
technically no new asset came into existence. Therefore, the Delhi High Court observed
that it is in the nature of capital expenditure on which depreciation can be claimed.
21. Would the expenditure incurred for issue and collection of convertible debentures
be treated as revenue expenditure or capital expenditure?
CIT v. ITC Hotels Ltd. (2011) 334 ITR 109 (Kar.)
On this issue, the Karnataka High Court held that the expenditure incurred on the issue
and collection of debentures shall be treated as revenue expenditure even in case of
convertible debentures, i.e. the debentures which had to be converted into shares at a
later date.
Note - It may, however, be noted that the Ahmedabad High Court, in Banco Products
(India) Ltd. v. CIT (1999) 63 Taxman 370, held that since the convertible debentures
have characteristics of equity shares, such debentures cannot be termed as debt.
Therefore, proportionate issue expenses of such debentures that relates to the equity
base of the company has to be treated as capital expenditure.
22. Can the expenditure incurred on the assessee-lawyers heart surgery be allowed as
business expenditure under section 31 by treating it as current repairs considering
heart as plant and machinery or under section 37 by treating it as expenditure
incurred wholly and exclusively for the purpose of business or profession?
Shanti Bhushan v. CIT (2011) 336 ITR 26 (Delhi)
In the present case, the assessee is a lawyer by profession. The assessee argued that
the repair of vital organ (i.e. the heart) had directly impacted his professional
competence. He contended that the heart should be treated as plant as it is used for the
purpose of his professional work. He substantiated his contention by stating that after his
heart surgery, his gross receipts from profession increased manifold. Hence, the
expenditure on the heart surgery should be allowed as business expenditure either under
section 31 as current repairs to plant and machinery or section 37 as an expense
incurred wholly and exclusively for the purpose of profession. The department argued
that the said expenditure was personal in nature and was not incurred wholly and
exclusively for the purpose of business or profession, and therefore, the same should not
be allowed as business expenditure.
On this issue, the Delhi High Court observed that a healthy and functional human heart is
necessary for a human being irrespective of the vocation or profession he is attached
with. Expenses incurred to repair an impaired heart would thus add to the longevity and
efficiency of a human being which would be reflected in every activity he does, including
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professional activity. It cannot be said that the heart is used as an exclusive tool for the
purpose of professional activity by the assessee. Further, the High Court held that:-
(i) To allow the heart surgery expenditure as repair expenses to plant, the heart should
have been first included in the assessees balance sheet as an asset in the previous
year and in the earlier years. Also, a value needs to be assigned for the same. The
assessee would face difficulty in arriving at the cost of acquisition of such an asset
for showing in his books of account.
Though the definition of plant as per the provisions of section 43(3) is inclusive in
nature, such plant must have been used as a business tool which is not true in case
of heart. Therefore, the heart cannot be said to be plant for the business or
profession of the assessee. Therefore, the expenditure on heart surgery is not
allowable as repairs to plant under section 31.
(ii) According to the provisions of section 37, inter alia, the said expenditure must be
incurred wholly and exclusively for the purposes of the assessee's profession. As
mentioned above, a healthy heart will increase the efficiency of human being in
every field including its professional work.
There is, therefore, no direct nexus between the expenses incurred by the
assessee on the heart surgery and his efficiency in the professional field. Therefore,
the claim for allowing the said expenditure under section 37 is also not tenable.
Hence, the heart surgery expenses shall not be allowed as a business expenditure of the
assessee under the Income-tax Act, 1961.
23. Would expenditure incurred on feasibility study conducted for examining
proposals for technological advancement relating to the existing business be
classified as a revenue expenditure, where the project was abandoned without
creating a newasset?
CIT v. Priya Village Roadshows Ltd. (2011) 332 ITR 594 (Delhi)
In this case, the assessee, engaged in the business of running cinemas, incurred
expenditure towards architect fee for examining the technical viability of the proposal for
takeover of cinema theatre for conversion into a multiplex/ four-screen cinema
complexes. The project was, however, dropped due to lack of financial and technical
viability. The issue under consideration is whether such expenses can be treated as
revenue in nature, since no new asset has been created.
On this issue, the High Court observed that, in such cases, whether or not a new
business/asset comes into existence would become a relevant factor. If there is no
creation of a new asset, then the expenditure incurred would be of revenue nature. In this
case, since the feasibility studies were conducted by the assessee for the existing
business with a common administration and common fund and the studies were
abandoned without creating a new asset, the expenses were of revenue nature.
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24. Can the expenditure incurred for purchase of second hand medical equipment for
use as spare parts for existing equipment be claimed as revenue expenditure?
Dr. Aswath N. Rao v. ACIT (2010) 326 ITR 188 (Karn)
The assessee, a cardiologist, following cash system of accounting claimed deduction of
expenditure incurred for purchase of second hand medical equipment from USA on 31
st

March of the relevant previous year. However, the said equipment reached India only in
August (i.e., the next previous year). The second-hand machinery was purchased for the
purpose of dismantling the same and using its parts as spare parts to the existing machinery.
The assessee contended that as the existing machines were old, they went out of order
quite often, and spare parts were not readily available in India. Therefore, as and when
he visited USA on professional work, he purchased second hand machinery which he
brought to India and used the spare parts after dismantling the machinery. Therefore, he
claimed deduction of expenditure incurred for purchase of such machinery.
The Department rejected the claim of the assessee on the ground that such expenditure
was a capital expenditure. Further, since the machines had reached India only in the next
year, any claim for deduction could be considered only in the next year.
On these issues, the High Court held that since the second hand machinery purchased
by the assessee is for use as spare parts for the existing old machinery, the same had to
be allowed as revenue expenditure. Since the entire sale consideration was paid on 31
st

March of the relevant previous year and the machinery was also dispatched by the
vendor from USA, the sale transaction was complete on that date. The title to the goods
had passed on to him on that date and he became the owner of the machinery even
though the goods reached India only in August next year. Therefore, the assessee was
eligible to claim deduction of expenditure in the relevant previous year ended 31
st
March.
Note In this case, since the machinery was purchased with the intention of using its
parts as spare parts for existing machinery, the same has been allowed as revenue
expenditure and the date of its purchase is material for determining the year in which the
expenditure is allowable as deduction. However, if the intention was to use such
machinery on a standalone basis, then the expenditure would be treated as a capital
expenditure and the date on which it is put to use would determine its eligibility for
depreciation in that year as also the quantumof depreciation (100% or 50%, depending
on whether it is put to use for more than 180 days or less in that year).
25. Can the amount incurred by the assessee for replacing the old mono sound system
in its cinema theatre with a newDolby stereo systembe treated as revenue
expenditure?
CIT v. Sagar Talkies (2010) 325 ITR 133 (Karn.)
On this issue, the High Court observed held that the assessee had provided certain
amenities to its customers by replacing the old system with a better sound system and by
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introducing such system, the assessee had not increased its income in any way. The
assessee installed dolby stereo system instead of repairing the existing old stereo
system. This had not benefited the assessee in any way with regard to the total income
since there was no change in the seating capacity of the theatre or increase in the tariff
rate of the ticket. In such a case, the expenditure on such change of sound system could
not be considered capital in nature.
26. Can payment to police personnel and gundas to keep away fromthe cinema
theatres run by the assessee be allowed as deduction?
CIT v. Neelavathi & Others (2010) 322 ITR 643 (Karn)
The assessee running cinema theatres claimed deduction of the sum paid to the local
police and local gundas towards maintenance of the theatre. The same was disallowed
by the Assessing Officer.
On this issue, the High Court observed that if any payment is made towards the security
of the business of the assessee, such amount is allowable as deduction, as the amount
is spent for maintenance of peace and law and order in the business premises of the
assessee i.e., cinema theatres in this case. However, the amount claimed by the
assessee, in the instant case, was towards payment made to the police and gundas.
Any payment made to the police illegally amounts to bribe and such illegal gratification
cannot be considered as an allowable deduction. Similarly, any payment to a gunda as a
precautionary measure so that he shall not cause any disturbance in the theatre run by
the assessee is an illegal payment for which no deduction is allowable under the Act.
If the assessee had incurred expenditure for the purpose of security, the same would
have been allowed as deduction. However, in the instant case, since the payment has
been made to the police and gundas to keep them away from the business premises,
such a payment is illegal and hence, not allowable as deduction.
27. Can expenditure incurred on alteration of a damto ensure adequate supply of
water for the smelter plant owned by the assessee be allowed as revenue
expenditure?
CIT v. Hindustan Zinc Ltd. (2010) 322 ITR 478 (Raj.)
The assessee company owned a super smelter plant which requires large quantity of
water for its day-to-day operation, in the absence of which it would not be able to
function. The assessee, therefore, incurred expenditure for alteration of the dam
(constructed by the State Government) to ensure sharing of the water with the State
Government without having any right or ownership in the dam or water. The assessees
share of water is also determined by the State Government. The assessee claimed the
expenditure as deduction under section 37, which was disallowed by the Assessing
Officer on the ground that it was of capital nature. The Tribunal, however, was of the view
that since the object and effect of the expenditure incurred by the assessee is to facilitate
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its trade operation and enable the management to conduct business more efficiently and
profitably, the expenditure is revenue in nature and hence, allowable as deduction.
The High Court observed that the expenditure incurred by the assessee for commercial
expediency relates to carrying on of business. The expenditure is of such nature which a
prudent businessman may incur for the purpose of his business. The operational
expenses incurred by the assessee solely intended for the furtherance of the enterprise
can by no means be treated as expenditure of capital nature.
28. Is the amount paid by a construction company as regularization fee for violating
building bye-laws allowable as deduction?
Millennia Developers (P) Ltd. v. DCIT (2010) 322 ITR 401 (Karn.)
The assessee, a private limited company carrying on business activity as a developer
and builder, claimed the amount paid by way of regularization fee for the deviations made
while constructing a structure and for violating the plan sanctioned in terms of the
building bye-laws, approved by the municipal authorities as per the provisions of the
Karnataka Municipal Corporations Act, 1976. The assessees claim was disallowed by
the Assessing Officer and the disallowance was confirmed by the Tribunal.
The High Court observed that as per the provisions of the Karnataka Municipal
Corporations Act, 1976, the amount paid to compound an offence is obviously a penalty
and hence, does not qualify for deduction under section 37. Merely describing the
payment as a compounding fee would not alter the character of the payment.
Note In this case, it is the actual character of the payment and not its nomenclature
that has determined the disallowance of such expenditure as deduction. The principle of
substance over formhas been applied in disallowing an expenditure in the nature of
penalty, though the same has been described as regularization fee/compounding fee.
29. Can an assessee, engaged in money lending business, claiminterest paid on
money borrowed as business expenditure?
Rajendra Kumar Dabriwala v. CIT (2012) 347 ITR 353 (Cal.)
In the present case, the assessee was engaged in the business of dealing in shares and
money lending. He borrowed funds for lending purposes, paid interest on the funds
borrowed and claimed the same as deduction while computing business income. The
interest received was shown as income. The Assessing Officer did not allow the claim of
interest paid as business expenditure on the contention that, substantial amount of loan
was obtained by the assessee from various parties and substantial amount of loans were
given to different parties. The Assessing Officer claimed that the loans were not given for
the sake of business transactions but simply the loans taken from one party were
transferred to the other parties by way of loan.
The Calcutta High Court held that the Assessing Officer is not right in his contention,
since the assessee is in the money lending business. He is entitled to receive interest
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from the loan advanced and is also entitled to take loan for running the money lending
business. Therefore, the assessee is lawfully entitled to deduct interest paid on the funds
borrowed as business expenditure, subject however to the provisions contained in
section 14A. In other words, if any loan has been taken by the assessee in relation to
the income which does not form part of his total income under the Act, the assessee will
not get deduction of interest paid on that amount.
30. Can advance given to employees and security deposit paid to the landlord, which
became irrecoverable, be allowed as a business loss?
CIT v. Triveni Engg. & Industries Ltd. (2012) 343 ITR 245 (Delhi)
The amalgamating company had given certain advances to employees and had made a
security deposit with the landlord for obtaining lease of premises for purposes of its
business. Both the advance given and the security deposit paid by the amalgamating
company became irrecoverable and were written off in the books of account of the
assessee-amalgamated company. The Assessing Officer disallowed the said claims on
the ground that the same is not directly related to carrying on of the business of the
assessee-amalgamated company nor is it incidental to the same.
On the above mentioned issue, the Delhi High Court held that advances to employees
were given by the amalgamating company in the ordinary course of business by way of
temporary financial accommodation to be recovered out of the salary paid to the
employees. The giving of such advances was necessitated in order to share up the
personal finances of the employees, to meet any emergency/financial commitment and
keep the employees motivated, contended and happy. Therefore, such advances given to
persons who had been employed by the assessee company which have become
irrecoverable would be treated as business loss.
However, as regards the allowability of non-recoverable security deposit given to the
landlord for obtaining lease of premises for purposes of business, the High Court
observed that the security deposits were refundable and therefore, were not in the form
of rent. They were given for securing the premises on rent. The assessee had obtained a
right to use the property, i.e., tenancy right, which is a capital asset. Therefore, it is not
allowable as business loss.
31. Can remuneration paid to working partners as per the partnership deed be
considered as unreasonable and excessive for attracting disallowance under
section 40A(2)(a) even though the same is within the statutory limit prescribed
under section 40(b)(v)?
CIT v. Great City Manufacturing Co. (2013) 351 ITR 156 (All)
In this case, the Assessing Officer contended that the remuneration paid by the firm to its
working partners was highly excessive and unreasonable, on the ground that the
remuneration to partners (` 39.31 lakh) was many times more than the total payment of
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salary to all the employees (` 4.87 lakh). Therefore, he disallowed the excessive portion
of the remuneration to partners by invoking the provisions of section 40A(2)(a).
On this issue, the High Court observed that section 40(b)(v) prescribes the limit of
remuneration to working partners, and deduction is allowable up to such limit while
computing the business income. If the remuneration paid is within the ceiling limit
provided under section 40(b)(v), then, recourse to provisions of section 40A(2)(a) cannot
be taken.
The Assessing Officer is only required to ensure that the remuneration is paid to the
working partners mentioned in the partnership deed, the terms and conditions of the
partnership deed provide for payment of remuneration to the working partners and the
remuneration is within the limits prescribed under section 40(b)(v). If these conditions
are complied with, then the Assessing Officer cannot disallow any part of the
remuneration on the ground that it is excessive.
The Allahabad High Court, therefore, held that the question of disallowance of
remuneration under section 40A(2)(a) does not arise in this case, since the Tribunal has
found that all the three conditions mentioned above have been satisfied. Hence, the
remuneration paid to working partners within the limits specified under section 40(b)(v)
cannot be disallowed by invoking the provisions of section 40A(2)(a).

32. Can the waiver of principal amount of loan taken for purchase of capital asset by
the bank be treated as benefit arising out of business or a remission of trading
liability for taxability as business income of the company?
Iskraemeco Regent Ltd. v. CIT (2011) 331 ITR 317 (Mad.)
The assessee company, engaged in the business of development, manufacturing and
marketing of electro-mechanical and static energy meters, took a bank loan for purchase
of capital assets. The grant of bank loan for purchase of a capital asset is a capital
receipt and not a trading receipt.
The provisions of section 41(1) are attracted only in case of remission of a trading
liability. Since the loan was taken for purchase of capital assets, waiver of a portion of
principal would not amount to remission of a trading liability to attract the provisions of
section 41(1). Further, such waiver cannot be treated as a benefit arising out of business
and consequently, section 28(iv) will not apply in respect of such loan transaction.
33. Can the provisions of section 41(1) be invoked both in respect of waiver of working
capital loan utilized for day-to-day business operations and in respect of waiver of
termloan taken for purchasing a capital asset?
Rollatainers Ltd. v. CIT (2011) 339 ITR 54 (Del.)
The assessee, a sick company under the provisions of the Sick Industrial Companies
(Special Provisions) Act, 1985, approached the Corporate Debt Restructuring Cell for
settlement of outstanding dues of various financial institutions/banks. The Cell approved
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the reworked restructuring package, pursuant to which financial institutions and banks
waived part of their respective dues, comprising principal and interest. The
Commissioner (Appeals) held that the principal amount of loans waived by the banks,
including the waiver of the principal amount against the working capital loans in the form
of cash credit limits did not constitute taxable income. The Tribunal held that the waiver
of the working capital loan utilized towards day-to-day business operations resulted in
manifest in the revenue field and hence was taxable in the year of waiver.
The High Court observed that the Tribunal had found as a fact that the term loans were
taken for the purchase of capital assets from time to time. Therefore, as regards term
loans, the Tribunal had come to a conclusion that since the monies did not come into the
possession of the assessee on account of any trading transaction, the receipts were
capital in nature, being loan repayable over a period of time along with interest.
Therefore, on writing off of the loans, no benefit or perquisite arose to the assessee in
the revenue field.
The liability in question, i.e. the term loan for purchase of capital assets, is not a trading
liability. Therefore, the provisions of section 41(1) are not attracted in this case since the
waiver was in respect of a term loan taken for a capital asset and hence, cannot be
treated as remission or cessation of a trading liability. Thus, the waiver of such term
loans cannot be treated as income of the assessee.
However, in case loan is written off in the cash credit account, the benefit is in the revenue
field as the money had been borrowed for day-to-day affairs and not for the purchase of
capital asset. These loans were for circulating capital and not fixed capital.
Therefore, the writing off of these loans on the cash credit account which was received for
carrying out the day-to-day operations of the assessee amounted to remission of a trading
liability and hence, has to be treated as income in the hands of the assessee by virtue of
section 41(1).
Note: The crux of the High Court decision is that the provisions of section 41(1) are
attracted in respect of waiver of the working capital loan utilized for day-to-day business
operations, since it amounted to remission of a trading liability. However, in the case of
waiver of termloan for purchasing capital assets, the provisions of section 41(1) are not
attracted since it cannot be treated as remission or cessation of a trading liability.
34. Can moneys payable in respect of a building sold by the assessee (which has to
be reduced fromthe opening written down value of the block of assets for
calculating depreciation) be construed as the fair market value of the asset instead
of the actual sale price?
CIT v. Cable Corporation of India Ltd. (2011) 336 ITR 56 (Bom.)
On this issue, the Bombay High Court observed that the moneys payable to be reduced
from the written down value of the block of assets as per section 43(6) is to be construed
as per the meaning assigned to the same according to the Explanation below section
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41(4) which states that the "moneys payable" in relation to the sale of a building,
machinery, plant or furniture would be the price for which it is sold.
Therefore, the written down value of the asset falling within that block of assets at the
beginning of the previous year has to be adjusted by the amount for which the asset is
actually sold and not by its fair market value.
It may, however, be noted that, in case of scrap, the amount of scrap value (i.e. the fair
market value) has to be reduced as per the provisions of section 43(6), to arrive at the
written down value at the end of the year.
35. Can unpaid electricity charges be treated as fees to attract disallowance under
section 43B?
CIT v. Andhra Ferro Alloys P. Ltd. (2012) 349 ITR 255 (A.P)
On this issue, the Assessing Officer was of the view that electricity charges come within
the ambit of section 43B and therefore, could be allowed as deduction only on payment
basis. Therefore, he disallowed the unpaid electricity charges. The Tribunal, however,
set aside the disallowance.
The Andhra Pradesh High Court observed that the provisions of section 43B do not
incorporate electricity charges. Therefore, non-payment of electricity charges would not
attract disallowance under section 43B since such charges cannot be termed as fees.
The Court, therefore, held that deduction is allowable in respect of such electricity
charges.
36. Would the special provisions for computing profits under section 44BB be
applicable to a non-resident carrying on business of seismic data acquisition and
processing under contract with Indian concerns?
Global Geophysical Services Ltd., In re (2011) 332 ITR 418 (AAR)
On an application made to the Authority of Advance Ruling by the non-resident on the
above issue, the Authority observed that, on an identical issue in
Geofizyka Torun SP.
Z.O.O. (2010) 320 ITR 0268 (AAR), it was observed that without seismic data acquisition
and interpretation, it is impractical to carry out the activity of prospecting of mineral oil
and gas which is a step in aid to its exploration.

The seismic data (in processed form) is
used to create highly accurate images of the earth's sub-surface which in turn are used
by the exploration and production companies for locating potential oil and gas reserves
based upon the geology observed.
The AAR, accordingly,
ruled that the said activities and services of the applicant clearly
fell within the description of section 44BB and the income derived by the applicant under
the contracts with Indian concerns, namely ONGC and Cairn Energy, for seismic data
acquisition and processing were to be computed under the provisions of section 44BB.
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37. Can the Assessing Officer bring to tax the actual profits as per books of accounts,
if the
same
is higher than 10% of receipts which are deemed to be the profits under
section 44BBB in case of a foreign company engaged in turnkey projects?
DIT v. DSD Noell GmbH (2011) 333 ITR 304 (Delhi)
In the present case, the assessee is a German company providing engineering and
technical services for various projects eligible for presumptive taxation scheme under
section 44BBB. The assessee filed its return declaring a sum equal to 10% of the amount
paid or payable to the assessee under the projects undertaken by it as deemed profits
and gains chargeable to tax under the head "Profits and gains of business or profession"
as per the provisions of section 44BBB. The Assessing Officer contended that on the
basis of books of account maintained by the assessee, the profits could be more than
10% and therefore, the actual profits should be brought to tax by invoking sub-section (2)
of section 44BBB.
On the above issue, the Delhi High Court held that if an assessee fulfills all the
conditions mentioned in section 44BBB(1), the provisions of sections 28 to 44AA of the
Act would not be applicable for computation of its business income, and a sum equal to
10% of the amount paid or payable to such foreign company would be deemed as its
business income. Further, under section 44BBB(2), the assessee has the benefit of
declaring before the Assessing Officer that the actual profits earned by it were less than
10% but the Revenue cannot take recourse of this sub-section to claim that the profits
earned by the assessee were more than 10%.

38. Is the income or expenses of an asset management company liable to be assessed
on the basis of the maximumlimit mentioned in the SEBI regulations or should the
assessment be made on the basis of the actual income or expenses charged?
CIT v. Templeton Asset Management (India) P. Ltd. (2012) 340 ITR 279 (Bom.)
The assessee is a private limited company engaged in the business of asset
management of mutual funds. The Assessing Officer noticed and made additions in
respect of the under mentioned items:
(i) The difference between the ceiling for investment advisory fees prescribed under
the relevant regulation of the Securities and Exchange Board of India and the actual
amount claimed as being charged from the mutual fund.
(ii) Certain expenses incurred by the assessee on behalf of the mutual funds. The
assessee recovered only a part of those expenses from the mutual fund and the
balance was borne by the assessee itself. In some cases, the whole expense was
borne by the assessee. The Assessing Officer, relying on the relevant SEBI
regulation, contended that since the SEBI regulation empowers the assessee to
recover those expenses up to the ceiling prescribed therein, the assessee was not
justified in charging those expenses to its own account, thereby reducing its taxable
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income. Accordingly, the Assessing Officer added the differential amount to the
income of the assessee.
On the issue mentioned in (i) above, the Bombay High Court, confirming the decision of
the Commissioner (Appeals) and the Income-tax Appellate Tribunal, held that the
relevant SEBI regulation provides for the maximum limit towards the fees that could be
charged by an asset management company from the mutual funds. In case due to
business exigencies, if the assessee, an asset management company, collects lesser
amount of fees than the ceiling prescribed, it is not open to the Assessing Officer to make
additions on notional basis and assess the assessee at the maximum amount prescribed
under the SEBI regulation.
Similarly, in respect of the issue mentioned in (ii) above, it was held that it is a bona fide
decision of the assessee to claim part of the expenses or claim no expense from the
mutual funds on the basis of commercial prudence. The ceiling on expenses mentioned
in the SEBI regulation is the maximum amount that can be claimed from the mutual fund.
The restrictions under the SEBI Regulations are imposed with a view to ensure that the
mutual funds are not overcharged and the said Regulations are not intended to
mandatorily burden the mutual funds with the liability set out in the Regulations. In case
an asset management company does not charge the mutual funds part of the expenses
actually incurred due to a bona fide commercial decision, then, no part of the expenditure
can be disallowed unless it is established that there were no business exigencies or the
claim was not genuine. Therefore, the disallowance made by the Assessing Officer in the
present case is not justified since the transaction was genuine in nature.

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6
CAPITAL GAINS
1. What are the factors determining the nature of income arising on sale of shares i.e.
whether the income is taxable as capital gains or business income?
PVS Raju v. ACIT (2012) 340 ITR 75 (AP.)
On the said issue, the Andhra Pradesh High Court held that the question whether the shares
were held as an investment to give rise to capital gain on its sale or as a trading asset to give
rise to business income is not a pure question of law but essentially one of fact.
The character of a transaction cannot be determined solely on the application of any
abstract rule, principle or test but must depend upon all the facts and circumstances of
the case. The facts that may be considered while determining the same are the
magnitude and frequency of buying and selling of shares by the assessee; the period of
holding of shares, ratio of sales to purchases and the total holdings, etc. Mere
classification of shares in the books of accounts of the assessee is not relevant for
determining the nature of income for income-tax purposes.
2. Would an asset which is sold the very next day after the period of 12/36 months is
over, be treated as long-termcapital asset by including both the date on which the
asset is acquired and the date on which the asset is transferred for computing
period of holding?
Bharti Gupta Ramola v. CIT [2012] 207 Taxman 178 (Delhi)
As per section 2(29A), long-term capital asset means a capital asset which is not a short-
term capital asset. Further, section 2(42A) defines "short-term capital asset" to mean a
capital asset held by an assessee for not more than thirty-six months immediately
preceding the date of its transfer. However, in case of a share held in a company or any
other security listed in a recognized stock exchange in India or a unit of the Unit Trust of
India, or a unit of a Mutual Fund specified under section 10(23D) or a zero coupon bond,
"twelve months" would be considered instead of "thirty-six months" for the purpose of
section 2(42A).
In the present case, the assessee had sold two mutual fund instruments on 29.9.2005
and 14.10.2005 and had shown the income earned as long-term capital gains. The
aforesaid mutual fund instruments were purchased by the assessee on 29.9.2004 and
14.10.2004. The Assessing Officer treated the two gains as short-term capital gains on
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the ground that the instruments had not been held for a period of more than 12 months
immediately preceding the date of transfer. The contention of the Revenue was that the
asset must be held for a period of more than 36/12 months plus one day before the date
when the transfer is made, to be treated as a long-term capital asset. In effect, the date
on which the transfer is made has to be excluded.
The High Court observed that the expression "immediately preceding the date of
transfer" is a cut off point for determining and deciding the period during which the asset
was held by an assessee. The said expression should not be interpreted to mean that the
date of transfer itself should be added or excluded.
Section 2(42A) stipulates that if an asset is held for 36/12 months, or less, it will be a
short term capital asset. The term "month" would mean "calendar month". In normal
course, period of 12 calendar months would begin on the specified day when the asset
was transferred and the assessee became the holder of the asset and end one day
before in the relevant calendar month, next year. The expression used in section 2(42A)
is "for not more than 36/12 months". The requirement prescribed is that the assessee
should not hold the asset for more than 36/12 months. The moment an assessee
exceeds this period and the holding continues beyond 36/12 months, the asset is treated
as a long term asset and accordingly the gains are computed. For computing the period
of 12/36 months, neither the date on which the asset is acquired, nor the date of
sale/transfer is to be excluded. Thus, if an asset is held for 12/36 months and is sold the
very next day after the period of 12/36 months is over, the asset would be treated as a
long term capital asset. There is nothing in the said section to show and hold that the
time period would not include fraction of a day.
Thus, an asset acquired on the 1st January would complete 12 months at the end of the
said year, i.e. on 31st December and if it is sold on 1st January next year and if the
proviso to section 2(42A) applies, it would be treated as a long term capital gains.
3. In determining the period of holding of a capital asset received by a partner on
dissolution of firm, can the period of holding of the capital asset by the firmbe
taken into account?
P. P. Menon v. CIT (2010) 325 ITR 122 (Ker.)
The assessee was a partner in a firm which owned a hospital building and land. The firm
was dissolved and the entire assets including the hospital building and land were taken
over by the assessee. The assessee sold the hospital building and the land within three
days of dissolution. He, however, claimed that the period of holding should be reckoned
by including the period when he was a partner of the firm. He contended that since the
total period has more than 36 months, the capital gain was to be treated as a long-term
capital gain.
The High Court held that the benefit of including the period of holding of the previous
owner under section 2(42A) read with section 49(1)(iii)(b) can be availed only if the dis-
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solution of the firm had taken place at any time before April 1, 1987. In this case, the firm
was dissolved on April 15, 2001 and therefore the benefit of these sections would not be
available to the assessee.
Therefore, in this case, the period of holding of the asset received by the assessee-
partner on dissolution of the firm has to be reckoned only from the date of dissolution of
the firm. Since the assessee-partner has sold the property within three days of acquiring
the same, the gains have to be treated as short-term capital gain.
4. What would be the period of holding to determine whether the capital gains on
renunciation of right to subscribe for additional shares is short-termor long-term?
Navin J indal v. ACIT (2010) 320 ITR 708 (SC)
On this issue, the Apex Court observed that the right to subscribe for additional offer of
shares on rights basis, on the strength of existing shareholding in a company, comes into
existence when the company decides to come out with the rights offer. Prior to that date,
the right, though embedded in the original shareholding, remains inchoate. It crystallizes
only when the rights offer is announced by the company.
Therefore, for determining whether the capital gains on renunciation of right to subscribe
for additional shares is short-term or long-term, the period of holding would be from the
date on which such right to subscribe for additional shares comes into existence upto the
date of renunciation of such right.
5. Whether indexation benefit in respect of the gifted asset shall apply fromthe year
in which the asset was first held by the assessee or fromthe year in which the
same was first acquired by the previous owner?
CIT v. Manjula J . Shah 16 Taxman 42 (Bom.)
As per Explanation 1 to section 2(42A), in case the capital asset becomes the property of the
assessee in the circumstances mentioned in section 49(1), inter alia, by way of gift by the
previous owner, then for determining the nature of the capital asset, the aggregate period for
which the capital asset is held by the assessee and the previous owner shall be considered.
As per the provisions of section 48, the profit and gains arising on transfer of a long-term
capital asset shall be computed by reducing the indexed cost of acquisition from the net
sale consideration. The indexed cost of acquisition meant the amount which bears to the
cost of acquisition the same proportion as Cost Inflation Index (CII) for the year in which
the asset is transferred bears to the CII for the year in which the asset was first held by
the assessee transferring it i.e., the year in which the asset was gifted to the assessee in
case of transfer by the previous owner by way of gift.
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In the present case, the assessee had acquired a capital asset by way of gift from the
previous owner. The said asset when transferred was a long-term capital asset
considering the period of holding by the assessee as well as the previous owner. The
assessee computed the long-term capital gain considering the CII of the year in which
the asset was first held by the previous owner. The Assessing Officer raised an objection
mentioning that as per meaning assigned to the Indexed cost of acquisition, the CII of the
year in which the asset is first held by the assessee need to be considered and not the
CII of the year in which the asset was first held by the previous owner.
In the present case, the Bombay High Court held that by way of deemed holding period
fiction created by the statute, the assessee is deemed to have held the capital asset
from the year the asset was held by the previous owner and accordingly the asset is a
long term capital asset in the hands of the assessee. Therefore, for determining the
indexed cost of acquisition under Section 48, the assessee must be treated to have held
the asset from the year the asset was first held by the previous owner and accordingly
the CII for the year the asset was first held by the previous owner would be considered
for determining the indexed cost of acquisition.
Hence, the indexed cost of acquisition in case of gifted asset has to be computed with
reference to the year in which the previous owner first held the asset and not the year in
which the assessee became the owner of the asset.
Note - The Delhi High Court, in the case of Arun Shungloo Trust v. CIT (2012) 205
Taxman 456 (Delhi) has also given the similar view on the said issue. The court
observed that as per Explanation (iii) to section 48, the expression asset held by the
assessee is not defined and therefore, in the absence of any intention to the contrary, it
has to be construed in consonance with the meaning given in section 2(42A). However,
the Assessing Officer contended that in section 49, the benefit of indexed cost of
acquisition will be available only fromthe date the capital asset was transferred and not
fromthe date on which the asset was held by the previous owner.
The High Court observed that this will result in inconsistency because as per the
provisions of Explanation to section 48, the holding of predecessor has to be accounted
for the purpose of computing the cost of acquisition, the cost of improvement and
indexed cost of improvement, but not for the purpose of indexed cost of acquisition.
In the present case, the Bombay High Court held that by way of deemed holding period
fiction created by the Statute, the assessee is deemed to have held the capital asset
fromthe year the asset was held by the previous owner and accordingly, the asset is a
long termcapital asset in the hands of the assessee. Therefore, for determining the
indexed cost of acquisition under section 48, the assessee must be treated to have held
the asset fromthe year in which the asset was first held by the previous owner and
accordingly the cost inflation index for the year the asset was first held by the previous
owner would be considered for determining the indexed cost of acquisition.
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6. Can non-cumulative preference shares carrying a fixed rate of dividend with a fixed
holding period be equated with bonds or debentures so as to deny the indexation
benefit while computing capital gain on its transfer, applying the third proviso to
section 48?
CIT v. EnamSecurities P. Ltd. (2012) 345 ITR 64 (Bom.)
As per the third proviso to section 48, benefit of indexation is not available on transfer of
a long-term capital asset, being bond or debenture other than capital indexed bonds
issued by the government.
In the present case, the assessee had subscribed to non-cumulative preference shares
of a private limited company carrying dividend@4% p.a. and redeemable after the expiry
of 10 years from the date of allotment. On the redemption of a part of the aforesaid
preference shares at par, the assessee computed the capital loss on the same after
claiming the benefit of indexation. However, the Assessing Officer claimed that the above
mentioned 4% non-cumulative redeemable preference shares have a fixed holding period
and a fixed rate of return which are the principal characteristics of a bond and on this
basis denied the benefit of cost indexation to the assessee, applying the third proviso to
section 48.
On this issue, the Bombay High Court, following the judgement of the Supreme Court in
Anarkali Sarabhai v. CIT (1997) 224 ITR 422, observed that the redemption of preference
shares by a company falls within the ambit of section 2(47) and amounts to transfer so as
to attract capital gain tax.
The Court held that, since shares, debentures and bonds are not defined in the Income-
tax Act, 1961, the terms have to be understood from the meaning given in the Companies
Act, 1956 (now, Companies Act, 2013). As per the Companies Act, 1956 (now, Section
43 of the Companies Act, 2013), the share capital of a company limited by shares can be
of two kinds only, namely, equity share capital and preference share capital. Further, as
per section 2(12) of the Companies Act, 1956 [Section 2(30) of the Companies Act,
2013], debenture is defined to include debenture stock, bonds and any other securities of
a company, whether or not they constitute a charge on the assets of the company. A
debenture is a certificate of a loan or a bond evidencing the fact that the company is
liable to pay an amount specified with interest. Though the amount which is raised by a
company through debentures becomes a part of its capital structure, it does not become
part of share capital. Hence, the 4% non-cumulative preference shares cannot be said to
be in the nature of bonds or debentures.
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Therefore, the indexation benefit on the transfer of long-term capital asset, being 4%
non-cumulative preference shares cannot be denied applying the provisions of the third
proviso to section 48.
7. Would an assessee be entitled to exemption under section 54 in respect of
purchase of two flats, adjacent to each other and having a common meeting point?
CIT v. Syed Ali Adil (2013) 352 ITR 0418 (A.P.)
The assessee-individual had inherited an ancestral house property, which he sold during
the relevant previous year. Out of the sale consideration, he purchased two adjacent
residential flats. The assessee claimed exemption under section 54 in respect of
investment in both the residential flats, in view of the decision of the Karnataka High
Court in CIT v. Ananda Basappa (2009) 309 ITR 329, wherein investment in two
adjacent flats were considered eligible for exemption under section 54.
The Assessing Officer, however, restricted the exemption under section 54 only in
respect of investment in one residential flat (including stamp duty paid for registration of
the flat), contending that
(i) the two residential units were separated by a strong wall;
(ii) the two flats were purchased from two different vendors under two separate sale
deeds.
The Commissioner (Appeals), however, observed that the assessee was entitled to
exemption under section 54 in respect of investment in both the flats, since the two flats
had adjacent kitchens and toilets and also had a common meeting point. The Tribunal
concurred with the view of the Commissioner (Appeals).
On appeal by the Revenue, the High Court referred to the Karnataka High Court decision
in CIT v. Ananda Basappa (2009) 309 ITR 329, wherein it was observed that
(i) the expression a residential house in section 54(1) has to be understood in a
sense that the building should be of residential nature and a should not be
understood to indicate a singular number.
(ii) where the flats are situated side by side and the builder had effected the necessary
modification to make it as one unit, the assessee would be entitled to exemption
under section 54 in respect of investment in both the flats, despite the fact that they
were purchased by separate sale deeds.
The above ruling was also followed by the Karnataka High Court in CIT v. K.G.
Rukminiamma (2011) 331 ITR 211, wherein it was held that were a residential house was
transferred and four flats in a single residential complex were purchased by the
assessee, all the four residential flats constituted a residential house for the purpose of
section 54.
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The Andhra Pradesh High Court, on the basis of the above rulings of the Karnataka High
Court, held that in this case, the assessee was entitled to investment in both the flats
purchased by him, since they were adjacent to each other and had a common meeting
point.
8. Can exemption under section 54 be claimed in respect of more than one residential flat
acquired by the assessee under a joint development agreement with a builder, wherein
the property owned by the assessee was developed by the builder who constructed
eight residential flats in the said property, four of which were given to the assessee?
CIT v. Smt. K. G. Rukminiamma (2011) 331 ITR 211 (Kar.)
The assessee, being the owner of a property, entered into a joint development
agreement with a builder to develop the property. Under the agreement, the builder
constructed eight residential flats and handed over four residential flats to the assessee.
The entire cost of construction and other expenses were borne by the builder.
The issue under consideration is whether capital gains exemption under section 54 can
be claimed in respect of the four residential flats treating them as a residential house. In
the present case, the Revenue contended that the benefit of deduction under section 54
could be availed only in respect of one residential flat and in respect of the remaining
three residential flats, the assessee was not entitled to deduction under section 54.
The Karnataka High Court, applying the decision in Anand Basappa (2009) 309 ITR 329 (Kar.)
to the present case, held that all the four flats are situated in the same residential building and
hence, will constitute "a residential house" for the purpose of section 54. Therefore, the
assessee would be entitled to deduction under section 54 in respect of all four flats.
9. Can exemption under section 54B be denied solely on the ground that the new
agricultural land purchased is not wholly owned by the assessee, as the
assessees son is a co-owner as per the sale deed?
CIT v. GurnamSingh (2010) 327 ITR 278 (P&H)
The assessee claimed deduction under section 54B in respect of the land purchased by
him along with his son out of the sale proceeds of the agricultural land. However, the
same was denied by the Assessing Officer on the ground that the land was registered in
the name of the assessees son.
The Tribunal observed that the agricultural land sold belonged to the assessee and the
sale proceeds were also used for purchasing agricultural land. The possession of the
said land was also taken by the assessee. It is not the case that the sale proceeds were
used for other purposes or beyond the stipulated period. The only objection raised by the
Revenue was that the land was registered in the name of his son. Therefore, it cannot be
said that the capital gains were in any way misused for any other purpose contrary to the
provisions of law.
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In this case, the High Court concurred with the Tribunals view that merely because the
assessees son was shown in the sale deed as co-owner, it did not make any difference.
It was not the case of the Revenue that the land in question was exclusively used by the
son. Therefore, the assessee was entitled to deduction under section 54B.
10. Can exemption under section 54F be denied solely on the ground that the new
residential house is purchased by the assessee exclusively in the name of his
wife?
CIT v. Kamal Wahal (2013) 351 ITR 4 (Delhi)
The assessee sold a capital asset and invested the sale proceeds in purchase of a new
house in the name of his wife. He claimed deduction under section 54F in respect of the
new residential house purchased by him in the name of his wife. However, the same was
denied by the Assessing Officer on the ground that, in order to avail the benefit under
section 54F, the investment in the residential house should be made by the assessee in
his own name.
The Tribunal, however, accepted the assessees contention observing that since section
54F is a beneficial provision enacted for encouraging investment in residential houses,
the said provision has to be interpreted liberally.
The Delhi High Court concurred with the Tribunals view and observed that, for the
purpose of section 54F, a new residential house need not necessarily be purchased by
the assessee in his own name nor is it necessary that it should be purchased exclusively
in his name. A similar view was upheld by this Court in CIT v. Ravinder Kumar Arora
(2012) 342 ITR 38, where the new residential house was acquired in the joint names of
the assessee and his wife and the Court had held that the assessee was entitled for
100% exemption under section 54F. In that case, it was further observed that section
54F does not require purchase of new residential house property in the name of the
assessee himself. It only requires the assessee to purchase or construct a residential
house.
Further, in this case, the Delhi High Court observed that the assessee had not purchased
the new house in the name of a stranger or somebody who is unconnected with him, but
had purchased it in the name of his wife. The entire investment for purchase of new
residential house had come out of the sale proceeds of the capital asset (of the
assessee) and there was no contribution from his wife.
Hence, the Delhi High Court, having regard to the rule of purposive construction and the
object of enactment of section 54F, held that the assessee is entitled to claim exemption
under section 54F in respect of utilization of sale proceeds of capital asset for investment
in residential house property in the name of his wife.
11. In case of a house property registered in joint names, whether the exemption under
section 54F can be allowed fully to the co-owner who has paid whole of the
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purchase consideration of the house property or will it be restricted to his share in
the house property?
CIT v. Ravinder Kumar Arora (2012) 342 ITR 38 (Delhi)
In the present case, the assessee filed the return of income showing long-term capital
gain on sale of plot of land. The assessee claimed exemption under section 54F from
such long-term capital gain on account of purchase of new residential house property
within the stipulated time period as mentioned in the aforesaid section. He claimed
exemption under section 54F taking into consideration the whole of purchase price of the
residential house property. However, after going through the purchase deed of the house
property, the Assessing Officer found that the said house property was purchased in joint
names of assessee and his wife. Therefore, the Assessing Officer allowed 50% of the
exemption claimed under section 54F, being the share of the assessee in the property
purchased in joint names.
The assessee submitted that the inclusion of his wifes name in the sale deed was just to
avoid any litigation after his death. He further explained that all the funds invested in the
said house were provided by him, including the stamp duty and corporation tax paid at
the time of the registration of the sale deed of the said house. This fact was also clearly
evident from the bank statement of the assessee. The assessee claimed that the
exemption under section 54F is to be allowed with reference to the full amount of
purchase consideration paid by him for the aforesaid residential house and is not to be
restricted to 50%. The Assessing Officer did not deny the fact that the whole amount of
purchases of the house was contributed by the assessee and nothing was contributed by
his wife. However, the Assessing Officer opined that exemption under section 54F shall
be allowed only to the extent of assessees right in the new residential house property
purchased jointly with his wife, i.e. 50%.
Considering the above mentioned facts, the Delhi High Court held that the assessee was
the real owner of the residential house in question and mere inclusion of his wifes name
in the sale deed would not make any difference. The High Court also observed that
section 54F mandates that the house should be purchased by the assessee but it does
not stipulate that the house should be purchased only in the name of the assessee. In
this case, the house was purchased by the assessee in his name and his wife's name
was also included additionally. Therefore, the conditions stipulated in section 54F stand
fulfilled and the entire exemption claimed in respect of the purchase price of the house
property shall be allowed to the assessee.
Note - A similar view was taken by the Karnataka High Court in the case of DIT (IT) v.
Mrs. J ennifer Bhide (2011) 203 Taxman 208, in the context of deductions under section
54 and 54EC, wherein the assessee had sold a residential house property. The
assessee, in order to claimexemption of the long-termcapital gain, made the investment
in the residential house property and bonds jointly in her name and in the name of her
husband. The Karnataka High Court, in this case, observed that it was clear fromthe
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facts of this case that the entire investment was done by the assessee and no
contribution was made by her husband. Therefore, in the present case, it was, held that
section 54 and 54EC only stipulate that the capital gain arising on a sale of property is to
be invested in a residential house property or in the long-termspecified asset i.e., bonds.
It is not mandatory in those sections that the investment is to be made in the name of the
assessee only. The name of the assessees husband is shown in the sale deed as well
as in the bonds, as a joint owner. However, since the consideration for acquisition flows
entirely fromthe assessees funds, the assessee is entitled to claimdeduction under
section 54 and 54EC in respect of the full amount invested. Therefore, in the present
case, the exemption under section 54 and 54EC shall not be restricted to 50%, being the
share of the assessee in the ownership of the house property and the bonds. The
assessee is entitled to 100% exemption of the long-termcapital gain so invested in the
residential house property and in the bonds.
12. Can exemption under section 54F be denied to an assessee in respect of
investment made in construction of a residential house, on the ground that the
construction was not completed within three years after the date on which transfer
took place, on account of pendency of certain finishing work like flooring,
electrical fittings, fittings of door shutter, etc?
CIT v. SambandamUdaykumar (2012) 345 ITR 389 (Kar.)
In this case, the assessee has claimed benefit of exemption under section 54F in respect
of capital gain arising on sale of shares of a company by investing the amount in
construction of a house property. However, the Assessing Officer contended that no
exemption under section 54F would be available in this case, as the construction of a
residential house was not completed on account of pendency of certain work like flooring,
electrical fittings, fittings of door shutter, etc., even after lapse of three years from the
date of transfer of the shares.
The Karnataka High Court held that the condition precedent for claiming the benefit
under section 54F is that capital gains realized from sale of capital asset should have
been invested either in purchasing a residential house or in constructing a residential
house within the stipulated period. If he has invested the money in the construction of a
residential house, merely because the construction was not completed in all respects and
possession could not be taken within the stipulated period, would not disentitle the
assessee from claiming exemption under section 54F. In fact, in this case, the assessee
has taken the possession of the residential building and is living in the said premises
despite the pendency of flooring work, electricity work, fitting of door and window
shutters.
Therefore, the Court held that in this case the assessee would be entitled to exemption
under section 54F in respect of the amount invested in construction within the prescribed
period.
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13. Can the assessee claimexemption under section 54F, on account of capital gain
arising on transfer of depreciable assets held for more than 36 months i.e. a long-
termcapital asset, though the same is deemed as capital gain arising on transfer of
short-termcapital asset by virtue of section 50?
CIT v. Rajiv Shukla (2011) 334 ITR 138 (Delhi)
In the above mentioned case, the assessee had claimed benefit of exemption under section
54F in respect of capital gain arising on the sale of property, being a depreciable asset held
for more than 36 months i.e. long-term capital asset. However, the department contended
that no exemption under section 54F is available in this case, as the said exemption is
granted in respect of the capital gain arising from the transfer of a long-term capital asset
whereas the capital gain arising on transfer of depreciable asset is deemed to be capital gain
arising from transfer of short-term capital asset by virtue of provisions of section 50.
The Delhi High Court, in the present case, relying on the decision of the Bombay High Court
in the case of CIT v. Ace Builders P. Ltd. (2006) 281 ITR 210 and the decision pronounced by
Gauhati High Court in CIT v. AssamPetroleumIndustries P. Ltd. [2003] 262 ITR 587, in
relation to erstwhile section 54E, held that the deeming fiction created by section 50 that
the capital gain arising on transfer of a depreciable asset shall be treated as capital
gain arising on transfer of short-termcapital asset is only for the purpose of sections
48 and 49 and not for the purpose of any other section. Section 54F being an
independent section will not be bound by the provisions of section 50. The depreciable
asset if held for more than 36 months shall be a long-termcapital asset as per the
provisions of section 2(29A).
Therefore, the exemption under section 54F on transfer of depreciable asset held for
more than 36 months cannot be denied on account of fiction created by section 50.
14. Can an assessee be deprived of claiming exemption under section 54EC, if bonds
of assessees choice are not available or are available only for a broken period
within the period of six months after the date of transfer of capital asset and the
bonds are purchased shortly after it became available next time after the expiry of
the said six months?
CIT V. Cello Plast (2012) 209 Taxman 617 (Bom.)
In the present case, the assessee sold its building on 22.03.2006. To avail exemption
under section 54EC, the assessee was required to invest the sale proceeds either in the
bonds of Rural Electrification Corporation Ltd. (REC bonds) or in the bonds of National
Highway Authority (NHA bonds) within six months from the date of sale of building i.e. on
or before 21.09.2006. However, during this period of six months, REC bonds were
available only between 1.07.2006 to 3.08.2006. Thereafter, it became available only on
22.01.2007 to 31.01.2007. The assessee purchased the REC bonds on 31.01.2007 and
claimed the exemption under section 54EC.
However, the Assessing Officer disallowed the benefit of section 54EC to the assessee
and taxed the entire capital gain on the contention that bonds were purchased beyond
the period of six months from the date of transfer of capital asset. The Assessing Officer
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contended that since the REC bonds were available during the period from 1.07.2006 to
3.08.2006, the same could have been purchased before 3.08.2006. The Assessing
Officer further argued that the assessee could have purchased NHA bonds, if REC bonds
were not available throughout the period of said six months.
On the above mentioned issue, the Bombay High Court observed that though REC bonds
were available for limited period between 1.07.2006 to 3.08.2006, but assessee had time
till 21.09.2006 to invest in these bonds to avail the benefit under section 54EC. The
availability of the bonds only for a limited time during the period of six months from the
date of sale of the asset as provided in section 54EC, cannot restrict the assessees right
to exercise the same upto last date. The contention of the Revenue that since the REC
bonds were available upto 3.08.2006, the assessee should have purchased the bonds
before this date, is not sustainable as the time given by the statute is till 21.09.2006.
Hence, reasonable extension ought to be granted after the bonds are made available, at least
to the extent of the number of days between 4.08.2006 (being the last date the bonds were
available) and 21.09.2006 (being the expiry of 6 months from the date of transfer).
Therefore, the High Court held that since the assessee invested in the bonds on
31.01.2007 i.e within 9 days of their being available once again from 22.01.2007, he
cannot be deprived of exemption under section 54EC.
The High Court further held that since section 54EC gives the choice to the assessee
either to invest in RECL bonds or in NHAI bonds, in case the bonds of the assessees
choice are not available, the time to invest in the bonds get automatically extended till the
bonds are available in the market.
15. Can exemption under section 54EC be denied on account of the bonds being
issued after six months of the date of transfer even though the payment for the
bonds was made by the assessee within the six month period?
Hindustan Unilever Ltd. v. DCIT (2010) 325 ITR 102 (Bom.)
In this case, the Bombay High Court observed that in order to avail the exemption under
section 54EC, the capital gains have to be invested in a long-term specified asset within
a period of six months from the date of transfer. Where the assessee has made the
payment within the six month period, and the same is reflected in the bank account and a
receipt has been issued as on that date, the exemption under section 54EC cannot be
denied merely because the bond was issued after the expiry of the six month period or
the date of allotment specified therein was after the expiry of the six month period.
For the purpose of the provisions of section 54EC, the date of investment by the
assessee must be regarded as the date on which payment is made. The High Court,
therefore, held that if such payment is within a period of six months from the date of
transfer, the assessee would be eligible to claim exemption under section 54EC.
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7
INCOME FROMOTHER SOURCES
1. What are the tests to determine substantial part of business of lending company for
the purpose of application of exclusion provision under section 2(22)?
CIT v. Parle Plastics Ltd. (2011) 332 ITR 63 (Bom.)
Under section 2(22), dividend does not include, inter alia, any advance or loan made to
a shareholder by a company in the ordinary course of its business, where the lending of
money is a substantial part of the business of the company. The expression used in the
exclusion provision of section 2(22) is "substantial part of the business". Sometimes a
portion which contributes a substantial part of the turnover, though it contributes a
relatively small portion of the profit, would be termed as a substantial part of the
business. Similarly, a portion which is relatively small as compared to the total turnover,
but generates a large portion, say, more than 50% of the total profit of the company
would also be a substantial part of its business. Percentage of turnover in relation to the
whole as also the percentage of the profit in relation to the whole and sometimes even
percentage of manpower used for a particular part of the business in relation to the total
manpower or work force of the company would be required to be taken into consideration
for determining the substantial part of business. The capital employed for a specific
division of a company in comparison to total capital employed would also be relevant to
determine whether the part of the business constitutes a substantial part.
In this case, 42% of the total assets of the lending company were deployed by it by way
of loans and advances. Further, if the income earned by way of interest is excluded, the
other business had resulted in a net loss. These factors were considered in concluding
that lending of money was a substantial part of the business of the company.
Since lending of money was a substantial part of the business of the lending company,
the money given by it by way of advance or loan to the assessee could not be regarded
as a dividend, as it had to be excluded from the definition of "dividend" by virtue of the
specific exclusion in section 2(22).
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2. Can the loan or advance given to a shareholder by the company, in return of an
advantage conferred on the company by the shareholder, be deemed as dividend
under section 2(22)(e) in the hands of the shareholder?
Pradip Kumar Malhotra v. CIT (2011) 338 ITR 538 (Cal.)
In the present case, the assessee, a shareholder holding substantial voting power in the
company, permitted his property to be mortgaged to the bank for enabling the company
to take the benefit of loan. The shareholder requested the company to release the
property from the mortgage. On failing to do so and for retaining the benefit of loan
availed from bank, the company gave advance to the assessee, which was authorized by
a resolution passed by its Board of Directors.
The issue under consideration is whether the advance given by the company to the
assessee-shareholder by way of security deposit for keeping his property as mortgage on
behalf of company to reap the benefit of loan, can be treated as deemed dividend within
the meaning of section 2(22)(e).
In the above case, the Calcutta High Court observed that, the phrase "by way of advance
or loan" appearing in section 2(22)(e) must be construed to mean those advances or
loans which a share holder enjoys simply on account of being a person who is the
beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether
with or without a right to participate in profits) holding not less than 10% of the voting
power. In case such loan or advance is given to such shareholder as a consequence of
any further consideration which is beneficial to the company received from such a
shareholder, such advance or loan cannot be said to a deemed dividend within the
meaning of the Act. Thus, gratuitous loan or advance given by a company to a share
holder, who is the beneficial owner of shares holding not less than 10% of the voting
power, would come within the purview of section 2(22)(e) but not to the cases where the
loan or advance is given in return to an advantage conferred upon the company by such
shareholder.
In the present case, the advance given to the assessee by the company was not in the
nature of a gratuitous advance; instead it was given to protect the interest of the
company. Therefore, the said advance cannot be treated as deemed dividend in the
hands of the shareholder under section 2(22)(e).
3. Would the provisions of deemed dividend under section 2(22)(e) be attracted in
respect of financial transactions entered into in the normal course of business?
CIT v. Ambassador Travels (P) Ltd. (2009) 318 ITR 376 (Del.)
Under section 2(22)(e), loans and advances made out of accumulated profits of a
company in which public are not substantially interested to a beneficial owner of shares
holding not less than 10% of the voting power or to a concern in which such shareholder
has substantial interest is deemed as dividend. However, this provision would not apply
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in the case of advance made in the course of the assessees business as a trading
transaction.
The assessee, a travel agency, has regular business dealings with two concerns in the
tourism industry dealing with holiday resorts. The High Court observed that the assessee
was involved in booking of resorts for the customers of these companies and entered into
normal business transactions as a part of its day-to-day business activities. The High
Court held that such financial transactions cannot under any circumstances be treated as
loans or advances received by the assessee from these concerns for the purpose of
application of section 2(22)(e).
4. Can winnings of prize money on unsold lottery tickets held by the distributor of
lottery tickets be assessed as business income and be subject to normal rates of
tax instead of the rates prescribed under section 115BB?
CIT v. Manjoo and Co. (2011) 335 ITR 527 (Kerala)
On the above issue, the Kerala High Court observed that winnings from lottery is
included in the definition of income by virtue of section 2(24)(ix). Further, in practice, all
prizes from unsold tickets of the lotteries shall be the property of the organising agent.
Similarly, all unclaimed prizes shall also be the property of the organising agent and shall
be refunded to the organising agent.
The High Court contended that the receipt of winnings from lottery by the distributor was
not on account of any physical or intellectual effort made by him and therefore cannot be
said to be "income earned" by him in business. The said view was taken on the basis that
the unsold lottery tickets cease to be stock-in-trade of the distributor because, after the
draw, those tickets are unsaleable and have no value except waste paper value and the
distributor will get nothing on sale of the same except any prize winning ticket if held by
him, which, if produced will entitle him for the prize money. Hence, the receipt of the
prize money is not in his capacity as a lottery distributor but as a holder of the lottery
ticket which won the prize. The Lottery Department also does not treat it as business
income received by the distributor but instead treats it as prize money paid on which tax
is deducted at source.
Further, winnings from lotteries are assessable under the special provisions of section
115BB, irrespective of the head under which such income falls. Therefore, even if the
argument of the assessee is accepted and the winnings from lottery is taken to be
received by him in the course of his business and as such assessable as business
income, the specific provision contained in section 115BB, namely, the special rate of tax
i.e. 30% would apply.
Therefore, the High Court held that the rate of 30% prescribed under section 115BB is
applicable in respect of winnings from lottery received by the distributor.

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8
Set-Off And Carry Forward Of Losses
1. In order to determine whether Explanation to section 73 is applicable in a particular
case, is it necessary to first determine the gross total income of the assessee
computed as per normal provisions of the Act?
CIT v. Darshan Securities (P.) Ltd. (2012) 341 ITR 556 (Bom.)
On this issue, the Bombay High Court observed that, in order to apply the exemption
carved out in the bracketed portion of the Explanation to section 73, the gross total
income (GTI) of a company is to be first computed as per the normal provisions of the Act
and thereafter, it needs to be determined whether the GTI of the assessee consists of
mainly income under the head interest on securities, income from house property,
capital gains and income from other sources.
In case the gross total income of an assessee consists of loss in share trading and
service charges taxable under the head Profit and gains of business or profession, then
such loss should be first set-off against such income as given in section 70 and then the
composition of GTI has to be determined. In case such loss is completely set-off against
the income, and the assessee has income predominantly under heads mentioned in the
exception carved out in the bracketed portion of the said Explanation, such loss will not
be treated as a speculation loss for applicability of section 73(1).



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9
DEDUCTIONS FROMGROSS TOTAL INCOME
1. Can unabsorbed depreciation of a business of an industrial undertaking eligible for
deduction under section 80-IA be set off against income of another non-eligible
business of the assessee?
CIT v. Swarnagiri Wire Insulations Pvt. Ltd. (2012) 349 ITR 245 (Kar.)
The assessee was in the business of manufacture of wires. It installed a windmill for
power generation. The assessee claimed depreciation on windmill against income from
power generation, which was eligible for deduction under section 80-IA. The balance
depreciation was set off against the profits from manufacturing of wires, being a non-
eligible business.
The Assessing Officer contended that depreciation relating to a business eligible for
deduction under section 80-IA cannot be set off against non-eligible business income.
Therefore, unabsorbed depreciation was to be carried forward to the subsequent year to
be set off against the eligible business income of the assessee of that year.
The Tribunal observed that the balance depreciation of the eligible business is required
to be carried forward for set-off against eligible business income of the next year while
determining the profits eligible for deduction under section 80-IA in that year. However,
the Tribunal noted that section 80-IA is a beneficial section permitting certain deduction
in respect of certain income under Chapter VI-A. A provision granting tax incentive for
economic growth should be construed liberally and any restriction placed should also be
construed in a reasonable and purposive manner to advance the objects of the provision.
The High Court observed that it is a generally accepted principle that deeming provision
of a particular section cannot be breathed into another section. Therefore, the deeming
provision contained in section 80-IA(5) cannot override the provisions of section 70(1).
The assessee had incurred loss in eligible business after claiming depreciation. Hence,
section 80-IA becomes insignificant, since there is no profit from which this deduction can
be claimed. It is thereafter that section 70(1) comes into play, whereby the assessee is
entitled to set off the losses from one source against income from another source under
the same head of income. The Court, therefore, held that the assessee was entitled to
the benefit of set off of loss of eligible business against the profits of non-eligible
business. However, once set-off is allowed under section 70(1) against income from
another source under the same head, a deduction to such extent is not possible in any
subsequent assessment year i.e., the loss (arising on account of balance depreciation of
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eligible business) so set-off under section 70(1) has to be first deducted while computing
profits eligible for deduction under section 80-IA in the subsequent year.
Note The crux of the above decision can be explained with a simple example. Let us
consider a company, X Ltd., having two units, Unit A and Unit B. If Unit A engaged in eligible
business (say, power generation) has a profit of ` 100 lacs in A.Y.2014-15, before claiming
depreciation of ` 120 lacs and Unit B engaged in non-eligible business (say, manufacture of
wires) has a profit of ` 70 lacs, then, as per the above decision, the loss of ` 20 lacs
(representing balance depreciation not set-off) pertaining to Unit A can be set-off against
profit of ` 70 lacs of Unit B carrying on non-eligible business. Therefore, the net profit of ` 50
lacs would be taxable in the A.Y.2014-15. If in the next year, i.e. A.Y.2015-16, the net profits
of Unit A and Unit B are ` 200 lacs and ` 80 lacs, respectively, then the eligible deduction
under section 80-IA for that year would be ` 180 lacs (i.e., ` 200 lacs minus ` 20 lacs, being
loss (representing balance depreciation) set-off in the A.Y.2014-15 against other income).
2. Can freight subsidy arising out of the scheme of Central Government be treated as
a profit derived fromthe business for the purposes of section 80-IA?
CIT v. Kiran Enterprises (2010) 327 ITR 520 (HP)
Section 80-IA provides for deduction in respect of profits and gains derived from eligible
business. In this case, the Central Government had framed a scheme whereby
freight/transport subsidy was provided to industries set up in remote areas where rail
facilities were not available and some percentage of the transport expenses incurred to
transport raw material/finished goods to or from the factory was subsidized.
The issue under consideration is whether such freight subsidy arising out of the scheme
of Central Government can be treated as a profit derived from the business for the
purposes of section 80-IA.
On appeal, the High Court held that the transport subsidy received by the assessee was
not a profit derived from business since it was not an operational profit. The source was
not the business of the assessee but the scheme of Central Government. The words
derived from are narrower in connotation as compared to the words attributable to.
Therefore, the freight subsidy cannot be treated as profits derived from the business for
the purposes of section 80-IA.
3. Can an assessee, engaged in the business of developing a housing project, be
denied deduction under section 80-IB(10) on the ground that the ownership of land
has not yet been transferred to the assessee and the approval to build the housing
project has been taken in the name of the land owner, though the assessee
assumes the entire risks and rewards of the project?
CIT v. Radhe Developers (2012) 341 ITR 403 (Guj.)
The assessee is a land developer and derives its income from the business of developing
and building of housing project. To execute a housing project, the assessee entered into
a development agreement with the owner of a land. On the same day, the land owner
entered into an agreement to sell the said land to the assessee. The assessee claimed
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deduction under section 80-IB(10) contending that the income was derived by an
undertaking developing and building a housing project approved by the local authority.
However, the Assessing Officer rejected the assessees claim for deduction under
section 80-IB(10) on the ground that the assessee was not the owner of the land on
which the housing project was developed and also the approval by the local authority to
commence such housing project was not in the name of the assessee. The Department
was of the view that the assessee had merely acted as an agent or contractor for the
land owner for development of housing project and therefore, it would be taken as a
works contractor and hence, would not be eligible for the deduction applying Explanation
to section 80-IB(10).
The assessee contended that the ownership of land is not a pre-requisite to claim
deduction under section 80-IB(10). The assessee further argued that the execution of a
housing project cannot be taken to be a works contract in this case since the assessee
had the full authority to take all the decisions and had assumed the full risk of the failure
or success of the housing project. The profit or loss derived from the project was of the
assessee and the owner of the land would only receive a part of sale consideration in lieu
of which he had granted development permission to the assessee. The land owner was
not exposed to any risk in respect of the housing project. Therefore, Explanation to
section 80-IB(10) is not applicable and deduction cannot be denied on that basis.
Considering the above, the Gujarat High Court held that, on perusal of the provisions of
section 80-IB(10), it is clear that deduction of 100% of profit is provided to an
undertaking deriving profit from the business of developing and building housing projects
which is approved by the local authority before the specified date, subject to certain other
conditions mentioned therein. The said provisions nowhere require that only those
developers who themselves own the land would be entitled to deduction under section
80-IB(10). This condition cannot be read for the applicability of section 80-IB(10). The
issue is whether the contract is a contract of work or a contract of sale. As the land
owner entered into an agreement to sell the land to the assessee, it would constitute a
contract for sale and not a works contract. The owner of the land had, in part
performance of the agreement to sell, given the possession thereof to the assessee and
the assessee had carried out the construction work for development of the housing
project. Therefore, as per provisions of section 2(47) read with section 53A of the
Transfer of Property Act, 1882, it can be construed that the land, for the purpose of the
Income-tax Act, 1961, is deemed to have been transferred to the assessee, though the
title of the land has not yet been transferred to the assessee. The ownership has been
understood differently in different contexts. Hence, for the purpose of deduction under
section 80-IB(10), the assessee had satisfied the condition of ownership, even if it was
necessary. Therefore, the assessee shall be deemed to be the owner of the land.

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Hence, in the present case, as per the provisions of section 80-IB(10), deduction shall be
provided to the assessee engaged in the business of developing and building housing
projects, in case it satisfies the conditions mentioned therein even if the ownership of the
land has not yet been transferred to the assessee and the approval for such housing
project is obtained in the name of the original land owner.
4. In a case where an additional building was constructed on a plot of land and
approval for the same is obtained in the year 2002, can deduction under section 80-
IB(10) be denied in respect of the said building on the contention that it was an
extension of an earlier project for construction of four buildings, in respect of
which approval was obtained before 1.10.1998?
CIT v. Vandana Properties (2012) 206 Taxman 584 (Bom.)
In this case, the assessee-firm, engaged in business of construction and development of
housing projects, constructed buildings A, B, C and D prior to 1.10.1998 on a plot
measuring 2.36 acres, in respect of which approval was obtained prior to 1.10.1998. After
taking permission of the State Government in the year 2001, the assessee-firm has
constructed an additional building E with other residential units, in respect of which
approval was obtained in the year 2002. The assessee claimed deduction under section
80-IB in respect of building E.
However, the Assessing Officer disallowed the claim for deduction on the ground that
approval for building E, granted in the year 2002, was an extension of approvals granted
earlier for other buildings and, hence, the project commenced prior to 1.10.1998 which
disentitled the project from claiming deduction under section 80-IB. The Assessing
Officer, further, making reference to the conditions laid down under section 80-IB(10)(b),
contended that project should be on the size of a plot of land of minimum one acre.
However, in this case, even if the plot is proportionately divided between five buildings,
the land pertaining to building E would be less than one acre, thus, violating the
condition mentioned above for claiming deduction under section 80-IB(10).
The Bombay High Court observed that construction of building E constitutes an
independent housing project and therefore, the date prior to 1.10.1998 applicable to the
other buildings in the housing project could not be applied to building E. It is only in the
year 2001 that the status of the land was converted from surplus vacant land by the State
Government and consequently, the building plan for construction of building E was
submitted and the same was approved by the local authority in the year 2002.
Further, it was observed that section 80-IB specifies the size of the plot of land of
minimum 1 acre but not the size of the housing project. It is immaterial as to whether any
other housing projects are existing on the said plot of land or not. Hence, the objection
raised by the Assessing Officer that if plot was proportionately divided between 5
buildings, the land pertaining to building E would be less than 1 acre was not correct.
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Therefore, the High Court held that the assessee was entitled to deduction under section
80-IB(10) in respect of building E.
5. Can an industrial undertaking engaged in manufacturing or producing articles or
things treat the persons employed by it through agency (including contractors) as
workers to qualify for claimof deduction under section 80-IB?
CIT v. J yoti Plastic Works Private Limited (2011) 339 ITR 491 (Bom.)
One of the conditions to be fulfilled by an industrial undertaking engaged in
manufacturing or producing articles or things to qualify for claim of deduction under
section 80-IB is that it should employ ten or more workers in a manufacturing process
carried on with the aid of power or twenty or more workers in a manufacturing process
carried on without the aid of power. The issue under consideration in this case is whether
the persons employed by such industrial undertaking through agency (including
contractors) can be treated as workers for fulfillment of the above condition.
In this case, the Assessing Officer rejected the assessees claim for deduction under
section 80-IB on the grounds that -
(1) the assessee was not a manufacturer as the goods were not manufactured at the
factory premises of the assessee but at the factory premises of the job workers; and
(2) the total number of permanent employees employed in the factory being less than
ten, the assessee had not fulfilled the condition stipulated in section 80-IB(2)(iv).
The Commissioner (Appeals) allowed the claim of the assessee and the Tribunal upheld
the order of the Commissioner (Appeals).
The High Court observed that the Tribunal had found on the basis of the material on
record that manufacturing activity was carried out at the factory premises of the
assessee. Though the workers employed by the assessee directly were less than ten, it
was not in dispute that the total number of workers employed by the assessee directly or
hired through a contractor for carrying on the manufacturing activity exceeded ten.
The expression "worker" is neither defined under section 2 of the Income-tax Act, 1961,
nor under section 80-IB(2)(iv). Therefore, it would be reasonable to hold that the
expression "worker" in section 80-IB(2)(iv) is referable to the persons employed by the
assessee directly or by or through any agency (including a contractor) in the
manufacturing activity carried on by the assessee. The employment of ten or more
workers is what is relevant and not the mode and the manner in which the workers are
employed by the assessee.
The High Court, therefore, held that the Tribunal was justified in holding that the
condition of section 80-IB(2)(iv) had been fulfilled and therefore, the deduction under
section 80-IB is allowable.
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6. Can an assessee not claiming deduction under section 80-IB in the initial years
claimthe said deduction for the remaining years during the period of eligibility, if
the conditions are satisfied?
Praveen Soni v. CIT (2011) 333 ITR 324 (Delhi)
On the above issue, the Delhi High Court held that the provisions of section 80-IB nowhere
stipulated a condition that the claim for deduction under this section had to be made from
the first year of qualification of deduction failing which the claim will not be allowed in the
remaining years of eligibility. Therefore, the deduction under section 80-IB should be
allowed to the assessee for the remaining years up to the period for which his entitlement
would accrue, provided the conditions mentioned under section 80-IB are fulfilled.
7. Would the procurements of parts and assembling themto make windmill fall within
the meaning of manufacture and production to be entitled to deduction under
section 80-IB?
CIT v. Chiranjjeevi Wind Energy Ltd. (2011) 333 ITR 192 (Mad.)
The Supreme Court, in India Cine Agencies v. CIT(2009) 308 ITR 98, laid down that the
test to determine whether a particular activity amounts to "manufacture" or not is whether
new and different goods emerge having distinctive name, use and character. Further, the
Supreme Court, in CIT v. Sesa Goa Ltd. (2004) 271 ITR 331, observed that the word
"production" or "produce" when used in comparison with the word "manufacture" means
bringing into existence new goods by a process, which may or may not amount to
manufacture. It also takes in all the by-products, intermediate products and residual
products, which emerge in the course of manufacture of goods.
In this case, Madras High Court, applying the above rulings of the Apex Court, observed that
the different parts procured by the assessee could not be treated as a windmill individually.
Those different parts had distinctive names and only when assembled together, they got
transformed into an ultimate product which was commercially known as a "windmill". Thus,
such an activity carried on by the assessee would amount to "manufacture" as well as
"production" of a thing or article to qualify for deduction under section 80-IB.
Note - The definition of manufacture has been incorporated in section 2(29BA) by the
Finance (No. 2) Act, 2009 w.e.f. from01.04.2009, and it means, inter alia, a change in a
non-living physical object or article or thing resulting in transformation of the object or
article or thing in to a new and distinct object or article or thing having a different name,
character and use. Assembling of windmill at factory and putting themat site of customer
apparently satisfies this definition of manufacture also.
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8. Would grant of transport subsidy, interest subsidy and refund of excise duty
qualify
for deduction under section 80-IB?
CIT v. Meghalaya Steels Ltd. (2011) 332 ITR 91 (Gauhati)
The Supreme Court, in Liberty India v. CIT [2009] 317 ITR 218, observed that section 80-
IB provides for deduction in respect of profits and gains derived from the business of
the assessee and accordingly, the Parliament intended to cover sources of profits and
gains not beyond the first degree. There should be a direct nexus between the
generation of profits and gains and the source of profits and gains, the latter being
directly relatable to the business of the assessee. Any other source, not falling within the
first degree, can only be considered as ancillary to the business of the assessee.
In this case, the High Court observed that the transport and interest subsidies were revenue
receipts which were granted after setting up of the new industries and after commencement
of production. The transport subsidy would have the effect of reducing the inward and
outward transport costs for the purposes of determining the cost of production as well as for
sales. However, the subsidy had no direct nexus with the profits or gains derived by the
assessee from its industrial activity and the benefit to the assessee was only ancillary to its
industrial activity. The subsidies were not directly relatable to the industrial activity of the
assessee, and hence they did not fall within the first degree contemplated by the Act.
Therefore, the subsidies could not be taken into account for purposes of deduction under
section 80-IB.
However, the payment of Central excise duty had a direct nexus with the manufacturing
activity and similarly, the refund of the Central excise duty also had a direct nexus with
the manufacturing activity, being a profit-linked incentive, since payment of the Central
excise duty would not arise in the absence of any industrial activity. Therefore, the refund
of excise duty had to be taken into account for purposes of section 80-IB.
Note - Similar ruling was pronounced by the Himachal Pradesh High Court in CIT v.
Gheria Oil Gramudyog Workers Welfare Association (2011) 330 ITR 117, wherein it was
held that interest subsidy received fromthe State Government cannot be treated as
profit derived fromindustrial undertakingand hence was not eligible for deduction under
section 80-IB.
9. Does income derived fromsale of export incentive qualify for deduction under
section 80-IB?
CIT v. J aswand Sons (2010) 328 ITR 442 (P&H)
On this issue, the High Court held that income derived from sale of export incentive
cannot be said to be income derived from the industrial undertaking and therefore, such
income is not eligible for deduction under section 80-IB.
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10. Does the period of exemption under section 80-IB commence fromthe year of trial
production or year of commercial production? Would it make a difference if sale
was effected fromout of the trial production?
CIT v. Nestor Pharmaceuticals Ltd. / Sidwal Refrigerations Ind Ltd. v. DCIT (2010)
322 ITR 631 (Delhi)
In this case, the assessee had started trial production in March 1998 whereas commercial
production started only in April, 1998. Therefore, the assessee claimed deduction under
section 80-IB for the assessment years 1999-2000 to 2003-04, whereas the Assessing
Officer denied deduction for A.Y.2003-04 on the ground that the five year period would be
reckoned from A.Y.1998-99, since the trial production began in March, 1998.
The Tribunal observed that not only the trial production had started in March 1998 but
there was in fact sale of one water cooler and air-conditioner in the month of March 1998.
The explanation of the assessee was that this was done to file the registration under the
Excise Act and Sales-tax Act.
The High Court observed that with mere trial production, the manufacture for the purpose of
marketing the goods had not started which starts only with commercial production, namely,
when the final product to the satisfaction of the manufacturer has been brought into
existence and is fit for marketing. However, in this case, since the assessee had effected
sale in March 1998, it had crossed the stage of trial production and the final saleable
product had been manufactured and sold. The quantum of commercial sale and the
purpose of sale (namely, to obtain registration of excise / sales-tax) is not material. With the
sale of those articles, marketable quality was established. Therefore, the conditions
stipulated in section 80-IB were fulfilled with the commercial sale of the two items in that
assessment year, and hence the five year period has to be reckoned from A.Y.1998-99.
Note Though this decision was in relation to deduction under section 80-IA, as it stood
prior to its substitution by the Finance Act, 1999 w.e.f. 1.4.2000, presently, it is relevant
in the context of section 80-IB.
11. Can the Duty Entitlement Passbook Scheme (DEPB) benefits and Duty Drawback
be treated as profit derived fromthe business of the industrial undertaking to be
eligible for deduction under section 80-IB?
Liberty India v. CIT (2009) 317 ITR 218 (SC)
On this issue, the Supreme Court observed that DEPB / Duty drawback are incentives
which flow from the schemes framed by the Central Government or from section 75 of the
Customs Act, 1962. Section 80-IB provides for the allowing of deduction in respect of
profits and gains derived from eligible business.
However, incentive profits are not profits derived from eligible business under section 80-
IB. They belong to the category of ancillary profits of such undertaking. Profits derived by
way of incentives such as DEPB/Duty drawback cannot be credited against the cost of
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manufacture of goods debited in the profit and loss account and they do not fall within the
expression "profits derived from industrial undertaking" under section 80-IB. Hence, Duty
drawback receipts and DEPB benefits do not form part of the profits derived from the
eligible business for the purpose of deduction under section 80-IB.
12. Does standing charges paid by the client for failure to purchase the minimum
agreed quantity, qualify for deduction under section 80-IC?
Pine Packaging (P.) Ltd. v. CIT (2012) 209 Taxman 74 (Delhi)
On this issue, the Delhi High Court held that the standing charges received by an
assessee from a client on failure to place the minimum amount of purchase order as per
the agreement, cannot be said to be profit or gains derived by an eligible enterprise from
its manufacturing or production activities.
The said standing charges are in the nature of compensation for non-utilization or under
utilization of plant and machinery due to lack of orders. The said charges were paid to
compensate the assessee for failure to produce and market its products. Therefore, such
standing charges are not eligible for deduction under section 80-IC.

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10
ASSESSMENT OF VARIOUS ENTITIES
1. Under which head of income is rental income fromplinths inherited by individual
co-owners fromtheir ancestors taxable - Income fromhouse property or Income
fromother sources? Further, would such income be assessable in the hands of
the individual co-owners or in the hands of the Association of Persons?
Sudhir Nagpal v. Income-tax Officer (2012) 349 ITR 0636 (P & H)
As regards the head of income under which rental income from plinths is assessable, the
High Court referred to the Division Bench judgment in Gowardhan Das and Sons v. CIT
(2007) 288 ITR 481, wherein it was observed that it is the income from property
consisting of any building or land appurtenant thereto which is assessed under section 22
and not the income from renting out of open land or some kutcha plinth only.
Therefore, the Court held that the income from letting out the plinths is assessable under
section 56 as Income from other sources and not under the head Income from house
property.
The second issue relates to whether such rental income is assessable in the hands of the
individual co-owners or in the hands of the Association of Persons. To appreciate this
issue, it is necessary to understand the complete facts of the case.
In the present case, five persons of the Nagpal family were co-owners of the agricultural
land Nagpal farms inherited from their forefathers. The co-owners executed a power of
attorney in favour of Mr. Sudhir Nagpal, one of the co-owners, appointing him to construct
plinths on the agricultural land and to further lease out such open plinths to any party on
their behalf. The co-owners had, therefore, not purchased the land for the said purpose but
had inherited the land. They were owners not in their joint capacity but in their individual
capacity with a definite/defined proportion of share. The co-owners filed their individual
returns of income disclosing their rental income and also paid tax on such income.
The Assessing Officer, however, issued notice under section 148 to all the co-owners of
the property in the name of Mr. Sudhir Nagpal on the ground that there is an association
of persons formed by the co-owners and therefore, income had escaped assessment in
the hands of association of persons.
The assessee contended that since no land was purchased, therefore, the status of the
co-owners cannot be treated as association of persons.
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The Assessing Officer did not agree with the contention of the assessee and assessed the
entire rental income from the plinths as income from other sources in the hands of the
association of persons and determined the tax payable by applying section 167B(2). The
Commissioner (Appeals) and the Tribunal confirmed the action of the Assessing Officer.
On appeal, the High Court observed that in order to assess individuals as association of
persons, the individual co-owners should have joined their resources and thereafter,
acquired property in the name of association of persons and the property should have been
commonly managed. It is only in such a case that income could be assessed in the hands
of association of persons. Mere accruing of income jointly to more persons than one
would not constitute them an association of persons in respect of such income. In other
words, unless the associates have done some acts or performed some operations together,
which have helped to produce the income in question, they cannot be termed as an
association of persons. Unless the members combine or join in a common purpose, it
cannot be held that they have formed themselves into an association of persons.
In this case, the co-owners had inherited the property from their ancestors and there was
nothing to show that they had acted as an association of persons. Thus, the High Court
held that the rental income from the plinths has to be assessed in the status of individual
and not association of persons and consequently, section 167B would not be attracted in
this case.
2. Would interest earned on fixed deposits made by a social club with its corporate
members satisfy the principle of mutuality to escape taxability?
CIT v. Secunderabad Club Picket (2012) 340 ITR 121 (A.P.)
The assessee is a social and recreational club. It is a mutual association and a non-profit
making concern. The assessee was in receipt of monthly subscriptions,
admission/entrance fee and payments made by its members for use of club facilities. It
earned interest from the fixed deposit made by it with certain banks and financial
institutions, which were also its corporate members. The assessee filed its return
claiming this interest to be exempt on the contention that the interest was earned from its
members and, therefore, the same was not taxable. The assessee further contended that
if a person carries on an activity, which is also trade, in such a way that they and the
customers are the same persons, no profits are yielded by such trade for tax purpose
and therefore, principle of mutuality would apply.
However, in this case, the Assessing Officer denied such exemption on the ground that
neither the assessee deposited the amounts with the banks and financial institutions,
treating them as corporate members, nor the banks and financial institutions accepted
the same in the capacity of members of the club. The banks and the financial institutions
treated the club at par with their other customers and offered them the same interest as
offered to the general public.
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In the present case, the Andhra Pradesh High Court following the judgement of the
Supreme Court in Bankipur Club Ltd (1997) 226 ITR 97, concluded that certain factors
need to be considered to arrive at a conclusion as to what point the relationship of
mutuality ends and that of trading begins. If the object of the assessee claiming to be a
mutual concern is to carry on a business and the same consideration is realized both
from the members and from non-members by giving similar facilities to them, then, the
resultant surplus would be an income liable to tax.
The High Court, considering, inter alia, the above mentioned facts, held that the principle
of mutuality ends the moment the club deposits the amount with its corporate members,
being banks and financial institutions, with the sole aim of earning interest on the
deposits. Also, the corporate members, i.e the banks and financial institutions, have
treated the club as a regular customer, accepting deposits in the normal course of
business. There is nothing to show that the interest on fixed deposits have been provided
as a facility to the club. The social relationship and social activities of the club have
nothing to do with its deposits with corporate members.
Therefore, the said interest income is not exempt on the principle of mutuality.
3. Would the interest earned on surplus funds of a club deposited with institutional
members satisfy the principle of mutuality to escape taxability?
Madras Gymkhana Club v. DCIT (2010) 328 ITR 348 (Mad.)
The assessee-club providing facilities like gym, library, etc, to its members earned
interest from fixed deposits which it had made by investment of its surplus funds with its
corporate members.
The High Court held that interest earned from investment of surplus funds in the form of
fixed deposits with institutional members does not satisfy the principle of mutuality and
hence cannot be claimed as exempt on this ground. The interest earned is, therefore,
taxable.
4. Can transfer fees received by a co-operative housing society fromits incoming and
outgoing members be exempt on the ground of principle of mutuality?
Sind Co-operative Housing Society v. ITO (2009) 317 ITR 47 (Bom)
On this issue, the High Court observed that under the bye-laws of the society, charging
of transfer fees had no element of trading or commerciality. Both the incoming and
outgoing members have to contribute to the common fund of the assessee. The amount
paid was to be exclusively used for the benefit of the members as a class.
The High Court, therefore, held that transfer fees received by a co-operative housing
society, whether from outgoing or from incoming members, is not liable to tax on the
ground of principle of mutuality since the predominant activity of such co-operative
society is maintenance of property of the society and there is no taint of commerciality,
trade or business.
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Further, section 28(iii), which provides that income derived by a trade, professional or
similar association from specific services performed for its members shall be treated as
business income, can have no application since the co-operative housing society is not a
trade or professional association.
5. Would non-resident match referees and umpires in the games played in India fall
within the meaning of sportsmen to attract taxability under the provisions of
section 115BBA, and consequently attract the TDS provisions under section 194E
in the hands of the payer?
Indcomv. Commissioner of Income-tax (TDS) (2011) 335 ITR 485 (Calcutta)
On this issue, the Calcutta High Court observed that, in order to attact the provisions of the
section 194E, the person should be a non-resident sportsperson or non-resident sports
association or institution whose income is taxable as per the provisions of section 115BBA.
The umpires and the match referees can be described as professionals or technical
persons who render professional or technical services, but they cannot be said to be
either non-resident sportsmen (including an athlete) or non-resident sports association or
institution so as to attract the provisions of section 115BBA and consequently, the
provisions of tax deduction at source under section 194E are also not attracted in this
case. Though for the purpose of section 194J, match referees and umpires are
considered as professionals, the tax deduction provisions thereunder are attracted only
in case where the deductee is a resident individual, which is not so in the present case.
Therefore, although the payments made to non-resident umpires and the match referees are
income which has accrued and arisen in India, the same are not taxable under the
provisions of section 115BBA and thus, the assessee is not liable to deduct tax under section
194E.
Note - It may be noted that since income has accrued and arisen in India to the non-
resident umpires and match referees, the TDS provisions under section 195 would be
attracted and tax would be deductible at the rates in force.
6. In a case where the partnership deed does not specify the remuneration payable to
each individual working partner but lays down the manner of fixing the
remuneration, would the assessee-firmbe entitled to deduction in respect of
remuneration paid to partners?
CIT v. Anil Hardware Store (2010) 323 ITR 368 (HP)
The partnership deed of the assessee firm provided that in case the book profits of the
firm are up to ` 75,000, then the partners would be entitled to remuneration up to
` 50,000 or 90 per cent of the book profits, whichever is more. In respect of the next
` 75,000, it is 60 per cent and for the balance book profits, it is 40 per cent. Thereafter, it
is further clarified that the book profits shall be computed as defined in section 40(b) of
the Income-tax Act, 1961, or any other provision of law as may be applicable for the
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assessment of the partnership firm. It has also been clarified that in case there is any
loss in a particular year, the partners shall not be entitled to any remuneration. Clause 7
of the partnership deed laid down that the remuneration payable to the partners should
be credited to the respective accounts at the time of closing the accounting year and
clause 5 stated that the partners shall be entitled to equal remuneration.
The High Court held that the manner of fixing the remuneration of the partners has been
specified in the partnership deed. In a given year, the partners may decide to invest
certain amounts of the profits into other ventures and receive less remuneration than that
which is permissible under the partnership deed, but there is nothing which debars them
from claiming the maximum amount of remuneration payable in terms of the partnership
deed. The method of remuneration having been laid down, the assessee-firm is entitled
to deduct the remuneration paid to the partners under section 40(b)(v).
Note:
(1) Payment of remuneration to working partners is allowed as deduction if it is authorized
by the partnership deed and is subject to the overall ceiling limits specified in section
40(b)(v). The limits for partners remuneration under section 40(b)(v) has revised
upwards and the differential limits for partners remuneration paid by professional firms
and non-professional firms have been removed. On the first ` 3 lakh of book profit or in
case of loss, the limit would be the higher of ` 1,50,000 or 90%of book profit and on the
balance of book profit, the limit would be 60%.
(2) The CBDT had, vide Circular No. 739 dated 25-3-1996, clarified that no deduction
under section 40(b)(v) will be admissible unless the partnership deed either
specifies the amount of remuneration payable to each individual working partner or
lays down the manner of quantifying such remuneration.
In this case, since the partnership deed lays down the manner of quantifying such
remuneration, the same would be allowed as deduction subject to the limits specified in
section 40(b)(v).
7. Can interest under sections 234B and 234C be levied where a company is assessed
on the basis of book profits under section 115JB?
J oint CIT v. Rolta India Ltd. (2011) 330 ITR 470 (SC)
On this issue, the Supreme Court observed that there is a specific provision in section
115JB(5) providing that all other provisions of the Income-tax Act, 1961 shall apply to
every assessee, being a company, mentioned in that section. Section 115JB is a self-
contained code pertaining to MAT, and by virtue of sub-section (5) thereof, the liability for
payment of advance tax would be attracted. Therefore, if a company defaults in payment
of advance tax in respect of tax payable under section 115JB, it would be liable to pay
interest under sections 234B and 234C.
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Therefore, interest under sections 234B and 234C shall be payable on failure to pay
advance tax in respect of tax payable under section 115JB.
Note According to section 207, tax shall be payable in advance during any financial
year, in accordance with the provisions of sections 208 to 219 (both inclusive), in respect
of the total income of the assessee which would be chargeable to tax for the assessment
year immediately following that financial year. Under section 115J B(1), where the tax
payable on total income is less than 18.5% of book profit of a company, the book
profit would be deemed to be the total income and tax would be payable at the rate of
18.5%. Since in such cases, the book profit is deemed to be the total income, therefore,
as per the provisions of section 207, tax shall be payable in advance in respect of such
book profit (which is deemed to be the total income) also.
8. Can long-termcapital gain exempted by virtue of section 54EC be included in the
book profit computed under section 115JB?
N. J . J ose and Co. (P.) Ltd. v. ACIT (2010) 321 ITR 132 (Ker.)
The assessee claimed exemption under section 54E on the income from long-term
capital gains by depositing amounts in specified assets in terms of the said provision. In
the computation of book profit under section 115J, the assessee claimed exclusion of
capital gains because of exemption available on it by virtue of section 54E. The
Assessing Officer reckoned the book profits including long-term capital gains for the
purpose of assessment under section 115J.
The High Court held that once the Assessing Officer found that total income as computed
under the provisions of the Act was less than 30 per cent of the book profit, he had to
make the assessment under section 115J which does not provide for any deduction in
terms of section 54E. As long as long-term capital gains are part of the profits included in
the profit and loss account prepared in accordance with the provisions of Parts II and III
of Schedule VI to the Companies Act, 1956 (now, Statement of Profit and Loss prepared
in accordance with Part II of Schedule III to the Companies Act, 2013), capital gains
cannot be excluded unless provided under the Explanation to section 115J(1A).
Note It may be noted that the rationale of this decision would apply even where
minimumalternate tax (MAT) is attracted under section 115J B, on account of tax on total
income being less than 18.5% of book profits. If an assessee has claimed exemption
under section 54EC by investing in bonds of NHAI/ RECL, within the prescribed time, the
long termcapital gains so exempt would be taken into account for computing book profits
under section 115J B for levy of minimumalternate tax (MAT), since Explanation 1 to
section 115J B does not provide for such deduction. Further, it may be noted that even
the long termcapital gain exempt under section 10(38) is included for computation of
book profit under section 115J B.
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11
INCOME-TAX AUTHORITIES
1. Is the requirement to grant a reasonable opportunity of being heard, stipulated
under section 127(1), mandatory in nature?
Sahara Hospitality Ltd. v. CIT (2012) 211 Taxman 15 (Bom.)
On this issue, the Bombay High Court observed that the provisions of section 127(1)
stipulate, inter alia, that the income tax authority mentioned therein may give an
opportunity of being heard to the assessee, wherever it is possible to do so, and after
recording his reasons for doing so, transfer any case from one or more Assessing
Officers subordinate to him to any other Assessing Officer or officers subordinate to him.
The Bombay High Court held that the word may used in this section should be read as
shall and such income-tax authority has to mandatorily give a reasonable opportunity of
being heard to the assessee, wherever possible to do so, and thereafter, record the
reasons for taking any action under the said section. Reasonable opportunity can only
be dispensed with in a case where it is not possible to provide such opportunity. In such
a case also, the authority should record its reasons for making the transfer, even though
no opportunity was given to the assessee. The discretion of the authority is only to
consider as to what is a reasonable opportunity in a given case and whether it is possible
to give such an opportunity to the assessee or not. The authority cannot deny a
reasonable opportunity of being heard to the assessee, wherever it is possible to do so.
2. Does the Central Board of Direct Taxes (CBDT) have the power under section
119(2)(b) to condone the delay in filing return of income?
Lodhi Property Company Ltd. v. Under Secretary, (ITA-II), Department of Revenue
(2010) 323 ITR 441 (Del.)
The assessee filed his return of income, which contains a claim for carry forward of
losses, a day after the due date. The delay of one day in filing the return of income was
due to the fact that the assessee had not reached the Central Revenue Building on time
because he was sent from one room to the other and by the time he reached the room
where his return was to be accepted, it was already 6.00 p.m. and he was told that the
return would not be accepted because the counter had been closed. These
circumstances were recorded in the letter along with the return of income delivered to the
office of the Deputy Commissioner of Income-tax on the very next day. Later on, the
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CBDT, by a non-speaking order, rejected the request of the assessee for condonation of
delay in filing the return of income under section 119.
The issue under consideration is whether the CBDT has the power under section
119(2)(b) to condone the delay in filing return of income.
The High Court held that the Board has the power to condone the delay in case of a
return which was filed late and where a claim for carry forward of losses was made. The
delay was only one day and the assessee had shown sufficient reason for the delay of
one day in filing the return of income. If the delay is not condoned, it would cause
genuine hardship to the petitioner. Therefore, the Court held that the delay of one day in
filing of the return has to be condoned.
Note Section 119(2)(b) empowers the CBDT to authorise any income tax authority to
admit an application or claimfor any exemption, deduction, refund or any other relief
under the Act after the expiry of the period specified under the Act, to avoid genuine
hardship in any case or class of cases. The claimfor carry forward of loss in case of a
loss return is relatable to a claimarising under the category of any other relief available
under the Act. Therefore, the CBDT has the power to condone delay in filing of such loss
return due to genuine reasons.
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12
ASSESSMENT PROCEDURE
1. Can the unabsorbed depreciation be allowed to be carried forward in case the
return of income is not filed within the due date?
CIT v. Govind Nagar Sugar Ltd. (2011) 334 ITR 13 (Delhi)
On this issue, the Delhi High Court observed that, the provisions of section 80 and
section 139(3), requiring the return of income claiming loss to be filed within the due
date, applies to, inter alia, carry forward of business loss and not for the carrying forward
of unabsorbed depreciation. As per the provisions of section 32(2), the unabsorbed
depreciation becomes part of next years depreciation allowance and is allowed to be set-
off as per the provisions of the Income-tax Act, 1961, irrespective of whether the return of
earlier year was filed within due date or not.
Therefore, in the present case, the High Court held that the unabsorbed depreciation will
be allowed to be carried forward to subsequent year even though the return of income of
the current assessment year was not filed within the due date.
2. Can an assessee revise the particulars filed in the original return of income by
filing a revised statement of income?
Orissa Rural Housing Development Corpn. Ltd. v. ACIT (2012) 343 ITR 316 (Orissa)
On this issue, the Orissa High Court held that the assessee can make a fresh claim
before the Assessing Officer or make a change in the originally filed return of income
only by filing revised return of income under section 139(5). There is no provision under
the Income-tax Act, 1961 to enable an assessee to revise his income by filling a revised
statement of income. Therefore, filling of revised statement of income is of no value and
will not be considered by the Assessing Officer for assessment purposes.
The High Court, relying on the judgement of the Supreme Court in Goetze (India) Ltd. v.
CIT (2006) ITR 323, held that the Assessing Officer has no power to entertain a fresh
claim made by the assessee after filing of the original return except by way of filing a
revised return.
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3. Is a person having income belowtaxable limit, required to furnish his PAN to the
deductor as per the provisions of section 206AA, even though he is not required to
hold a PAN as per the provisions of section 139A?
Smt. A. Kowsalya Bai v. UOI (2012) 346 ITR 156 (Kar.)
As per the provisions of section 139A, inter alia, a person whose total income does not
exceed the maximum amount not chargeable to income-tax is not required to apply to the
Assessing Officer for the allotment of a permanent account number (PAN).
However, as per the provisions of section 206AA, notwithstanding anything contained in
any other provision of this Act, any person who is entitled to receive any sum or income
or amount on which tax is deductible under Chapter XVII-B, i.e., the deductee, shall
furnish his PAN to the deductor, otherwise tax shall be deducted as per the provisions
section 206AA, which is normally higher. It is mandatory for an assessee to furnish his
PAN, despite filing Form 15G as required under section 197A, to seek exemption from
deduction of tax.
The provisions of section 139A are contradictory to section 197A, due to the fact that
assessees whose income was less than the maximum amount not chargeable to
income-tax, were not required to hold PAN, whereas their declaration furnished under
section 197A was not accepted by the bank or financial institution unless PAN was
communicated as per the provisions of section 206AA. The provisions of section 206AA
creates inconvenience to small investors, who invest their savings from earnings as
security for their future, since, in the absence of PAN, tax was deducted at source at a
higher rate.
In order to avoid undue hardship caused to such persons, the Karnataka High Court, in
the present case, held that it may not be necessary for such persons whose income is
below the maximum amount not chargeable to income-tax to obtain PAN and in view of
the specific provision of section 139A, section 206AA is not applicable to such persons.
Therefore, the banking and financial institutions shall not insist upon such persons to
furnish PAN while filing declaration under section 197A. However, section 206AA would
continue to be applicable to persons whose income is above the maximum amount not
chargeable to income-tax.
4. Can the Assessing Officer reopen an assessment on the basis of merely a change
of opinion?
Aventis Pharma Ltd. v. ACIT (2010) 323 ITR 570 (Bom.)
The power to reopen an assessment is conditional on the formation of a reason to
believe that income chargeable to tax has escaped assessment. The existence of
tangible material is essential to safeguard against an arbitrary exercise of this power.
In this case, the High Court observed that there was no tangible material before the
Assessing Officer to hold that income had escaped assessment within the meaning of
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section 147 and the reasons recorded for reopening the assessment constituted a mere
change of opinion. Therefore, the reassessment was not valid.
5. Is it permissible under section 147 to reopen the assessment of the assessee on
the ground that income has escaped assessment, after a change of opinion as to a
loss being a speculative loss and not a normal business loss, consequent to a
mere re-look of accounts which were earlier furnished by the assessee during
assessment under section 143(3)?
ACIT v. ICICI Securities Primary Dealership Ltd. (2012) 348 ITR 299 (SC)
In the above case, the Assessing Officer had completed the assessment of assessee under
section 143(3) after taking into consideration the accounts furnished by assessee. After the
lapse of four years from relevant assessment year, the Assessing Officer had reopened the
assessment of assessee under section 147 on the ground that after re-look of the accounts
of the relevant previous year, it was noticed that the assessee company had incurred a loss
in trading in share, which was a speculative one. Therefore, such loss can only be set off
against speculative income. Consequently, the loss represents income which has escaped
assessment. Accordingly, the Assessing Officer came to a conclusion that income had
escaped assessment and passed an order under section 147.
The Supreme Court observed that the assessee had disclosed full details in the return of
income in the matter of its dealing in stocks and shares. There was no failure on the part
of assessee to disclose material facts as mentioned in proviso to section 147. Further,
there is nothing new which has come to the notice of the Assessing Officer. The accounts
had been furnished by the assessee when called upon. Therefore, re-opening of the
assessment by the Assessing Officer is clearly a change of opinion and therefore, the
order of re-opening the assessment is not valid.
6. Can the Assessing Officer reassess issues other than the issues in respect of
which proceedings were initiated under section 147 when the original reason to
believe on basis of which the notice was issued ceased to exist?
Ranbaxy Laboratories Ltd. v. CIT (2011) 336 ITR 136 (Delhi)
In the present case, the assessee company was engaged in the business of manufacture
and trading of pharmaceutical products. The Assessing Officer accepted the returned
income filed by the assessee but initiated reassessment proceedings under section 147
in respect of the addition to be made on account of club fees, gifts and presents and
provision for leave encashment. It was observed that the Assessing Officer had reason to
believe that income has escaped assessment due to claim and allowance of such
expenses and accordingly, he issued notice under section 148. However, after sufficient
enquiries were made during reassessment proceedings, the Assessing Officer came to
the conclusion that no additions are required to be made on account of these expenses.
Therefore, while completing the reassessment he did not make additions on account of
these items but instead made additions on the basis of other issues which were not the
original reason to believe for the issue of notice under section 148. The Assessing Officer
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made such additions on the basis of Explanation 3 to section 147 as per which the Assessing
Officer may assess the income which has escaped assessment and which comes to his
notice subsequently in the course of proceedings under section 147 even though the said
issue did not find mention in the reasons recorded in the notice issued under section 148.
The issue under consideration is whether the Assessing Officer can make an assessment
on the basis of an issue which came to his notice during the course of assessment,
where the issues, which originally formed the basis of issue of notice under section 148,
were dropped in its entirety.
As per section 147, the Assessing Officer may assess or reassess such income and also
any other income chargeable to tax which has escaped assessment and which comes to
his notice in the course of proceedings under this section. The Delhi High Court observed
that the words and also used in section 147 are of wide amplitude.
The correct interpretation of the Parliament would be to regard the words 'and also' as
being conjunctive and cumulative with and not in alternative to the first part of the
sentence, namely, the Assessing Officer may assess and reassess such income. It is
significant to note that Parliament has not used the word 'or' but has used the word 'and'
together and in conjuction with the word 'also'. The words 'such income' in the first part of
the sentence refer to the income chargeable to tax which has escaped assessment and
in respect of which the Assessing Officer has formed a reason to believe for issue of the
notice under section 148. Hence, the language used by the Parliament is indicative of the
position that the assessment or reassessment must be in respect of the income, in
respect of which the Assessing Officer has formed a reason to believe that the same has
escaped assessment and also in respect of any other income which comes to his notice
subsequently during the course of the proceedings as having escaped assessment.
If the income, the escapement of which was the basis of the formation of the reason to
believe is not assessed or reassessed, it would not be open to the Assessing Officer to
independently assess only that income which comes to his notice subsequently in the
course of the proceedings under the section as having escaped assessment. If he
intends to do so, a fresh notice under section 148 would be necessary.
7. In case of change of incumbent of an office, can the successor Assessing Officer
initiate reassessment proceedings on the ground of change of opinion in relation
to an issue which the predecessor Assessing Officer, who had framed the original
assessment, had already applied his mind and come to a conclusion?
H. K. Buildcon Ltd. v. Income-tax Officer (2011) 339 ITR 535 (Guj.)
On this issue, the Gujarat High Court referred to the ruling of the Apex Court in CIT v.
Kelvinator of India Ltd. (2010) 320 ITR 561, wherein it was held that the Assessing Officer
has the power only to reassess and not to review. Reassessment has to be based on
fulfillment of certain precondition and if the concept of change of opinion is removed, then, in
the garb of reopening the assessment, review would take place. The Apex Court further laid
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down that one must treat the concept of change of opinion as an in-built test to check abuse
of power by the Assessing Officer. The Apex Court referred to Circular No.549 dated
31.10.1989 explaining the amendment made by the Direct Tax Laws (Amendment) Act, 1989
with effect from 1.4.1989 to reintroduce the expression reason to believe, and concluded
that if the phrase reason to believe is omitted, the same would give arbitrary powers to the
Assessing Officer to reopen the past assessment on mere change of opinion and this is not
permissible even as per legislative intent.
The Gujarat High Court, applying the rationale of the Apex Court ruling, observed that in
the entire reasons recorded in this case, there was nothing on record to show that
income had escaped assessment in respect of which the successor Assessing Officer
received information subsequently, from an external source. The reasons recorded
themselves indicated that the successor Assessing Officer had merely recorded a
different opinion in relation to an issue to which the Assessing Officer, who had framed
the original assessment, had already applied his mind and come to a conclusion. The
notice of reassessment was, therefore, not valid.
8. Would the words shall be issued used in section 149 mean mere signing of
notice by the Assessing Officer or handing over of the said notice in the hands of
the proper officer for serving it to the assessee to constitute a valid notice issued
within the prescribed time limit?
Kanubhai M. Patel (HUF) v. Hiren Bhatt or his successors to Office (2011) 334 ITR
25 (Guj.)
In the present case, the assessee filed a return of income for the assessment year 2003-
04. The assessee did not receive any notice under section 143(2). On 8
th
April, 2010, the
assessee received a notice under section 148 dated 31
st
March, 2010 for the assessment
of income relating to assessment year 2003-04 under section 147. The assessee, on
inquiry from the post office, found out that the department had sent the covers for issuing
notice to the speed post centre (for booking) only on 7
th
April, 2010 and not on 31
st

March, 2010 and the Revenue also did not challenge this finding of the assessee.
The assessee, therefore, challenged the legality and validity of the notices dated 31
st
March,
2010 issued by the department under section 148 as being time barred contending that the
impugned notices have been issued beyond the time limit prescribed under the provisions of
section 149 i.e. after a period of six years from the end of the relevant assessment year. The
assessee contended that the date of issue of the notices under section 148 would be the date
on which the same have been dispatched by registered post i.e. 7
th
April, 2010 and not the
date of signing of the notice by the Assessing Officer i.e. 31
st
March, 2010.
The Gujarat High Court observed that the core issue which arises for consideration is the
date when the notice under section 148 can be said to have been issued. For this
purpose, it is necessary to examine the true meaning of the phrase shall be issued as
employed in section 149(1) according to which no notice under section 148 shall be
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issued for the relevant assessment year, if the specified time period (i.e. 4 years/6 years,
as the case may be) has elapsed from the end of the relevant assessment year.
The Gujarat High Court observed that according to Black's Law Dictionary, the term issue
when used with reference to writs, process, and the like, would mean as importing delivery to
the proper person, or to the proper officer for service etc. Therefore, any notice may be
considered to be issued if made out and placed in the hands of a person authorised to serve
it, and with a bona fide intent to have it served. The expression shall be issued in section
149 would, therefore, have to be read in the above mentioned context.
In the present case, the notice has been signed on 31
st
March, 2010, whereas the same were
sent to the speed post centre for booking only on 7
th
April, 2010. From the above definition of
the word "issue", it is apparent that mere signing of notices on 31
st
March, 2010 cannot
tantamount to issuance of notice as contemplated under section 149. The date of issue would
be the date on which the same were handed over for service to the proper officer, which, in
the facts of the present case, would be the date on which the said notices were actually
handed over to the post office for the purpose of effecting service on the assessee.
Hence, the date of issue of the said notice would be 7
th
April, 2010 and not 31
st
March,
2010. Therefore, the aforesaid notice under section 148 in relation to the assessment
year 2003-04, having been issued on 7
th
April, 2010, is beyond the period of six years
from the end of the relevant assessment year and clearly barred by limitation.
9. Can the Assessing Officer issue notice under section 154 to rectify a mistake
apparent fromrecord in the intimation under section 143(1), after issue of a valid
notice under section 143(2)?
CIT v. Haryana State Handloomand Handicrafts Corporation Ltd. (2011) 336 ITR 699
(P&H)
On this issue, the Punjab and Haryana High Court referred to the Delhi High Court ruling
in CIT v. Punjab National Bank (2001) 249 ITR 763, where it was held that rectification of
an intimation cannot be made after issuance of notice under section 143(2) and during
the pendency of proceedings under section 143(3). It was held that if any change was
permitted to be effected, the same can be done in the assessment under section 143(3)
and not by exercising the power under section 154 to rectify the intimation issued under
section 143(1)
In the present case, the Punjab and Haryana High Court relying, inter alia, on the said
decision held that the scope of proceedings under section 143(2) is wider than the power
of rectification of mistake apparent from record under section 154. The notice under
section 143(2) is issued to ensure that the assessee has not understated the income or
has not computed excessive loss or underpaid the tax. It is only on consideration of the
matter and on being satisfied that it is necessary or expedient to do so that the Assessing
Officer issues the notice under section 143(2). Therefore, the Assessing Officer has to
proceed under section 143(3) and issue an assessment order. If issue of notice under
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section 154 is permitted to rectify the intimation issued under section 143(1), then it
would lead to duplication of work and wastage of time.
Therefore, it was concluded that proceedings under section 154 for rectification of
intimation under section 143(1) cannot be initiated after issuance of notice under section
143(2) by the Assessing Officer to the assessee.
10. Would the doctrine of merger apply for calculating the period of limitation under
section 154(7)?
CIT v. Tony Electronics Limited (2010) 320 ITR 378 (Del.)
The issue under consideration is whether the time limit of 4 years as per section 154(7) would
apply from the date of original assessment order or the order of the Appellate Authority.
The High Court held that once an appeal against the order passed by an authority is
preferred and is decided by the appellate authority, the order of the Assessing Officer
merges with the order of the appellate authority. After merger, the order of the original
authority ceases to exist and the order of the appellate authority prevails.
Thus, the period of limitation of 4 years for the purpose of section 154(7) has to be
counted from the date of the order of the Appellate Authority.
Note - In this case, the Delhi High Court has followed the decision of the Supreme Court
in case of Hind Wire Industries v. CIT (1995) 212 ITR 639.
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13
APPEALS AND REVISION
1. Can an assessee file a revision petition under section 264, if the revised return to
correct an inadvertent error apparent fromrecord in the original return, is filed
after the time limit specified under section 139(5) on account of the error coming to
the notice of the assessee after the specified time limit?
Sanchit Software and Solutions Pvt. Ltd. v. CIT (2012) 349 ITR 404 (Bom.)
The assessee-company had electronically filed its return of income. It committed a
mistake by including dividend income [exempt under section 10(34)] and long term
capital gains on sale of shares [exempt under section 10(38)] in its return of income,
though the same was correctly disclosed in the Schedule containing details of exempt
income. The return was processed under section 143(1) denying the exemptions under
section 10(38) and 10(34) and therefore, intimation under section 143(1) was served on
the assessee raising a demand of tax. The assessee, on receiving the intimation,
noticed the error committed and filed a revised return rectifying the error. However, the
revised return was not sustainable as the same was filed beyond the period of limitation
as provided under section 139(5). Later, the assessee filed an application for
rectification under section 154 and also a revision petition under section 264.
The Commissioner of income-tax, while considering the revision petition, contended that
the intimation under section 143(1) was based on the return of the assessee, in which the
claims under section 10(34) and under section 10(38) were not made by the assessee.
Hence, it cannot be said that the intimation under section 143(1) was erroneous, since
the same was squarely based on the return filed by the assessee. Secondly, the power of
Commissioner under section 264 is only restricted to the record available before the
Assessing Officer which can be examined by the Commissioner. In the circumstances,
the other evidence sought to be brought on record to establish the mistake committed by
the assessee cannot be considered by the Commissioner under section 264. The
revision petition under section 264 was rejected by the Commissioner on the above
grounds.
The High Court observed that the entire object of administration of tax is to secure the
revenue for the development of the country and not to charge the assessee more tax
than which is due and payable by the assessee. In this context, the High Court referred
to the CBDT Circular issued as far back as 11
th
April, 1955 directing the Assessing
Officer not to take advantage of the assessees mistake. The High Court opined that the
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said Circular should always be borne in mind by the officers of the Revenue while
administering the Act.
The High Court observed that, in this case, the Commissioner of income-tax had
committed a fundamental error in proceeding on the basis that no deduction on account
of dividend income and long-term capital gains under section 10 was claimed from the
total income, without considering that the assessee had specifically sought to exclude the
same as is evident from the entries in the relevant Schedule. Therefore, this was an
error on the face of the order and hence, the same was not sustainable. Accordingly, the
High Court set aside the order of Commissioner and remanded the matter for fresh
consideration.
The High Court further directed the Assessing Officer to consider the rectification
application filed by the assessee under section 154 as a fresh application received on the
date of service of this order and dispose of the rectification application on its own merits,
without awaiting the result of the revision proceedings before the Commissioner of
Income-tax on remand, at the earliest.
2. Would the period of limitation for an order passed under section 263 be reckoned
fromthe original order passed by the Assessing Officer under section 143(3) or
fromthe order of reassessment passed under section 147, where the subject
matter of revision is different fromthe subject matter of reassessment under
section 147?
CIT v. ICICI Bank Ltd. (2012) 343 ITR 74 (Bom.)
In the present case, an order of assessment was passed under section 143(3) allowing
the deduction under section 36(1)(vii), 36(1)(viia) and foreign exchange rate difference.
Further, two notices of reassessment were issued under section 148 and an order of
reassessment was passed under section 147 which did not deal with the above
deductions.
Later, the Commissioner passed an order under section 263 for disallowing the
deduction under section 36(1)(vii), 36(1)(viia) and in respect of foreign exchange rate
difference which have not been taken up in the reassessment proceedings under section
147 but which was decided in the original order of assessment passed under section
143(3).
The assessee claimed that the order passed by the Commissioner under section 263 is
barred by limitation since the period of 2 years from the end of the financial year in which
the order sought to be revised was passed, had lapsed. However, the Revenue gave a
plea that period of limitation shall be reckoned from the date of order under section 147
and not from the date of the original assessment order under section 143(3), applying the
doctrine of merger.
The Revenue pointed out that as per the provisions of Explanation 3 to section 147, the
Assessing Officer is entitled to assess or reassess the income in respect of any issue
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which has escaped assessment though the reasons in respect of such issue have not
been included in the reasons recorded under section 148(2).
Considering the above mentioned facts, the Bombay High Court held that the order of
assessment under section 143(3) allowed deduction under section 36(1)(vii), 36(1)(viia)
and in respect of foreign exchange rate difference. The order of reassessment, however,
had not dealt with these issues. Therefore, the doctrine of merger cannot be applied in
this case. The order under section 143(3) cannot stand merged with the order of
reassessment in respect of those issues which did not form the subject matter of the
reassessment.
Therefore, the period of limitation in respect of the order of the Commissioner under
section 263 with regard to a matter which does not form the subject matter of
reassessment shall be reckoned from the date of the original order under section 143(3)
and not from the date of the reassessment order under section 147.
3. Can the Commissioner initiate revision proceedings under section 263 on the ground
that the Assessing Officers order not initiating penal proceedings was erroneous and
prejudicial to the interest of the Revenue, in a case where non-initiation of penal
proceedings was a pre-condition for surrender of income by the assessee?
CIT v. Subhash Kumar J ain (2011) 335 ITR 364 (P&H)
In the present case, an addition of ` 9,91,090 was made in the assessment of the assessee
under section 143(3) on account of agricultural income, since the assessee failed to explain
the source of agricultural income as declared by him in the return of income. The said
addition was made on the basis of the report submitted by the Inspector pointing out the
defects in the documents furnished by the assessee. As a result, the assessee made an offer
to surrender ` 9,91,090 subject to a condition that no penal action under section 271(1)(c)
would be initiated. The Assessing Officer accepted the same as the department did not have
any documentary evidence against the assessee and the assessment was made only on the
basis of the report by the Inspector. Accordingly, the assessment was framed by the
Assessing Officer without initiating the penalty proceedings under section 271(1)(c). The
Commissioner of Income-tax, exercising his power under section 263, directed the Assessing
Officer to frame a fresh assessment order after taking into account the facts attracting the
penal action under section 271(1)(c), considering the original order erroneous and prejudicial
to the interest of the Revenue.
The issue under consideration in this case is whether, when the Assessing Officer, while
passing the assessment order under section 143(3), had given effect to the office note that
the surrender of the agricultural income which was made by the assessee would not be
subject to penal action under section 271(1)(c) and accordingly not levied penalty, can the
Commissioner of Income-tax, in exercise of his power under section 263, hold the order of
the Assessing Officer to be erroneous and prejudicial to the interest of the Revenue.
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On this issue, the Punjab and Haryana High Court observed that, on perusal of the Office
Note issued by the Assessing Officer, it was clear that the assessee had made surrender
of income with a clear condition that no penal action under section 271(1)(c) would be
initiated. The Office Note further depicts that the offer of the assessee was accepted by
the Department. Once that was so, the Commissioner cannot take a different view and
levy penalty. The High Court relied on the decision of the Bombay High Court in J ivatlal
Purtapshi v. CIT (1967) 65 ITR 261, where it was observed that an order based on an
agreement cannot give rise to grievances and the same cannot be agitated.
4. Can an assessee make an additional/newclaimbefore an appellate authority,
which was not claimed by the assessee in the return of income (though he was
legally entitled to), otherwise than by way of filing a revised return of income?
CIT v. Pruthvi Brokers & Shareholders (2012) 208 Taxman 498 (Bom.)
While considering the above mentioned issue, the Bombay High Court observed the
decision of the Supreme Court, in the case of J ute Corporation of India Ltd. v. CIT (1991)
187 ITR 688 and National Thermal Power Corporation. Ltd v. CIT (1998) 229 ITR 383,
that an assessee is entitled to raise additional claims before the appellate authorities.
The appellate authorities have jurisdiction to permit additional claims before them,
however, the exercise of such jurisdiction is entirely the authorities discretion.
Also, the High Court considered the decision of the Apex Court in the case of Addl. CIT
v. Gurjargravures (P.) Ltd.(1978) 111 ITR 1, wherein it was held that in case an
additional ground was raised before the appellate authority which could not have been
raised at the stage when the return was filed or when the assessment order was made,
or the ground became available on account of change of circumstances or law, the
appellate authority can allow the same.
The Supreme Court, in the case of Goetze (India) Ltd v. CIT (2006) 157 Taxmann 1, held
that the assessee cannot make a claim before the Assessing Officer otherwise than by
filing an application for the same. The additional claim before the Assessing Officer can
be made only by way of filing revised return of income.
The decision in the above mentioned case, however, does not apply in this case, since
the Assessing Officer is not an Appellate Authority.
Therefore, in the present case, the Bombay High Court, considering the above mentioned
decisions, held that additional grounds can be raised before the Appellate Authority even
otherwise than by way of filing return of income. However, in case the claim has to be
made before the Assessing Officer, the same can only be made by way of filing a revised
return of income.
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5. Does the Appellate Tribunal have the power to review or re-appreciate the
correctness of its earlier decision under section 254(2)?
CIT v. Earnest Exports Ltd. (2010) 323 ITR 577 (Bom.)
In this case, the High Court observed that the power under section 254(2) is limited to
rectification of a mistake apparent on record and therefore, the Tribunal must restrict
itself within those parameters. Section 254(2) is not a carte blanche for the Tribunal
to change its own viewby substituting a viewwhich it believes should have been
taken in the first instance. Section 254(2) is not a mandate to unsettle decisions taken
after due reflection.
In this case, the Tribunal, while dealing with the application under section 245(2), virtually
reconsidered the entire matter and came to a different conclusion. This amounted to a
reappreciation of the correctness of the earlier decision on merits, which is beyond the
scope of the power conferred under section 254(2).
6. Can the Tribunal exercise its power of rectification under section 254(2) to recall its
order in entirety, where there is a mistake apparent fromrecord?
Lachman Dass Bhatia Hingwala (P) Ltd. v. ACIT (2011) 330 ITR 243 (Delhi)(FB)
On this issue, the Delhi High Court observed that the justification of an order passed by
the Tribunal recalling its own order is required to be tested on the basis of the law laid
down by the Apex Court in Honda Siel Power Products Ltd. v. CIT (2007) 295 ITR 466,
dealing with the Tribunals power under section 254(2) to recall its order where prejudice
has resulted to a party due to an apparent omission, mistake or error committed by the
Tribunal while passing the order. Such recalling of order for correcting an apparent
mistake committed by the Tribunal has nothing to do with the doctrine or concept of
inherent power of review. It is a well settled provision of law that the Tribunal has no
inherent power to review its own judgment or order on merits or reappreciate the
correctness of its earlier decision on merits. However, the power to recall has to be
distinguished from the power to review. While the Tribunal does not have the inherent
power to review its order on merits, it can recall its order for the purpose of correcting a
mistake apparent from the record.
The Apex Court, while dealing with the power of the Tribunal under section 254(2) in
Honda Siel Power Products Ltd., observed that one of the important reasons for giving
the power of rectification to the Tribunal is to see that no prejudice is caused to either of
the parties appearing before it by its decision based on a mistake apparent from the
record. When prejudice results from an order attributable to the Tribunals mistake, error
or omission, then it is the duty of the Tribunal to set it right. In that case, the Tribunal had
not considered the material which was already on record while passing the judgment.
The Apex Court took note of the fact that the Tribunal committed a mistake in not
considering material which was already on record and the Tribunal acknowledged its
mistake and accordingly, rectified its order.
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The above decision of the Apex Court is an authority for the proposition that the Tribunal, in
certain circumstances can recall its own order and section 254(2) does not totally prohibit
so. In view of the law laid down by the Apex Court in that case, the decisions rendered by
the High Courts in certain cases to the effect that the Tribunal under no circumstances can
recall its order in entirety do not lay down the correct statement of law.
Applying the above-mentioned decision of the Apex Court to this case, the Delhi High
Court observed that the Tribunal, while exercising the power of rectification under section
254(2), can recall its order in entirety if it is satisfied that prejudice has resulted to the
party which is attributable to the Tribunals mistake, error or omission and the error
committed is apparent.
Note - In deciding whether the power under section 254(2) can be exercised to recall an
order in entirety, it is necessary to understand the true principle laid down in the Apex
Court decision. A decision should not be mechanically applied treating the same as a
precedent without appreciating the underlying principle contained therein. In this case,
the Apex Court decision was applied since prejudice had resulted to the party on account
of the mistake of the Tribunal apparent fromrecord.

7. Does the High Court have an inherent power under the Income-tax Act, 1961 to
reviewan earlier order passed on merits?
Deepak Kumar Garg v. CIT (2010) 327 ITR 448 (MP)
The power to review is not an inherent power and must be conferred by law specifically
by express provision or by necessary implication. The appellate jurisdiction of the High
Court carries with it statutory limitations under the statute, unlike the extraordinary
powers which are enjoyed by the Court under article 226 of the Constitution of India.
It was observed that, keeping in view the provisions of section 260A(7), the power of re-
admission/restoration of the appeal is always enjoyed by the High Court. However, such
power to restore the appeal cannot be treated to be a power to review the earlier order
passed on merits.

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14
PENALTIES
1. Where an assessee repays a loan merely by passing adjustment entries in its
books of account, can such repayment of loan by the assessee be taken as a
contravention of the provisions of section 269T to attract penalty under section
271E?
CIT v. Triumph International Finance (I.) Ltd. (2012) 345 ITR 270 (Bom.)
In the present case, the assessee is a public limited company, registered as category-I
merchant banker with SEBI, engaged in the business of stock broking, investment and trading
in shares and securities. The assessee had taken a loan from the Investment Trust of India.
During the previous year in question, the assessee had transferred shares of a company held
by it to the Investment Trust of India. Therefore, in the current assessment year, the assessee
was liable to pay the loan amount to the Investment Trust of India and had a right to receive
the sale price of the shares transferred to Investment Trust of India. In order to avoid the
unnecessary circular transfer of shares, both the parties agreed to set-off the amount payable
and receivable by way of passing journal entries and the balance loan amount was paid by
the assessee by way of an account payee cheque. The amount of loan settled by way of
passing journal entries exceeds ` 20,000.
The Assessing Officer passed the assessment order levying penalty under section 271E for
the contravention of the provisions of section 269T on the argument that since section 269T
put an obligation on the assessee to pay loan only by way of an account payee cheque or an
account payee draft, the settlement of a portion of the loan by passing journal entry would be
a mode otherwise than by way of an account payee cheque or an account payee draft and
therefore, the penal provisions under section 271E shall be attracted.
The assessee argued that the transaction of repayment of loan or deposit by way of adjustment
through book entries was carried out in the ordinary course of business and the genuineness of
the assessees transaction with the Investment Trust of India was also accepted by the Tribunal.
It is a bonafide transaction. The assessee further contended that section 269T mentions that in
a case where the loan or deposit is repaid by an outflow of funds, the same has to be by an
account payee cheque or an account payee demand draft. However, in case the discharge of
loan or deposit is in a manner otherwise than by an outflow of funds, as is the situation in the
present case, the provisions of section 269T would not apply.
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Considering the above mentioned facts and arguments, the Bombay High Court held
that, the obligation to repay the loan or deposit by account payee cheque/bank draft as
specified in section 269T is mandatory in nature. The contravention of the said section
will attract penalty under section 271E.
The argument of the assessee cannot be accepted since section 269T does not make a
distinction between a bonafide or a non-bonafide transaction neither does it require the
fulfillment of the condition mentioned therein only in case where there is outflow of funds.
It merely puts a condition that in case a loan or deposit is repaid, it should be by way of
an account payee cheque/ draft. Therefore, in the present case the assessee has repaid
a portion of loan in contravention of provisions of section 269T.
However, the cause shown by the assessee for repayment of the loan otherwise than by
account payee cheque/bank draft was on account of the fact that the assessee was liable to
receive amount towards the sale price of the shares sold by the assessee to the person from
whom loan was received by the assessee. It would have been mere formality to repay the
loan amount by account payee cheque/draft and receive back almost the same amount
towards the sale price of the shares. Also, neither the genuineness of the receipt of loan nor
the transaction of repayment of loan by way of adjustment through book entries carried out in
the ordinary course of business has been doubted in the regular assessment. Therefore,
there is nothing on record to suggest that the amounts advanced by Investment Trust of India
to the assessee represented the unaccounted money of the Investment Trust of India or the
assessee and also it cannot be said that the whole transaction was entered into to avoid tax.
This is accepted as a reasonable cause under section 273B.
In effect, the assessee has violated the provisions of section 269T by repaying the loan
amount by way of passing book entries and therefore, penalty under section 271E is
applicable. However, since the transaction is bona fide in nature being a normal business
transaction and has not been made with a view to avoid tax, it was held that the
assessee has shown reasonable cause for the failure under section 269T, and therefore,
as per the provisions of section 273B, no penalty under section 271E could be imposed
on the assessee for contravening the provisions of section 269T.
Note: In order to mitigate the hardship caused by certain penalty provisions in case of
genuine business transactions, section 273B provides that no penalty under, inter alia,
section 271E shall be imposed on a person for any failure referred to in the said section,
if such person proves that there was reasonable cause for such failure.
2. Can penalty under section 271(1)(c) be imposed if an assessee had wrongly
claimed deduction of provision made for payment of gratuity in its return of
income, though the same was shown as disallowed under section 40A(7) in the
statement of particulars filed along with tax audit report under section 44AB?
Price Waterhouse Coopers Pvt. Ltd. v. CIT (2012) 348 ITR 306 (SC)
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The assessee is engaged in multi disciplinary management consultancy services. It had
claimed deduction of provision made for payment of gratuity, though the annexure to the
tax audit report in Form No. 3CD indicated that the provision towards payment of gratuity
was not allowable under section 40A(7).
The Assessing Officer issued a notice to the assessee under section 148 for reopening
the assessment. Thereafter, upon request, he furnished the reasons for reopening the
assessment. It was then that the assessee realised its mistake and informed the
Assessing Officer, by way of a letter, that there was no willful suppression of facts but a
genuine mistake had been committed. Accordingly, the assessee filed a revised return
on the same day and paid the tax due with interest.
The Assessing Officer, thereafter, initiated penalty proceedings under section 271(1)(c)
and levied penalty at 300% of the tax sought to be evaded by the assessee, contending
that the assessee has furnished inaccurate particulars of its income. The Tribunal
reduced the penalty to 100% and the High Court confirmed the order of the Tribunal.
Considering the above facts, the Supreme Court observed that the tax audit report was
filed along with the return and it unequivocally stated that the provision for gratuity was
not allowable under section 40A(7). This fact indicates that the assessee made a
computation error in its return of income. The error was also not noticed by the
Assessing Officer who framed the assessment order and before whom, the tax audit
report was also placed. The contents of the tax audit report showed that there was no
question of the assessee concealing the income or furnishing any inaccurate particulars.
Therefore, the Apex Court held that the assessee had committed an inadvertent and
bona fide error and had not intended to or attempted to either conceal its income or
furnish inaccurate particulars. Therefore, the Apex Court held that imposition of penalty
on the assessee was not justified and it reversed the decision of the High Court.
3. Can reporting of income under a different head be considered as tantamount to
furnishing of inaccurate particulars or suppression of facts to attract penalty under
section 271(1)(c)?
CIT v. Amit J ain (2013) 351 ITR 74 (Delhi)
In this case, the assessee declared a particular income as short-term capital gains in his
return. The Assessing Officer, on an interpretation of the relevant provisions and having
regard to the nature of transactions, assessed such income as income from business.
He further levied penalty under section 271(1)(c) on the ground that the assessee had
furnished inaccurate particulars of his income.
The Commissioner (Appeals), however, cancelled the penalty. The Tribunal upheld the
order of the Commissioner (Appeals), observing that the record reveals that the amount in
question, which formed the basis of levy of penalty by the Assessing Officer, was honestly
reported in the return. Therefore, merely because the Assessing Officer was of the opinion
that the income fell under some other head cannot be reason enough to treat the
particulars reported in the return as inaccurate particulars or as suppression of facts.
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The High Court, after considering the above observations of the Tribunal and the
decision of the Supreme Court in CIT v. Reliance Petro Products Pvt. Ltd. (2010) 322 ITR
158, held that mere reporting of income under a different head would not characterize the
particulars reported as inaccurate to attract levy of penalty under section 271(1)(c).
4. Can penalty under section 271(1)(c) be imposed on the ground of disallowance of a certain
deduction under Chapter VI-A owing to the subsequent decision of the Supreme Court?
CIT v. Celetronix Power India P. Ltd. (2013) 352 ITR 70 (Bom.)
In this case, the assessee had claimed deduction a particular section under Chapter VI-A
relying on a judgment of the Bombay High Court. Subsequent to filing of its return, the
above judgment was reversed by the Supreme Court and accordingly, the deduction was
not allowed at the time of assessment. Consequent to additions made on account of such
disallowance, penalty was also imposed.
The Tribunal observed that for imposing penalty under section 271(1)(c), there should be
concealment of income or furnishing of inaccurate particulars of income, which were
missing in this case. The assessee had disclosed all material facts relevant for
assessment and there was no concealment.
The Bombay High Court affirmed the decision of Appellate Tribunal deleting the penalty
under section 271(1)(c) on the ground that the additions made on account of
disallowance were neither due to the failure on the part of the assessee to furnish
accurate particulars nor on account of furnishing inaccurate particulars.
5. In the case of an assessee liable to pay minimumalternate tax under section
115JB, can penalty under section 271(1)(c) be imposed on account of additions
made in respect of certain capital expenditure, treated by the assessee as revenue
expenditure, if, even after such additions to total income, the assessee is still
assessable under section 115JB?
CIT v. Amtek Auto Ltd. (2013) 352 ITR 394
The Assessing Officer levied penalty under section 271(1)(c), in respect of additions made on
account of loss on sale of fixed asset, loss on sale of shares and expenses paid towards
placement of preference shares. On appeal by the assessee, the Tribunal observed that the
additions were based on a difference of opinion as to whether such expenses and losses were
revenue or capital in nature, and not on account of any false claim made by the assessee.
Further, even after such additions, the tax on total income was lower than the minimum
alternate tax on book profit, consequent to which there was no change in the tax payable.
On appeal by the Revenue, the High Court observed that the assessee had disclosed the
nature of transactions in its return. It was on the basis of the information disclosed and
the interpretation of the provisions of the statute, the Assessing Officer found that such
expenditure claimed by the assessee is not revenue expenditure but capital expenditure.
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The High Court, therefore, concurred with the observation of the Tribunal and held that
merely for the reason that the assessee-company had claimed the expenditure to be
revenue will not render it liable to penal proceedings, when there has been no
concealment of income.
6.
Can penalty under section 271(1)(c) for concealment of income be imposed in a
case where the assessee has raised a debatable issue?
CIT v. Indersons Leather P. Ltd. (2010) 328 ITR 167 (P&H)
The assessee company, after discontinuing its manufacturing business, leased out its
shed along with fittings and disclosed the income as income from business, whereas the
Revenue contended that the same be assessed as Income from house property. The
issue
under
consideration is whether penalty under section 271(1)(c) can be imposed in
such a case.
On this issue, the High Court observed that, mere raising of a debatable issue would not
amount to concealment of income or furnishing inaccurate particulars and therefore,
penalty under section 271(1)(c) cannot be imposed.
7. Can the penalty under section 271(1)(c) be imposed where the assessment is made
by estimating the net profit at a higher percentage applying the provisions of
section 145?
CIT v. Vijay Kumar J ain (2010) 325 ITR 378 (Chhattisgarh)
Relevant section: 271(1)(c)
In this case, the Assessing Officer levied penalty under section 271(1)(c) on the basis of
addition made on account of application of higher rate of net profit by applying the
provisions of section 145, consequent to rejection of book results by him.
On this issue, the High Court held that the particulars furnished by the assessee
regarding receipts in the relevant financial year had not been found inaccurate and it was
also not the case of revenue that the assessee concealed any income in his return. Thus,
penalty could not be imposed.
The High Court placed reliance on the ruling of the Supreme Court in CIT v. Reliance
Petroproducts P. Ltd. (2010) 322 ITR 158, while considering the applicability of section
271(1)(c). In that case, the Apex Court had held that in order to impose a penalty under
the section, there has to be concealment of particulars of income of the assessee or the
assessee must have furnished inaccurate particulars of his income. Where no
information given in the return is found to be incorrect or inaccurate, the assessee cannot
be held guilty of furnishing inaccurate particulars.
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8. Would making an incorrect claimin the return of income per se amount to
concealment of particulars or furnishing inaccurate particulars for attracting the
penal provisions under section 271(1)(c), when no information given in the return
is found to be incorrect?
CIT v. Reliance Petro Products Pvt. Ltd. (2010) 322 ITR 158 (SC)
In this case, the Supreme Court observed that in order to attract the penal provisions of
section 271(1)(c), there has to be concealment of the particulars of income or furnishing
inaccurate particulars of income. Where no information given in the return is found to be
incorrect or inaccurate, the assessee cannot be held guilty of furnishing inaccurate
particulars. Making an incorrect claim (i.e. a claim which has been disallowed) would not,
by itself, tantamount to furnishing inaccurate particulars.
The Apex Court, therefore, held that where there is no finding that any details supplied by
the assessee in its return are incorrect or erroneous or false, there is no question of
imposing 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.
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15
OFFENCES AND PROSECUTION
1. Would prosecution proceedings under section 276CC be attracted where the failure
to furnish return in time was not willful?
Union of India v. Bhavecha Machinery and Others (2010) 320 ITR 263 (MP)
In this case, the High Court observed that for the provisions of section 276CC to get
attracted, there should be a willful delay in filing return and not merely a failure to file
return in time. There should be clear, cogent and reliable evidence that the failure to file
return in time was willful and there should be no possible doubt of its being wilful. The
failure must be intentional, deliberate, calculated and conscious with complete knowledge
of legal consequences flowing from them.
In this case, it was observed that there were sufficient grounds for delay in filing the
return of income and such delay was not willful. Therefore, prosecution proceedings
under section 276CC are not attracted in such a case.
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16
DEDUCTION, COLLECTION AND RECOVERY OF
TAX
1. Do the tips collected by hotel and disbursed to employees constitute salary to
attract the provisions for tax deduction at source under section 192?
CIT (TDS) v. ITC Ltd. [2011] 338 ITR 598 (Del.)
The assessee-company was engaged in the business of owning, operating and
managing hotels. The assessee-company allowed the employees to receive tips from the
customers, by virtue of the employment, and in case the employer himself collected tips,
those were also disbursed by the employer to the employees. Once the tips were paid by
the customers either in cash directly to the employees or by way of charge to the credit
cards in the bills, the employees gained additional income, which was by virtue of their
employment. When the tips were received by the employees directly in cash, the
employer hardly had any role and it may not even know the amounts of tips collected by
the employees. That would be out of the purview of responsibility of the employer under
section 192.
However, when the tips were charged to the bill either by way of a fixed percentage, say
10 per cent. or so on the total bill, or where no percentage was specified and the amount
was indicated by the customer on the bill as a tip, the tip went into the receipt of the
employer and was subsequently disbursed to the employees. As soon as such amounts
were received by the employer, there was an obligation on the part of the employer to
disburse them to the rightful persons, namely, the employees. Simultaneously, a right
accrued to the employees to claim the tips from the employer. By virtue of the employer-
employee relationship, a vested right accrued to the employee to claim the tips. The High
Court, therefore, held that the tips would constitute income within the meaning of section
2(24) and thus, taxable under section 15. It was obligatory upon the company to deduct
tax at source from such payments under section 192.
In this case, the assessee-company had not deducted tax at source on tips under a bona
fide belief that tax was not deductible. This practice had been accepted by the Revenue
by accepting the assessments in the form of annual returns of the assessees in the past.
The High Court held that since no dishonest intention could be attributed to the
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assessees, they could not be made liable for levy of penalty as envisaged under section
201.
The High Court, however, observed that payment of interest under section 201(1A) is
mandatory. The payment of interest under that provision is not penal. There was,
therefore, no question of waiver of such interest on the basis that the default was not
intentional or on any other basis.
2. Can an assessee carrying on commission agency business (i.e., business of
arranging transportation of goods through lorries owned by other transporters) be
made liable to deduct tax under section 194C, in respect of amount received from
clients and passed on to the lorry owners/transporters (after retaining his booking
commission)?
CIT v. Hardarshan Singh (2013) 350 ITR 0427 (Delhi)
The assessee has four trucks and is in the business of transporting goods (hereinafter
referred to as own business). He also carries on the business of a commission agent
by arranging for transportation of goods through other transporters (hereinafter referred
to as lorry booking business). In respect of his own business, the payments received
by the assessee were after deduction of tax.
The issue under consideration is whether the assessee can be treated as the person
responsible for making the payment under section 194C in respect of amount collected
from clients and paid to the lorry owners/transporters, and consequently, be made liable
to deduct tax at source.
The assessee contended that, as far as the lorry booking business is concerned, he has
no contract of carriage with any other person. The contract is between the clients and the
lorry owners/transporters, in which the assessee only acts as a facilitator or as an
intermediary. His income is only the booking commission, which he retains out of the
amount collected from the clients. The remaining amount is passed on entirely to the
lorry owners/transporters.
The Assessing Officer and the Commissioner, however, did not agree with this
contention of the assessee and were of the view held that there was a privity of contract
between the assessee and the clients for carriage of goods and that the assessee was
not a mere intermediary or facilitator.
The Tribunal, noting that the assessee has not done the work of actual transportation of
goods and earned only commission, held that the assessee has no privity of contract for
carriage of goods with the clients and he merely acted as a facilitator or intermediary.
Therefore, the assessee was not liable to deduct tax at source, and accordingly
disallowance under section 40(a)(ia) was not attracted in this case.
The Revenue contended before the High Court that the assessee was the person
responsible for paying as provided in section 194C read with section 204. The High
Court observed that this contention was tenable only if there was privity of contract
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between the assessee and its clients. The High Court also noted that the facts of the
case were similar to the case of CIT v. Cargo Linkers (2009) 179 Taxman 151 (Delhi),
where the principal contract was between the exporter and the airline. In that case, it
was held that the assessee had merely functioned as an intermediary, and hence, it was
not the person responsible for deduction of tax in terms of section 194C.
The High Court, applying the rationale of the above ruling to the case on hand, held that,
in this case also, the assessee mainly acted as an intermediary or facilitator for which he
received commission, and hence, he was not the person responsible for making the
payment in terms of section 194C.
3. Can services rendered by a hotel to its customers in providing hotel roomwith
various facilities / amenities (like house keeping, bank counter, beauty saloon, car
rental, health club etc.) amount to carrying out any work to attract the provisions
of section 194C?
East India Hotels Ltd. v. CBDT (2010) 320 ITR 526 (Bom.)
Relevant section: 194C
On this issue, the High Court observed that the words carrying out any work in section
194C are limited to any work which on being carried out culminates in a product or result.
Work in the context of this section, has to be understood in a limited sense and would
extend only to the service contracts specifically included in section 194C by way of
clause (iv) of the Explanation below sub-section(7).
The provisions of tax deduction at source under section 194C would be attracted in
respect of payments for carrying out the work like construction of dams, laying of roads
and air fields, erection or installation of plant and machinery etc. In these contracts, the
execution of the contract by a contractor or sub-contractor results in production of the
desired object or accomplishing the task under the contract.
However, facilities or amenities made available by a hotel to its customers do not fall
within the meaning of work under section 194C, and therefore provisions of TDS under
this section are not attracted.
4. Can discount given to stamp vendors on purchase of stamp papers be treated as
commission or brokerage to attract the provisions for tax deduction under
section 194H?
CIT v. Ahmedabad Stamp Vendors Association (2012) 348 ITR 378 (SC)
The principal issue in this case is whether stamp vendors are agents of the State
Government who are being paid commission or brokerage or whether the sale of stamp
papers by the Government to the licensed vendors is on principal-to-principal basis
involving a contract of sale.
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On this issue, the Gujarat High Court had in, Ahmedabad Stamp Vendors Association v.
Union of India (2012) 348 ITR 378, observed that the crucial question is whether the
ownership in the stamp papers passes to the stamp vendor when the treasury officer
delivers stamp papers on payment of price less discount. The Gujarat Stamp Supply and
Sales Rules, 1987 contemplates that the licensed vendor, while taking delivery of the
stamp papers from the Government offices, is purchasing the stamp papers. The Rules
also indicate that the discount which the licensed vendor has obtained from the
Government is on purchase of the stamp papers.
If the licensed stamp vendors were mere agents of the State Government, no sales tax
would have been leviable when the stamp vendors sell the stamp papers to the
customers, because it would have been sale by the Government through stamp
vendors. However, entry 84 in Schedule I to the Gujarat Sales Tax Act, 1969 specifically
exempts sale of stamp papers by the licensed vendors from sales-tax. The very basis of
the State Legislature enacting such exemption provision in respect of sale of stamp
papers by the licensed vendors makes it clear that the sale of stamp papers by the
licensed vendors to the customers would have, but for such exemption, been subject to
sales tax levy. The question of levy of sales tax arises only because the licensed vendors
themselves sell the stamp papers on their own and not as agents of the State
Government. Had they been treated as agents of the State Government, there would be
no question of levy of sales tax on sale of stamp papers by them, and consequently,
there would have been no necessity for any exemption provision in this regard.
Therefore, although the Government has imposed a number of restrictions on the
licensed stamp vendors regarding the manner of carrying on the business, the stamp
vendors are required to purchase the stamp papers on payment of price less discount on
principal to principal basis and there is no contract of agency at any point of time. The
definition of commission or brokerage under clause (i) of the Explanation to section
194H indicates that the payment should be received, directly or indirectly, by a person
acting on behalf of another person, inter alia, for services in the course of buying or
selling goods. Therefore, the element of agency is required in case of all services and
transactions contemplated by the definition of commission or brokerage under
Explanation (i) to section 194H. When the licensed stamp vendors take delivery of stamp
papers on payment of full price less discount and they sell such stamp papers to the
retail customers, neither of the two activities (namely, buying from the Government and
selling to the customers) can be termed as service in the course of buying and selling of
goods. The High Court, therefore, held that discount on purchase of stamp papers does
not fall within the expression commission or brokerage to attract the provisions of tax
deduction at source under section 194H.
The Supreme Court affirmed the above decision of the High Court holding that the given
transaction is a sale and the discount given to stamp vendors for purchasing stamps in
bulk quantity is in the nature of cash discount and consequently, section 194H has no
application in this case.
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5. Can discount given on supply of SIMcards and recharge coupons by a telecom
company to its distributors under a prepaid scheme be treated as commission to
attract the TDS provisions under section 194H?
Vodafone Essar Cellular Ltd. v. ACIT (TDS) (2011) 332 ITR 255 (Kerala)
On this issue, the Kerala High Court observed that it was the SIM card which linked the
mobile subscriber to the assessee`s network. Therefore, supply of SIM card by the
assessee-telecom company was only for the purpose of rendering continued services to
the subscriber of the mobile phone. The position was the same so far as recharge
coupons or e-topups were concerned which were only air time charges collected from the
subscribers in advance under a prepaid scheme.
There was no sale of any goods involved as claimed by the assessee and the entire
charges collected by the assessee from the distributors at the time of delivery of SIM
cards or recharge coupons were only for rendering services to ultimate subscribers. The
assessee was accountable to the subscribers for failure to render prompt services
pursuant to connections given by the distributor.
Therefore, the distributor only acted as a middleman on behalf of the assessee for
procuring and retaining customers and therefore, the discount given to him was within the
meaning of commission under section 194H on which tax was deductible.
6. Can the difference between the published price and the minimumfixed commercial
price be treated as additional special commission in the hands of the agents of an
airline company to attract TDS provisions under section 194H, where the airline
company has no information about the exact rate at which tickets are ultimately
sold by the agents?
CIT v. Qatar Airways (2011) 332 ITR 253 (Bom.)
In this case, the airline company sold tickets to the agents at a minimum fixed
commercial price. The agents were permitted to sell the tickets at a higher price,
however, up to the maximum of published price. Commission at the rate of 9% of
published price was payable to the agents of the airline company, on which tax was
deducted under section 194H. The issue under consideration is whether the difference
between the published price and the minimum fixed commercial price amounts to
additional special commission in the hands of the agents to attract the provisions of
section 194H.
On this issue, the Bombay High Court observed that the difference between the
published price and minimum fixed commercial price cannot be taken as additional
special commission in the hands of the agents, since the published price was the
maximum price and airline company had granted permission to the agents to sell the
tickets at a price lower than the published price. In order to deduct tax at source, the
exact income in the hands of the agents must necessarily be ascertainable by the airline
company. However, the airline company would have no information about the exact rate
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at which the tickets were ultimately sold by its agents, since the agents had been given
discretion to sell the tickets at any rate between the minimum fixed commercial price and
the published price. It would be impracticable and unreasonable to expect the airline
company to get a feedback from its numerous agents in respect of each ticket sold.
Thus, tax at source was not deductible on the difference between the actual sale price
and the minimum fixed commercial price, even though the amount earned by the agent
over and above minimum fixed commercial price would be taxable as income in his
hands.
Note - It may be noted that in the case of CIT v. Singapore Airlines Ltd. (2009) 319 ITR 29,
the billing analysis statement clearly indicated the extra commission in the formof special
or supplementary commission that was paid to the travel agent with reference to the deal
code. Therefore, in that case, the Delhi High Court, held that the supplementary
commission in the hands of the agent was ascertainable by the airline company and hence
the airline company was liable to deduct tax at source on the same under section 194H.
7. Whether retention of a percentage of advertising charges collected fromcustomers
by the advertising agencies for payment to Doordarshan for telecasting
advertisements would attract the provisions of tax deduction at source under
section 194H?
CIT v. Director, Prasar Bharti (2010) 325 ITR 205 (Ker)
Relevant section: 194H
Prasar Bharti is a fully owned Government of India undertaking engaged in telecast of
news, sports, entertainment, cinema and other programmes. The major source of its
revenue is from advertisements, which were canvassed through agents appointed by
Doordarshan under the agreement with them. The advertisement charges were
recovered from the customers by the advertisement agencies in accordance with the
tariff prescribed by Doordarshan and incorporated in the agreement between the parties.
There was a provision in the agreement permitting advertising agencies to retain 15% of
the advertising charges payable by them to Doordarshan towards commission from out of
the charges received for advertising services from customers.
The issue under consideration is whether retention of 15% of advertising charges by the
advertising agency is in the nature of commission to attract the provisions of tax
deduction at source under section 194H. It was contended that the agreement between
Prasar Bharti and the advertising agency is not an agency but is a principal to principal
agreement of sharing advertisement charges and therefore, the provisions for deduction
of tax at source under section 194H would not get attracted in this case.
In this context attention was invited to a clause of the agreement between the parties
which reads as follows
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Agency agrees to pay the TDS/income-tax liability as applicable under the income-tax
law on the discount retained by him. For this purpose, the agency agrees to make
payment to Doordarshan Commercial Service by means of cheque/demand draft for the
TDS on 15% discount retained by them. This cheque/demand draft will be drawn
separately and should not be included in the telecast fees/advertisement charges.
The above provision makes it clear that the advertising agency clearly understood the
agreement as an agency agreement and the commission payable by Prasar Bharati to
such agency is subject to tax deduction at source under the Income-tax Act, 1961. The
permission granted by Doordarshan under the agreement to the agencies to retain
15% out of the advertisement charges collected by themfromthe customers
amounts to payment of commission by Doordarshan to agents, which is subject to
deduction of tax at source under section 194H.
It is clear from section 194H that tax has to be deducted at the time of credit of such sum to the
account of the payee or at the time of payment of such income in cash or by the issue of cheque
or draft or any other mode, whichever is earlier.
When the agent pays 85% of the advertisement charges collected from the customer, the agent
simultaneously gets paid commission of 15%, which he is free to appropriate as his income.
TDS on commission charges of 15% has to be paid to the Income-tax Department with
reference to the date on which 85% of the advertisement charges are received from the agent.
8. In respect of a co-owned property, would the threshold limit mentioned in section
194-I for non-deduction of tax at source apply for each co-owner separately or is it
to be considered for the complete amount of rent paid to attract liability to deduct
tax at source?
CIT v. Senior Manager, SBI (2012) 206 Taxman 607 (All.)
In the present case, the assessee was paying rent for the leased premises occupied. The
said premise was co-owned and the share of each co-owner was definite and
ascertainable. Also, the assessee made payment to each co-owner separately by way of
cheque. The assessee did not deduct tax at source under section 194-I stipulating that
the payment made to each co-owner was less than the minimum threshold mentioned in
the said section and therefore, no liability to deduct tax at source on the rent so paid is
attracted, though the whole rent taken together exceeds the said threshold limit.
The Revenue contended that since the premises let out to the assessee had not been
divided/partitioned by metes and bounds, it cannot be said that any specified portion let
out to the assessee was owned by a particular person. Therefore, the assessee had to
deduct tax at source on the rent so paid assessing the co-owners as association of
persons and the threshold limit mentioned in section 194-I was to be seen in respect of
the entire rent amount. Hence, the Revenue was of the view that assessee was liable to
deduct tax on the payment of rent and interest would be leviable on failure to deduct
such tax under section 201.
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Considering the above mentioned facts, the Allahabad High Court held that, since the share
of each co-owner is definite and ascertainable, they cannot be assessed as an association of
persons as per section 26. The income from such property is to be assessed in the individual
hands of the co-owners. Therefore, it is not necessary that there should be a physical division
of the property by metes and bounds to attract the provisions of section 26.
Therefore, in the present case, since the payment of rent is made to each co-owner by
way of separate cheque and their share is definite, the threshold limit mentioned in
section 194-I has to be seen separately for each co-owner. Hence, the assessee would
not be liable to deduct tax on the same and no interest under section 201 is leviable.
9. What is the nature of landing and parking charges paid by an airline company to
the Airports Authority of India and is tax required to be deducted at source in
respect thereof?
CIT v. J apan Airlines Co. Ltd. (2010) 325 ITR 298 (Del.)
On this issue, the Delhi High Court referred to the case of United Airlines v. CIT (2006)
287 ITR 281, wherein the issue arose as to whether landing and parking charges could
be deemed as rent under section 194-I. The Court observed that rent as defined in the
said provision had a wider meaning than rent in common parlance. It included any
agreement or arrangement for use of land.
The Court further observed that when the wheels of the aircraft coming into an airport
touch the surface of the airfield, use of the land of the airport immediately begins.
Similarly, for parking the aircraft in that airport, again, there is use of the land. Therefore,
the landing and parking fee were definitely rent within the meaning of the provisions of
section 194-I as they were payments for the use of the land of the airport.
Note - The Madras High Court in CIT v. Singapore Airlines Ltd. (2012) 209 Taxman
581 (Mad.), expressed a contrary view on the said issue. The Court has observed that
payment made for the use of any land or building and the land appurtenant thereto under
a lease or sub-lease or tenancy or under any agreement or arrangement with reference
to the use of the land, would be "rent" as per Explanation to section 194-I. Therefore,
only if the agreement or arrangement has the characteristics of lease or sub-lease or
tenancy for systematic use of the land, the charges levied would fall for consideration
under the definition of 'rent' for the purpose of section 194-I.
The principles guiding the charges on landing and take-off show that the charges are with
reference to the number of facilities provided by the Airport Authority of India in
compliance with the international protocols and the charges are not made for any
specified land usage or area allotted. The charges are governed by various
considerations on offering facilities to meet the requirement of passengers safety and on
safe landing and parking of the aircraft. Depending on the traffic, there is a shared use of
the airfield by the airlines. Thus, the charges levied are, at the best, in the nature of fee
for the services offered rather than in the nature of rent for the use of the land.
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Therefore, mere use of the land for landing and the payment charged, which is not only
for the use of the land, but for maintenance of the various services, including the
technical services involving navigation, would not automatically bring the transaction and
the charges within the meaning of either lease or sub-lease or tenancy or any other
agreement or arrangement of the nature of lease or tenancy so that the charges would
fall within the meaning of rent as appearing in Explanation to section 194-I.
The High Court observed that use of the runway by an aircraft cannot be different fromthe
analogy of a road used by any vehicle or any other formof transport. If the use of tarmac
of airport could be characterized as use of land, the use of a road too would be a use of
land. Thus, going by the nature of services offered by the Airport Authority in respect of
landing and parking charges, collected fromthe assessee, there is no ground to accept
that the payment would fit in with the definition of rent as given under section 194-I.
Therefore, the charges would get attracted under the provisions of section 194C.
10. Can the payment made by an assessee engaged in transportation of building
material and transportation of goods to contractors for hiring dumpers, be treated
as rent for machinery or equipment to attract provisions of tax deduction at source
under section 194-I?
CIT (TDS) v. Shree Mahalaxmi Transport Co. (2011) 339 ITR 484 (Guj.)
In this case, the assessee was engaged in the business of transportation of building
material, salt, black trap, iron, etc. During the relevant previous year, the assessee made
payment for hiring of dumpers and deducted tax at source at the rate under section 194C
applicable for sub-contracts which, according to the Assessing Officer, was not correct as
the assessee had taken dumpers on hire and such payments were governed under
section 194-I. The Assessing Officer, accordingly, held that the assessee had short
deducted tax at source and passed an order under section 201(1) holding the assessee
to be an assessee-in-default.
The High Court observed that the assessee had given contracts to the parties for the
transportation of goods and had not taken machinery and equipment on rent. The Court
observed that the transactions being in the nature of contracts for shifting of goods from
one place to another would be covered as works contracts, thereby attracting the
provisions of section 194C.
Since the assessee had given sub-contracts for transportation of goods and not for the
renting out of machinery or equipment, such payments could not be termed as rent paid
for the use of machinery and the provisions of section 194-I would, therefore, not be
applicable.
Note - Similar ruling was pronounced by the Gujarat High Court on an identical issue in
CIT (TDS) v. SwayamShipping Services P. Ltd. (2011) 339 ITR 647.
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11. Can the interest under sections 234B and 234C, be levied on the basis of interest
calculation given in the computation sheet annexed to the assessment order,
though the direction to charge such interest is not mentioned in the assessment
order?
CIT v. Assam Mineral Development Corporation Ltd. (2010) 320 ITR 149 (Gau.)
The Assessing Officer determined the total income of the assessee for the year in
question and issued an order. No specific order levying interest was recorded by the
Assessing Officer. However, in the computation sheet annexed to the assessment order,
interest under 234B and 234C was computed while determining the total sum payable by
the assessee. On appeal the Commissioner of Income-tax (Appeals) deleted the interest
charged under sections 234B and 234C.
The High Court held that, as per the judgment of the Supreme Court in case of CIT v.
AnjumM. H. Ghaswala (2001) 252 ITR 1, the interest leviable under sections 234B and
234C is mandatory in nature. The computation sheet in the form prescribed, signed or
initialed by the Assessing Officer, is an order in writing determining the tax payable within
the meaning of section 143(3). It is an integral part of the assessment order. Hence, the
levy of interest and the basis for arriving at the quantum thereof have been explicitly
indicated in the computation sheet and therefore, such interest has to be paid.
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WEALTH TAX

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17
WEALTH TAX
1. Whether the best judgment assessment order passed without giving the assessee
an opportunity of being heard is valid in a case where the notice under section
16(4) has already been given?
CWT v. Motor and General Finance Limited (2011) 332 ITR 1 (Delhi)
In the present case, the assessee did not file the wealth-tax return under section 14(1).
The Assessing Officer issued a notice to the assessee under section 16(4), calling upon
it to furnish the return. On the failure of the assessee to comply with the terms of the
notice issued, the Assessing Officer proceeded to make the assessment to the best of
his judgement without issue of any further notice under section 16(5). The assessee
questioned the validity of the assessment done on the ground that the mandatory notice
under section 16(5), giving opportunity of being heard to the assessee, was not issued by
the Assessing Officer.
On the above issue the Delhi High Court held that, as per section 16(5) the Assessing
Officer can resort to making best judgment assessment, after giving an opportunity of
being heard to the assessee by issue of notice, in case -
(a) where a person fails to make the return under section 14(1) or under section 15, or
(b) where he fails to comply with all the terms of notice issued under section 16(2) or
section 16(4).
Further, according to the second proviso to section 16(5), no notice or opportunity of
being heard is required where a notice under section 16(4) has been issued prior to the
making of the best judgment assessment.
In the present case, since the Assessing Officer has duly served the notice under section
16(4) on the assessee upon failure of the assessee to file the wealth-tax return, no
separate notice under section 16(5) giving opportunity of being heard is required to be
issued before making a best judgment assessment.
Note - As per section 16(5), notice giving opportunity of being heard has to be
mandatorily to be issued before making the best judgment assessment by the Assessing
Officer in a case where the assessee has not filed the wealth-tax return under section
14(1) or section 15.
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However, in the case discussed above, though the assessee has not filed the return
under section 14(1), it was not necessary for the Assessing Officer to issue the notice
under section 16(5), for assessing the wealth of the assessee to the best of his judgment,
since he has already issued notice under section 16(4) requiring the assessee to furnish
the wealth-tax return. Therefore in this case, the second proviso to section 16(5) comes
into operation and no further notice or opportunity to be heard is required to be given to
the assessee.
2. Is wealth-tax leviable on the value of house under construction, where the
construction was still incomplete on the relevant valuation date?
CIT v. Smt. Neena J ain (2011) 330 ITR 157 (P & H)
On this issue, the Revenue contended that the incomplete house of the assessee fell
within the purview of assets in section 2(ea) of the Wealth-tax Act, 1957 and it was liable
to wealth-tax. Consequently, the value of the plot and investment of assessees share in
construction of the residential house was added and tax was, accordingly assessed.
The High Court opined that the words any building could not be read in isolation and
had to be harmoniously construed with the remaining portion of section 2(ea) i.e.,
whether the building was used for residential or commercial purposes or for the purpose
of maintaining a guest house, because an incomplete building could not possibly either
be used for residential or commercial purposes or for the purposes of maintaining a guest
house. Therefore, the word building has to be interpreted to mean a completely built
structure having a roof, dwelling place, walls, doors, windows, electric and sanitary
fittings etc.
In this case, the assessee was constructing the building after obtaining sanction from the
appropriate authorities. Explanation 1(b) under section 2(ea) defining urban land for
levy of wealth-tax, specifically excludes from its scope, the land occupied by any building
which has been constructed with the approval of the appropriate authority.
Therefore, the incomplete building of the assessee neither fell within the meaning of a
building nor within the purview of urban land under section 2(ea). Consequently, the
incomplete building is not an asset chargeable to wealth-tax.

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CENTRAL
EXCISE


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1
BASIC CONCEPTS
1. Does the process of washing of iron ore for removal of foreign materials fromsuch
ore amount to manufacture?
Commissioner v. Steel Authority of India Ltd. 2012 (283) E.L.T. A112 (S.C.)
Facts of the case: The assessee was mining iron ore from mines by fully mechanized
system. It excavated iron ores from mines and then subjected them to process of
crushing, grinding and screening and washing with a view to remove foreign materials.
Point of dispute: The Department was of the view that the mined iron ore on being
subjected to crushing, grinding, screening and washing becomes iron ore concentrate
which was covered by Heading 26.01 of the Central Excise Tariff (iron ore and
concentrates, including roasted iron by rites). It had relied on the Explanatory Notes of
HSN according to which the term concentrates applies to ores which have had part or
all of the foreign matter removed by special treatment.
The assessee contended that the processes undertaken by them did not convert iron ore
into iron ore concentrates as no special treatments were undertaken by them nor the iron
content increased after the processes undertaken by them. It was the contention of the
assessee that the activities of crushing, grinding, screening and washing did not amount to
manufacture of any goods attracting levy of central excise duty.
Observations: The Tribunal, when the matter was brought before it, decided the case in
favour of assessee and against the Revenue. While deciding the case, the Tribunal
reiterated the well settled law that an activity or process in order to amount to
manufacture, must lead to emergence of a new commercial product, different from the
one with which the process started. It did not agree with the Revenues contention that
the processes undertaken by the assessee lead to emergence of a new and different
article on which central excise duty can be levied and collected. The Tribunal clarified
that even according to HSN the term concentrates applied to ores which have had part
or all of the foreign matters removed either because such foreign matter might hamper
subsequent metallurgical operations or for economical transport.
Decision of the case: The Tribunal held that removing of foreign matters would not, in
the present case, bring into existence a new and different article having a distinctive
name, character or use. The use of iron ore as mined or iron ore after the process
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undertaken by the assessee remained the same; that is, to be used in metallurgical
industry for the extraction of metals.
The said decision of the Tribunal has been affirmed by the Supreme Court in the instant
case.
2. Whether the addition and mixing of polymers and additives to base bitumen with a
viewto improve its quality, amounts to manufacture?
CCE v. Osnar Chemical Pvt. Ltd. 2012 (276) E.L.T. 162 (S.C.)
Facts of the Case: Osnar Chemical Pvt. Ltd. (Osnar) was engaged in the supply of
Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB). It
entered into a contract with M/s. Afcons Infrastructure Ltd. (Afcons) for supply of PMB at
their work site. As per the agreement, raw materials-base bitumen and certain additives
were to be supplied by Afcons to Osnar directly at the site.
At site, Osnar, in its mobile polymer modification plant, was required to heat the bitumen
at a certain temperature to which polymer and additives were added under constant
agitation for a specified period. Thereafter, stone aggregates were mixed with this hot
agitated bitumen. The resultant product-PMB was a superior quality binder with
enhanced softening point, penetration, ductility, viscosity and elastic recovery.
Revenue contended that the aforesaid process carried out by the assessee (Osnar) at
the work site amounted to manufacture of PMB in terms of section 2(f) of the Central
Excise Act, 1944 because the end products [PMB and CRMB] were different from
bitumen. Further, bitumen and polymer were classifiable under tariff entries different from
the finished products-PMB and CRMB. Moreover, one of the essential conditions for the
purpose of levy of excise duty i.e. the test of marketability was satisfied because PMB
and CRMB were commercially known in the market for being bought and sold.
Point of Dispute: Whether the addition and mixing of polymers and additives to base
bitumen results in the manufacture of a new marketable commodity and as such exigible
to excise duty?
Observations of the Court: The Supreme Court opined that manufacture could be said
to have taken place only when there was transformation of raw materials into a new and
different article having a different identity, characteristic and use. It was a well settled
principle that mere improvement in quality did not amount to manufacture. It was only
when the change or a series of changes take the commodity to a point where
commercially it could no longer be regarded as the original commodity but was instead
recognized as a new and distinct article that manufacture could be said to have taken
place. The Court noted that the said process merely resulted in the improvement of
quality of bitumen. Bitumen remained bitumen. There was no change in the
characteristics or identity of bitumen and only its grade or quality was improved. The
said process did not result in transformation of bitumen into a new product having a
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different identity, characteristic and use. The end use also remained the same, namely
mixing of aggregates for constructing the roads.
The Apex Court further noted that as per section 2(f)(ii) of the Central Excise Act, 1944,
the expression manufacture includes any process which is specified in relation to any
goods in the Section or Chapter Notes of First Schedule to the Tariff Act. Thus, it is
manifest that in order to bring a process within the ambit of said clause, the same is
required to be recognised by the legislature as manufacture in relation to such goods in
the Section notes or Chapter notes of the First Schedule to the Tariff Act. However, a
plain reading of the Schedule to the Act made it clear that the process carried out by the
assessee had nowhere been specified in the Section notes or Chapter notes so as to
indicate that the said process amounts to manufacture.
Decision of the case: In the light of the above discussion, the Supreme Court held that
since (i) the said process merely resulted in the improvement of quality of bitumen and
no distinct commodity emerged, and (ii) the process carried out by the assessee had
nowhere been specified in the Section notes or Chapter notes of the First Schedule, the
process of mixing polymers and additives with bitumen did not amount to manufacture.
3. Whether the process of generation of metal scrap or waste during the repair of
worn out machineries/parts of cement manufacturing plant amounts to
manufacture?
GrasimIndustries Ltd. v. UOI 2011 (273) E.L.T. 10 (S.C.)
Facts of the case: The assessee was the manufacturer of the white cement. He repaired
his worn out machineries/parts of the cement manufacturing plant at its workshop such
as damaged roller, shafts and coupling with the help of welding electrodes, mild steel,
cutting tools, M.S. Angles, M.S. Channels, M.S. Beams, etc. In this process of repair,
M.S. scrap and Iron scrap were generated. The assessee cleared this metal scrap and
waste without paying any excise duty. The Department issued a show cause notice
demanding duty on the said waste contending that the process of generation of scrap
and waste amounted to manufacture in terms of section 2(f) of the Central Excise Act.
Observations of the Court: The Apex Court observed that manufacture in terms of
section 2(f), inter alia, includes any process incidental or ancillary to the completion of
the manufactured product. This any process can be a process in manufacture or
process in relation to manufacture of the end product, which involves bringing some kind
of change to the raw material at various stages by different operations. The process in
relation to manufacture means a process which is so integrally connected to the
manufacturing of the end product without which, the manufacture of the end product
would be impossible or commercially inexpedient.
However, in the present case, it is clear that the process of repair and maintenance of
the machinery of the cement manufacturing plant, in which M.S. scrap and Iron scrap
arise, had no contribution or effect on the process of manufacturing of the cement, (the
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end product). The repairing activity can never be called as a part of manufacturing
activity in relation to production of end product. Therefore, the M.S. scrap and Iron scrap
could not be said to be a by-product of the final product. At the best, it was the by-
product of the repairing process.
Decision of the case: The Supreme Court held that the generation of metal scrap or
waste during the repair of the worn out machineries/parts of cement manufacturing plant
did not amount to manufacture.
4. Are the physician samples excisable goods in viewof the fact that they are
statutorily prohibited frombeing sold?
Medley Pharmaceuticals Ltd. v. CCE & C., Daman 2011 (263) E.L.T. 641 (S.C.)
Point of dispute: The question which arose for consideration was whether physician
samples of patent and proprietary medicines intended for distribution to medical
practitioner as free samples, satisfied the test of marketability. The appellant contended
that since the sale of the physician samples was prohibited under the Drugs and
Cosmetics Act, 1940 and the rules made thereunder, the same could not be considered
to be marketable.
Observations of the Court: Supreme Court observed that merely because a product
was statutorily prohibited from being sold, would not mean that the product was not
capable of being sold. Physician sample was capable of being sold in open market.
Moreover, the Drugs and Cosmetics Act, 1940 (Drugs Act) and the Central Excise Act,
1944 operated in different fields. The restrictions imposed under Drugs Act could not
lead to non-levy of excise duty under the Central Excise Act thereby causing revenue
loss. Prohibition on sale of physician samples under the Drugs Act did not have any
bearing or effect on levy of excise duty.
Decision of the case: The Court inferred that merely because a product was statutorily
prohibited from being sold, would not mean that the product was not capable of being
sold. Since physician sample was capable of being sold in open market, the physician
samples were excisable goods and were liable to excise duty.
Note: This case was affirmed in case of Medley Pharmaceuticals Ltd. v. Commissioner -
2011 (269) E.L.T. A20 (S.C.).
5. Whether assembling of the testing equipments for testing the final product in the
factory amounts to manufacture?
Usha Rectifier Corpn. (I) Ltd. v. CCEx., New Delhi 2011 (263) E.L.T. 655 (S.C.)
Facts of the case: The appellant was a manufacturer of electronic transformers, semi-
conductor devices and other electrical and electronics equipments. During the course of
such manufacture, the appellant also manufactured machinery in the nature of testing
equipments to test their final products.
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Balance sheet of the appellant stated that the testing equipments had been capitalised.
The said position was further substantiated in the Directors report wherein it was
mentioned that during the year, the company developed a large number of testing
equipments on its own.
However, the assessee contended that such items were assembled in the factory for
purely research and development purposes, but research being unsuccessful, same were
dismantled. Hence, it would not amount to manufacture.
The appellant further submitted that the said project was undertaken only to avoid
importing of such equipment from the developed countries with a view to save foreign
exchange.
Decision of the case: The Supreme Court observed that once the appellant had
themselves made admission regarding the development of testing equipments in their
own Balance Sheet, which was further substantiated in the Directors report, it could not
make contrary submissions later on. Moreover, assessees stand that testing
equipments were developed in the factory to avoid importing of such equipments with a
view to save foreign exchange, confirmed that such equipments were saleable and
marketable. Hence, the Apex Court held that duty was payable on such testing
equipments.
6. Can a product with short shelf-life be marketable?
Nicholas Piramal India Ltd. v. CCEx., Mumbai 2010 (260) E.L.T. 338 (S.C.)
Facts of the case: In the instant case, the product had a shelf-life of 2 to 3 days. The
appellant contended that since the product did not have shelf-life, it did not satisfy the
test of marketability.
Decision of the case: The Supreme Court ruled that short shelf-life could not be
equated with no shelf-life and would not ipso facto mean that it could not be marketed. A
shelf-life of 2 to 3 days was sufficiently long enough for a product to be commercially
marketable. Shelf-life of a product would not be a relevant factor to test the marketability
of a product unless it was shown that the product had absolutely no shelf-life or the shelf-
life of the product was such that it was not capable of being brought or sold during that
shelf-life.
7. Whether the theoretical possibility of product being sold is sufficient to establish
the marketability of a product?
Bata India Ltd. v. CCE 2010 (252) ELT 492 (SC)
Facts of the case: The assessee was a well known manufacturer of footwear. During
the manufacture of foot wear, it manufactured a product called double textured fabric
which was captively used as upper material in the manufacture of foot wear.
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Points of dispute: Revenue contended that since this product emerged as a distinct
product with specific properties and character other than that of original fabric used as
input and the said product was marketable, the assessee was liable to pay duty on it.
However, assessee contended that the intermediate product was not marketable. It
produced the certificate from the technical authorities to prove that the product in
question had no commercial identity.
Decision of the case: The Apex Court observed that marketability is essentially a
question of fact to be decided on the basis of facts of each case and there can be no
generalization. The test of marketability is that the product which is made liable to duty
must be marketable in the condition in which it emerges. The mere theoretical
possibility of the product being sold is not sufficient; there has to be sufficient
proof that the product is commercially known. Theory and practice will not go
together when one examines the marketability of a product.
The Supreme Court ruled that the burden to show that the product is marketable or
capable of being bought or sold is entirely on the Revenue. Without proof of
marketability, the intermediate product would not be goods much less excisable goods.
Revenue, in the given case, had not produced any material before the Tribunal to show
that the product was either being marketed or capable of being marketed, but expressed
its opinion unsupported by any relevant materials. Thus, the intermediate product was
not marketable and not liable to excise duty.
Note: The above judgment is in conformity with the explanation to section 2(d) of the
Central Excise Act, 1944.
8. Whether the machine which is not assimilated in permanent structure would be
considered to be moveableso as to be dutiable under the Central Excise Act?
CCE v. Solid & Correct Engineering Works and Ors 2010 (252) ELT 481 (SC)
Facts of the case: The assessee was engaged in the manufacture of asphalt batch mix
and drum mix/hot mix plant by assembling and installing its parts and components. The
Revenue contended that setting up of such plant by using duty paid components
amounts to manufacture of excisable goods as the assembled plant was not an
immovable property.
Decision of the case: The Court observed that as per the assessee, the machine was
fixed by nuts and bolts to a foundation not because the intention was to permanently
attach it to the earth, but because a foundation was necessary to provide a wobble free
operation to the machine. It opined that an attachment without necessary intent of
making the same permanent cannot constitute permanent fixing, embedding or
attachment in the sense that would make the machine a part and parcel of the earth
permanently.
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Hence, the Supreme Court held that the plants in question were not immovable property
so as to be immune from the levy of excise duty. Consequently, duty would be levied on
them.
9. Does the process of preparation of tarpaulin made-ups after cutting and stitching
the tarpaulin fabric and fixing the eye-lets amount to manufacture?
CCE v. Tarpaulin International 2010 (256) E.L.T. 481 (S.C.)
Facts of the case: The assessee was engaged in manufacture of tarpaulin made-ups.
The tarpaulin made-ups were prepared by cutting and stitching the tarpaulin cloth into
various sizes and thereafter fixing the eye-lets. Department viewed that the tarpaulin
made-ups so prepared amounted to manufacture and, hence, they were exigible to duty.
However, the assessee stated that the process of mere cutting, stitching and putting
eyelets did not amount to manufacture and hence, the Department could not levy excise
duty on tarpaulin made-ups.
Decision of the case: The Apex Court opined that stitching of tarpaulin sheets and
making eyelets did not change basic characteristic of the rawmaterial and end
product. The process did not bring into existence a new and distinct product with total
transformation in the original commodity. The original material used i.e., the tarpaulin,
was still called tarpaulin made-ups even after undergoing the said process. Hence, it
could not be said that the process was a manufacturing process. Therefore, there could
be no levy of central excise duty on the tarpaulin made-ups.
10. Does the process of cutting and embossing aluminiumfoil for packing the
cigarettes amount to manufacture?
CCE v. GTC Industries Ltd. 2011 (266) E.L.T. 160 (Bom.)
Facts of the case: A roll of aluminium foil was cut horizontally to make separate pieces
of the foil and word PULL was embossed on it. Thereafter, fixed number cigarettes
were wrapped in it. Aluminium foil, being resistant to moisture, was used as a protector
for the cigarettes and to keep them dry.
Revenue submitted that the process of cutting and embossing aluminium foil amounted
to manufacture. Since the aluminium foil was used as a shell for cigarettes to protect
them from moisture; the nature, form and purpose of foil were changed.
Decision of the case: The High Court pronounced that cutting and embossing did not
transform aluminium foil into distinct and identifiable commodity. It did not change the
nature and substance of foil. The said process did not render any marketable value to
the foil, but only made it usable for packing. There were no records to suggest that cut to
shape/embossed aluminium foils used for packing cigarettes were distinct marketable
commodity. Hence, the High Court held that the process did not amount to manufacture
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as per section 2(f) of the Central Excise Act, 1944. Only the process which produces
distinct and identifiable commodity with marketable value can be called manufacture.
11. Does the activity of packing of imported compact discs in a jewel box along with
inlay card amount to manufacture?
CCE v. Sony Music Entertainment (I) Pvt. Ltd. 2010 (249) E.L.T. 341 (Bom.)
Facts of the case: The appellant imported recorded audio and video discs in boxes of
50 and packed each individual disc in transparent plastic cases known as jewel boxes.
An inlay card containing the details of the content of the compact disc was also placed in
the jewel box. The whole thing was then shrink wrapped and sold in wholesale. The
Department contended that the said process amounted to manufacture.
Decision of the case: The High Court observed that none of the activity that the
assessee undertook involved any process on the compact discs that were imported. It
held that the Tribunal rightly concluded that the activities carried out by the
respondent did not amount to manufacture since the compact disc had been
complete and finished when imported by the assessee. They had been imported in
finished and completed form.
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2
CLASSIFICATION OF EXCISABLE GOODS
1. Whether a heading classifying goods according to their composition is preferred
over a specific heading?
Commissioner of Central Excise, Bhopal v. Minwool Rock Fibres Ltd. 2012 (278)
E.L.T. 581 (S.C.)
Facts of the Case: The assessee started manufacturing rockwool and slagwool using
more than 25% by weight of blast furnace slag in 1993 and classified them under Central
Excise Tariff sub-heading 6803.00 chargeable at the rate of 18% (i.e. Slagwool,
Rockwool and similar mineral wools). However, another sub-heading 6807.10 was
introduced in the Central Excise Tariff subsequently vide one of the Union Budgets
covering Goods having more than 25% by weight blast furnace slag chargeable at the
rate of 8%. Accordingly, the assessee classified the goods under new sub-heading.
Point of Dispute: The Revenue contended that when there was a specific sub-heading,
i.e. 6803.00 wherein the goods, such as Slagwool, Rockwool and similar wools were
enumerated, that entry was required to be applied and not Chapter sub-heading 6807.10.
Observations of the Court: The Supreme Court held that there was a specific entry
which speaks of Slagwool and Rockwool under sub-heading 6803.00 chargeable at 18%,
but there was yet another entry which was consciously introduced by the Legislature
under sub-heading 6807.10 chargeable at 8%, which speaks of goods in which
Rockwool, Slag wool and products thereof were manufactured by use of more than 25%
by weight of blast furnace slag.
It was not in dispute that the goods in question were those goods in which more than
25% by weight of one or more of red mud, press mud or blast furnace slag was used. If
that be the case, then, in a classification dispute, an entry which was beneficial to the
assessee was required to be applied. Further, tariff heading specifying goods according
to its composition should be preferred over the specific heading. Sub-heading 6807.10
was specific to the goods in which more than 25% by weight, red mud, press mud or
blast furnace slag was used as it was based entirely on material used or composition of
goods.
Decision of the Case: Therefore, the Court opined that the goods in issue were
appropriately classifiable under Sub-heading 6807.10 of the Tariff.
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Note: The description and rate of above relevant entries under sub-heading 6803.00 and
sub-heading 6807.10 of the Tariff at the relevant time was as given below:
Heading Sub-
Heading
Description of Goods Rate of Duty
(1) (2) (3) (4)
6803 6803.00 Slagwool, Rockwool and similar mineral wools 18%
6807 Goods, in which more than 25% by weight of
red mud, press mud or blast furnace slag or one
or more of these materials have been used; all
other articles of stone, plaster, cement,
asbestos, mica or of similar materials, not
elsewhere specified or included.

6807.10 Goods, in which more than 25% by weight of
red mud, press mud or blast furnace slag or one
or more of these materials have been used.
8%
2. Whether antiseptic cleansing solution used for cleaning/ degerming or scrubbing
the skin of the patient before the operation can be classified as a medicament?
CCE v. Wockhardt Life Sciences Ltd. 2012 (277) E.L.T. 299 (S.C.)
Facts of the Case: The assessee manufactured Povidone Iodine Cleansing Solution
USP and Wokadine Surgical Scrub. The only difference between these two products was
that Wokadine was a branded product whereas Povidone Iodine Cleansing Solution was
a generic name. The products were antiseptic and used by the surgeons for cleaning or
de-germing their hands and scrubbing the surface of the skin of the patient before
operation.
Point of Dispute: The assessee classified its products under Chapter Heading 3003 as
medicaments. However, the Revenue contended that the said products were not
medicaments in terms of Chapter Note 2(i) of Chapter 30 of the Central Excise Tariff Act*
as it neither had Prophylactic nor Therapeutic usage. The Revenue said that in order
to qualify as a medicament, the goods must be capable of curing or preventing some
disease or ailment. It was the stand of the Department that since the assessees
products were essentially used as medical detergent, it would be classifiable under
Chapter Sub-heading 3402.90.
Observations of the Court: The Supreme Court observed that the factors to be
considered for the purpose of the classification of the goods are the composition, the
product literature, the label, the character of the product and the use to which the product
is put to. In the instant case, it is not in dispute that the product is used by the surgeons
for the purpose of cleaning or degerming their hands and scrubbing the surface of the
skin of the patient. The Apex Court, therefore, stated that the product is basically and
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primarily used for prophylactic purposes i.e., to prevent the infection or diseases, even
though the same contains very less quantity of the prophylactic ingredient.
Decision of the Case: The Apex Court held that the product in question can be safely
classified as a medicament which would fall under Chapter Heading 3003, a specific
entry and not under Chapter Sub-Heading 3402.90, a residuary entry.
*Note : Medicament means goods (other than foods or beverages such as dietetic,
diabetic or fortified foods, tonic beverages) not falling within heading 30.02 or 30.04
which are either:
(a) products comprising two or more constituents which have been mixed or
compounded together for therapeutic or prophylactic uses; or
(b) unmixed products suitable for such uses put up in measured doses or in packing for
retail sale or for use in hospitals.
Further, the Tariff Items under chapter heading 3003 and chapter sub-heading 3402.90,
at the relevant time were as follows:
Heading
No.
Sub-heading
No.
Description of goods Rate of
duty
30.03 Medicaments (including veterinary
medicaments)

3003.10 Patent or proprietary medicaments,
other than those medicaments which are
exclusively Ayurvedic, Unani, Siddha,
Homeopathic or Bio-chemic.
15%
3003.20 Medicaments (other than patent or
proprietary) other than those which are
exclusively used in Ayurvedic, Unani,
Siddha, Homeopathic or Bio-chemic
systems. Medicaments, including those
in Ayurvedic, Unani, Siddha,
Homeopathic or Bio-chemic systems.
8%
34.02 Organic surface active agents (other
than soap): surface-active preparations,
washing preparations (including
auxiliary washing preparations and
cleaning preparation, whether or not
containing soap).

3402.90 Other 18%
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3. Can the soft serve served at McDonalds India be classified as ice cream for the
purpose of levying excise duty?
CCEx. v. Connaught Plaza Restaurant (Pvt) Ltd. 2012 (286) E.L.T. 321 (S.C.)
Facts of the case: McDonalds India [M/s Connaught Plaza Restaurant (Pvt) Ltd.]
manufactured and served soft serves dispensed through vending machines at its
restaurants. The Department raised a demand for the excise duty on the fast-food
restaurant chain. It contended that 'soft serve' was classifiable under Heading 21.05,
Sub-Heading 2105.00-ice cream and other edible ice, whether or not containing cocoa
and thus, would attract excise duty @ 16% plus an additional duty (applicable at the
relevant time). However, McDonalds India opposed the classification sought by the
Department and claimed that the soft serve was classifiable under Heading 04.04 as
other dairy produce chargeable to nil rate of duty. Hence, it was not required to pay
any duty.
Point of dispute: Revenue claimed that although ice-cream had not been defined
under Heading 21.05 or in any of the chapter notes of Chapter 21, soft serve was known
as ice-cream in common parlance. Therefore, soft serve must be classified in the
category of ice-cream under Heading 21.05 of the Tariff Act.
On the other hand, the assessee contended that soft serve must be classified under
Heading 04.04 as other dairy produce and not under Heading 21.05.
The Tribunal, rejecting the common parlance principle and considering the technical
meaning and specifications of the product ice cream, concluded that soft serve was
classifiable under Heading 2108.91 (edible preparations, not elsewhere specified or
included) and thus chargeable to nil rate of duty.
Observations of the Court: The Apex Court considered the various submissions of the
assessee as under:-
(i) The assessee quoted that as per the definition of ice cream under the Prevention
of Food Adulteration Act, 1955 (PFA), the milk fat content of ice-cream and softy
ice-cream shall not be less than 10%. Hence, if the soft serve, containing 5% milk
fat content is classified as ice-cream, it would make the assessee liable to
prosecution under the PFA.
The SC observed that the definition of one statute (PFA) having a different object,
purpose and scheme could not be applied mechanically to another statute (Central
Excise Act). The object of the Excise Act is to raise revenue whereas the provisions
of PFA are for ensuring quality control. Thus, the provisions of PFA have nothing to
do with the classification of goods subjected to excise duty under a particular tariff
entry.
(ii) The assessee submitted that soft serve could not be considered as ice-cream as
it was marketed by the assessee world over as soft serve.
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SC rejected this averment on the ground that the manner, in which a product might
be marketed by a manufacturer, did not necessarily play a decisive role in affecting
the commercial understanding of such a product. What matters was the way in
which the consumer perceived the product notwithstanding marketing strategies.
An average reasonable person who walked into a McDonalds outlet with the
intention of enjoying an ice-cream, softy or soft serve, could not be expected to
be aware of intricate details such as the percentage of milk fat content, milk non-
solid fats, stabilisers, emulsifiers or the manufacturing process, much less its
technical distinction from ice-cream.
(iii) The assessee pleaded that in the matters pertaining to classification of a
commodity, technical and scientific meaning of the product was to prevail over the
commercial parlance meaning.
The Apex Court observed that none of the terms in Heading 04.04, Heading 21.05
and Heading 2108.91 had been defined and no technical or scientific meanings had
been given in the chapter notes. Further, soft serve was also not defined in any of
the said chapters. Supreme Court, after considering various judgments, concluded
that in the absence of a statutory definition or technical description, interpretation
ought to be in accordance with common parlance principle and not according to
scientific and technical meanings.
(iv) The assessee contended that based on rule 3(a) of the General Rules of
Interpretation which stated that a specific entry should prevail over a general entry,
soft serve would fall under Heading 04.04 since it was a specific entry.
The Supreme Court rejecting this contention held that in the presence of Heading
21.05 (ice cream), ice cream could not be classified as a dairy product under
Heading 04.04. Heading 21.05 was clearly a specific entry.
Further, referring to a trade notice issued by the Mumbai Commissionerate relating to
classification of softy ice-cream being sold in restaurant etc. dispensed by vending
machine, the Apex Court observed that the said trade notice indicated the commercial
understanding of soft-serve as softy ice-cream.
Decision of the case: In the light of the aforesaid discussion, the Apex Court held that
soft serve was classifiable under Heading 21.05 as ice cream and not under Heading
04.04 as other dairy produce.
Note: The description and rate of the relevant entries during the period in question is
given below:
Heading Sub-
Heading
Description of Goods Rate of
Duty
(1) (2) (3) (4)
21.05 2105.00 Ice-creamand other edible ice, whether or 16%
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not containing cocoa
21.08 Edible preparations, not elsewhere
specified or included

2108.91 -Not bearing a brand name Nil
Chapter 4 Dairy Produce, etc.
Heading Sub-
Heading
Description of Goods Rate of
Duty
(1) (2) (3) (4)
04.04 Other dairy produce; Edible products of
animal origin, not elsewhere specified or
included
- Ghee :

0404.11 --Put up in unit containers and bearing a
brand name
Nil
0404.19 --Other Nil
0404.90 --Other Nil

Note The headings cited in the case laws mentioned above may not co-relate with the
headings of the present Excise Tariff as they relate to an earlier point of time.
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3
VALUATION OF EXCISABLE GOODS
1. In a case where a product is sold belowthe cost price for penetrating the market,
whether such price can be considered as transaction value?
CCEx., Mumbai v. Fiat India Pvt. Ltd. 2012 (283) E.L.T. 161 (S.C.)
Facts of the Case: The Fiat India Pvt. Ltd. (Fiat) was the manufacturer of motor cars.
They were selling Fiat UNO model cars below cost and were making losses in wholesale
trade. The purpose was penetration of market and competing with other manufacturers
of similar goods. The prices were not based on manufacturing cost and profit. The cost
of production of the cars was much more than their wholesale price, but they were being
sold at loss for a consideration. This was happening over the period of five years.
Point of Dispute: - The Department disputed that as the extra commercial consideration
was involved in this case, an additional consideration should be added to the price for the
purpose of duty.
Observations of the Court: The Supreme Court observed that as per section 4(1)(a) of
the Central Excise Act, 1944, duty is paid on the transaction value in a case where the
goods are sold by the assessee, for delivery at the time and place of the removal, the
assessee and the buyer of the goods are not related and the price is the sole
consideration for the sale. If any of these ingredients is missing, the price shall not be
considered as transaction value.
Supreme Court opined that there was an extra commercial consideration in artificially
depressing the price. Full commercial cost of manufacturing and selling was not reflected
in the price as it was deliberately kept below the cost of production. Thus, price could not
be considered as the sole consideration for sale. No prudent business person would
continuously suffer huge loss only to penetrate market; they are expected to act with
discretion to seek reasonable income, preserve capital and, in general, avoid speculative
investments. It is immaterial that the cars were not sold to related persons.
Decision of the Case: The Apex Court therefore held that, in the instant case, the
selling price could not be accepted as transaction value.
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2. Can the pre-delivery inspection (PDI) and free after sales services charges be
included in the transaction value when they are not charged by the assessee to the
buyer?
Tata Motors Ltd. v. UOI 2012 (286) E.L.T. 161 (Bom.)
Facts of the case: The petitioners-Tata Motors Ltd. were the manufacturers of cars.
They sold their cars to their subsidiary companies-M/s TMLD which in turn sold cars to
the dealers. The petitioners appointed various persons as dealers to sell the car in the
market. On selection of a person for being appointed as a dealer, an agreement was
entered into between the petitioners and the said dealer. The petitioners notified the
maximum amount for which the car could be sold by the dealer. The dealer paid to the
petitioners a particular price quoted by them. According to the petitioners, this price was
the assessable value and excise duty was paid on it. The amount charged by the dealer
to his customer minus the amount charged by the petitioners to such dealer was the
dealers margin.
Further, on account of the dealership agreement, the dealer was required to carry out Pre
Delivery Inspection (PDI) before the car was actually delivered to the customer. After the
car was delivered to the customer, the dealer was required to conduct specified number
of free services of the said car as set out in the Owners Manual [hereinafter referred to
as said services].
Moreover, the petitioners gave warranty to the customer provided the customer got the
car duly inspected as per the PDI requirements and also availed the said services. If a
particular customer did not get the PDI done or did not submit his car for said services,
he would not be able to get the benefit of terms of warranty.
Point of dispute: Revenue issued a show cause notice to the petitioners alleging that costs
incurred by the dealer towards PDI and said services was also includible in the assessable
value on account of Clause 7 of Circular No. 643/34/2002 dated 1st J uly, 2002.
However, the petitioners contended that Circular No. 643/34/2002-CX, dated 1-7-2002
and Circular No. 681/72/2002-CX, dated 12-12-2002 were contrary to the provisions of
section 4(1)(a) and section 4(3)(d) of the Central Excise Act, 1944. They further
submitted that the dealer had to incur the expenses to conduct PDI and said services
without reference to them. The petitioners did not reimburse such expenses incurred by
the dealer. They paid the excise duty on the amount charged by them to the dealer while
selling the car to the dealer.
Observations of the Court: The High Court, after considering the rival submissions
observed as follows:-
1. The High Court accepted the contention of the petitioners that it did not charge the
dealer for the expenses incurred by the dealer towards PDI and said services. It
further stated that when a car was sold by the petitioner to dealer, price was the
sole consideration and the petitioners and dealer were not related to each other.
Hence, since the requirements of section 4(1)(a) were being complied with, the
assessable value would be the transaction value [determined as per section
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4(3)(d)]. Accordingly, the expenses incurred for PDI and said services should not
be included in the transaction value of the car.
2. The High Court rejected the Revenues claim that the expenses incurred for PDI
and after sales services must be included in the transaction value for the reason
that the warranty given by the petitioners was linked with such expenses. The Court
observed that it only implied that petitioner would undertake the responsibility to
provide the benefit of warranty to customer only when the customer had availed PDI
and after sales services. However, it had no bearing on assessable value.
3. The High Court opined that in Clause 7 of Circular dated 1st July, 2002, reference
to rule 6 of the Central Excise (Determination of Price of Excisable Goods) Rules,
2000 was not correct. Valuation rules, in the first place, would not apply in the
instant case as this transaction did not fall within the ambit of section 4(1)(b)
because the transaction of sale of a car between the petitioners and the dealer was
governed by the provisions of section 4(1)(a). Further, it also opined that the
linkage of the expenses incurred for PDI and said services with expenses for
advertisement or publicity in the said circular was not correct.
4. The Court noted that the said circular wrongly held that in case where the assessee
(manufacturer) sold the motor vehicles to a dealer (buyer) at a given price and the
dealer in turn sold the said motor vehicles to a customer at a price with dealers
margin which included the PDI charges and after sales service charges, then, the
assessable value would include the PDI and after sales service charges even if they
were not been charged by the assessee (manufacturer) to the dealer. It was
contrary to the provisions of section 4(1)(a) read with section 4(3)(d).
Decision of the case: In the light of the above discussion, the High Court held that Clause
No. 7 of Circular dated 1st July, 2002 and Circular dated 12
th
December, 2002 (where it
confirms the earlier circular dated 1
st
July, 2002) were not in conformity with the provisions of
section 4(1)(a) read with section 4(3)(d) of the Central Excise Act, 1944. Further, as per
section 4(3)(d), the PDI and free after sales services charges could be included in the
transaction value only when they were charged by the assessee to the buyer.
Note: Clause 7 of Circular No. 643/34/2002 dated 01.07.2002 reads as follows:-
Point of doubt: What about the cost of after sales service charges and pre-delivery
inspection (PDI) charges, incurred by the dealer during the warranty period?
Clarification: Since these services are provided free by the dealer on behalf of the
assessee, the cost towards this is included in the dealers margin (or reimbursed to him).
This is one of the considerations for sale of the goods (motor vehicles, consumer items
etc.) to the dealer and will therefore be governed by Rule 6 of the Valuation Rules on the
same grounds as indicated in respect of Advertisement and Publicity charges. That is, in
such cases the after sales service charges and PDI charges will be included in the
assessable value.
Circular No. 681/72/2002-CX dated 12.12.2002, inter alia, affirms the aforesaid circular.
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4
CENVAT CREDIT
1. Whether CENVAT credit of the testing material can be allowed when the testing is
critical to ensure the marketability of the product?
Flex Engineering Ltd. v. Commissioner of Central Excise, U.P. 2012 (276) E.L.T. 153
(S.C.)
Facts of the Case: The assessee, a manufacturer was engaged in the manufacturing of
various types of packaging machines, marketed as Automatic Form Fill and Seal
Machines (F&S machines in short). The machines were made to order, in as much as
all the dimensions of the packaging/sealing pouches, for which the F&S machine is
required, are provided by the customer. The purchase order contained the following
inspection clause:
Inspection/trial will be carried out at your works in the presence of our engineer before
dispatch of equipment for the performance of the machine.
The testing material to be used was Flexible Laminated Plastic Film in roll form & Poly
Paper which were duty paid. As the machine ordered was customer specific, if after
inspection by the customer it was found deficient in respect of its operations for being
used for a particular specified packaging, it could not be delivered to the customer, till it
was re-adjusted and tuned to make it match with the required size of the pouches as per
the customers requirement. On completion of the above process and when the customer
was satisfied, the machine was declared as manufactured, ready for clearance.
Point of Dispute: The assessee claimed the CENVAT credit of the material used for
testing of the packaging machines. However, the Department contended that credit
could not be availed on such testing material and denied the CENVAT credit on the
same.
Observations of the Court: The Supreme Court observed that the process of
manufacture would not be complete if a product is not saleable as it would not be
marketable and the duty of excise would not be leviable on it.
The Supreme Court was of the opinion that the process of testing the customized F&S
machines was inextricably connected with the manufacturing process, in as much as,
until this process is carried out in terms of the afore-extracted covenant in the purchase
order, the manufacturing process is not complete; the machines are not fit for sale and
hence, not marketable at the factory gate.
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Decision of the Case: The Court was, therefore, of the opinion that the manufacturing
process in the present case gets completed on testing of the said machines. Hence, the
afore-stated goods viz. the flexible plastic films used for testing the F&S machines are
inputs used in relation to the manufacture of the final product and would be eligible for
CENVAT credit.
2. The assessee claimed the CENVAT credit on the duty paid on capital goods which
were later destroyed by fire. The Insurance Company reimbursed the amount
inclusive of excise duty. Is the CENVAT credit availed by the assessee required to
be reversed?
CCE v. Tata Advanced Materials Ltd. 2011 (271) E.L.T. 62 (Kar.)
Facts of the case: The assessee purchased some capital goods and paid the excise
duty on it. Since, said capital goods were used in the manufacture of excisable goods,
he claimed the CENVAT credit of the excise duty paid on it. However, after three years
the said capital goods (which were insured) were destroyed by fire. The Insurance
Company reimbursed the amount to the assessee, which included the excise duty, which
the assessee had paid on the capital goods. Excise Department demanded the reversal
of the CENVAT credit by the assessee on the ground that the assessee had availed a
double benefit.
Decision of the case: The High Court observed that merely because the Insurance
Company paid the assessee the value of goods including the excise duty paid, that would
not render the availment of the CENVAT credit wrong or irregular. At the same time, it did
not provide a reason to the Excise Department to demand reversal of credit or default to
pay the said amount.
The assessee had paid the premium and covered the risk of this capital goods and when
the goods were destroyed in terms of the Insurance policy, the Insurance Company had
compensated the assessee. It was not a case of double payment as contended by the
Department. The High Court, therefore, answered the substantial question of law in
favour of the assessee.
3. In case of combo-pack of a tooth paste (manufactured by assessee) and a tooth
brush (bought out frommarket); is tooth brush eligible as input under the CENVAT
Credit Rules, 2004?
CCus. v. Prime Health Care Products 2011 (272) E.L.T. 54 (Guj.)
Facts of the case: The assessee was engaged in the manufacture of tooth paste. It was
sold as a combo pack of tooth paste and a bought out tooth brush. The assessee
availed CENVAT credit of central excise duty paid on the tooth brush. Revenue
contended that the tooth brush was not an input for the manufacture of the tooth paste
and the cost of tooth brush was not added in the M.R.P. of the combo pack and hence,
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the assessee had availed CENVAT credit of duty paid on tooth brush in contravention of
the provisions of the CENVAT Credit Rules, 2004.
Observations of the Court: The High Court noted that the process of packing and re-
packing the input that was, toothbrush and tooth paste in a unit container would fall
within the ambit of manufacture [as per section 2(f)(iii) of the Central Excise Act, 1944].
Further, the word input as defined in rule 2(k) of the CENVAT Credit Rules, 2004 also
include accessories of the final products cleared along with final product. There was no
dispute about the fact that on toothbrush, excise duty had been paid. The toothbrush was
put in the packet along with the tooth paste and no extra amount was recovered fromthe
consumer for the toothbrush*.
Decision of the case: Considering the definition of the input and the provisions
contained in rule 3 of the CENVAT Credit Rules, 2004, the High Court upheld the
Tribunals decision that the CENVAT credit was admissible on bought out tooth brush.
*Note: The above case is based on the old definition of inputs as it stood prior to
01.03.2011.
The erstwhile definition, inter alia, stipulated that input includes accessories of the final
products cleared along with the final product. It is important to note that the new
definition also stipulates that input includes accessories of the final products cleared
along with the final product albeit with a condition that the value of such accessory
should be included in the value of the final product.
In the aforesaid judgment, since no extra amount was recovered fromthe customer on
the toothbrush, it may be inferred that the value of the toothbrush was included in the
value of the final product i.e., toothpaste. Hence, the judgment holds good in terms of
the new definition of inputs as well.
4. Whether penalty can be imposed on the directors of the company for the wrong
CENVAT credit availed by the company?
Ashok Kumar H. Fulwadhya v. UOI 2010 (251) E.L.T. 336 (Bom.)
Observations of the Court: The Court observed that words any person used in rule
13(1) of the erstwhile CENVAT Credit Rules, 2002 [now rule 15(1) of the CENVAT Credit
Rules, 2004] clearly indicate that the person who has availed CENVAT credit shall only
be the person liable to the penalty. Further, in the instant case, CENVAT credit had been
availed by the company and the penalty under rule 13(1) [now rule 15(1)] was imposable
only on the person who had availed CENVAT credit [company in the given case], namely
the manufacturer.
Decision of the case: The Court held that the petitioners-directors of the company could
not be said to be manufacturer availing CENVAT credit and penalty cannot be imposed
on them for the wrong CENVAT credit availed by the company.
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5. Can CENVAT credit be taken on the basis of private challans?
CCEx. v. Stelko Strips Ltd. 2010 (255) ELT 397 (P & H)
Point of dispute: The issue under consideration before the High Court in the instant
case was that whether private challans other than the prescribed documents are valid for
taking MODVAT credit under the Central Excise Rules, 1944.
Observations of the Court: The High Court placed reliance on its decision in the case
of CCE v. M/s. Auto Spark Industries CEC No. 34 of 2004 decided on 11.07.2006
wherein it was held that once duty payment is not disputed and it is found that documents
are genuine and not fraudulent, the manufacturer would be entitled to MODVAT credit on
duty paid on inputs.
The High Court also relied on its decision in the case of CCE v. Ralson India Ltd. 2006
(200) ELT 759 (P & H) wherein it was held that if the duty paid character of inputs and
their receipt in manufacturers factory and utilization for manufacturing a final product is
not disputed, credit cannot be denied.
Decision of the case: The High Court held that MODVAT credit could be taken on the
strength of private challans as the same were not found to be fake and there was a
proper certification that duty had been paid.
Note: Though, the principle enunciated in the above judgement is with reference to the
erstwhile Central Excise Rules, 1944, the same may apply in respect of the CENVAT
Credit Rules, 2004 also.
6. Whether (i) technical testing and analysis services availed by the assessee for
testing of clinical samples prior to commencement of commercial production and
(ii) services of commission agent are eligible input services for claiming CENVAT?
CCEx v. Cadila Healthcare Ltd. 2013 (30) S.T.R. 3 (Guj.)
Facts of the case: In the instant case, the assessee was engaged in the manufacture of
medicaments. Since, the medicament could be manufactured only upon approval of the
regulatory authority after the product undergoes technical testing and analysis, the
assessee availed the services of various technical testing and analysis agencies for
testing of clinical samples prior to commencement of commercial production. These
samples were manufactured in small trial batches and removed after payment of excise
duty. The assessee availed CENVAT credit of service tax paid by it on such testing
services. However, the department alleged that unless goods reached the commercial
production stage, CENVAT credit was not admissible.
Further, the assessee also availed CENVAT credit of service tax paid by it on
commission paid to foreign agents for the sale of such medicaments. Credit was taken
as per the inclusive part of the definition of input service, which included services in
relation to sales promotion. However, the department contended that there was a clear
distinction between sales promotion and sale and a commission agent is directly
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concerned with sales rather than sales promotion. Therefore, service provided by
commission agent would not fall within the purview of the main or inclusive part of the
definition of input service.
Observations of the Court: The High Court observed that the activity of testing and
analysis of the trial batches was in relation to the manufacture of final product as unless
such trial batches were tested and approval from the regulatory authority was obtained,
the final product could not be manufactured.
The High Court did not find any merits in the contention of the department that CENVAT
credit was not admissible in respect of the technical testing and analysis services availed
in respect of the product at trial production stage as the goods had not reached the
commercial production stage. It was more so as the trail batches were removed on
payment of excise duty and thus, CENVAT credit of service tax paid in respect of such
services could not be denied.
As regards the commission paid to foreign agents, the High Court observed that there
was nothing on record to indicate that the foreign agents were actually involved in any
sales promotion activities like advertising which was covered in inclusive part of definition
of input service. The High Court further elaborated that neither were such services used
directly or indirectly, in or in relation to manufacture of final products or clearance of final
products from (now upto) place of removal nor were they analogous to illustrative
activities mentioned in the Rule 2(l) viz., accounting, auditing, etc.
Decision of the case: The High Court held that technical testing and analysis services
availed for testing of clinical samples prior to commencement of commercial production
were directly related to the manufacture of the final product and hence, were input
services eligible for CENVAT credit.
With respect to the services provided by foreign commission agents, the High Court held
that since the agents were directly concerned with sales rather than sales promotion, the
services provided by them were not covered in main or inclusive part of definition of input
service as provided in rule 2(l) of the CENVAT Credit Rules, 2004.
7. Will two units of a manufacturer surrounded by a common boundary wall be
considered as one factory for the purpose of CENVAT credit, if they have separate
central excise registrations?
Sintex Industries Ltd. vs. CCEx 2013 (287) ELT 261 (Guj.)
Facts of the case: The assessee, a company incorporated under the Companies Act,
1956, had two divisions namely, textile division and plastic division situated adjacent to
each other on a common ground and surrounded by a common boundary wall. Both the
units had separate central excise registrations but the assessee, a single entity, had a
common PAN under the Income-tax Act.
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In order to receive continuous and uninterrupted supply of electricity, the assessee
installed DG sets/electricity generation plant to be used in the factory of the textile
division and it used furnace oil as fuel in the generation of electricity. The assessee
availed CENVAT credit on furnace oil, used as fuel for the generation of electricity, which
was used for captive consumption in its own factory. When the assessee's other unit
required electricity, the assessee supplied part of the electricity so generated to its other
unit.
The contention of the Revenue was that the assessee ought to reverse the credit taken
on furnace oil used in the generation of electricity and supplied to the other unit.
However, the assessee contended that since both the units were situated within a
common boundary wall, the electricity supplied to the other unit could not be treated as
being supplied to a different entity but within its own factory. The assessee further
contended that separate registration of the plastic unit would not make it a different
factory.
Observations of the Court: The High Court observed that though both the separately
registered factories/divisions are situated within a common boundary wall, it could not be
said that the other division is also within the factory of the assessee wherein the
electricity is generated. The reason given by the High Court for such an observation was
that the assessee itself had described the factory of its other division as a separate place
of business by applying for separate central excise registration and had obtained such
separate registration.
Decision of the case: The High Court held that credit could be availed on eligible inputs
utilized in the generation of electricity only to the extent the same were used to produce
electricity within the factory registered for that purpose (textile division). However, credit
on inputs utilized to produce electricity which was supplied to a factory registered as a
different unit (plastic division) would not be allowed. The High Court rejected the
contention of the assessee that separate registration of two units situated within a
common boundary wall would not make them two different factories.
8. Whether CENVAT credit can be denied on the ground that the weight of the inputs
recorded on receipt in the premises of the manufacturer of the final products
shows a shortage as compared to the weight recorded in the relevant invoice?
CCE v. Bhuwalka Steel Industries Ltd. 2010 (249) ELT 218 (Tri-LB)
The Larger Bench of the Tribunal held that each case had to be decided according
to merits and no hard and fast rule can be laid down for dealing with different kinds
of shortages. Decision to allowor not to allowcredit under rule 3(1) of the CENVAT
Credit Rules, 2004, in any particular case, will depend on various factors such as the
following:-
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(i) Whether the inputs/capital goods have been diverted en-route or the entire quantity
with the packing intact has been received and put to the intended use at the
recipient factory?
(ii) Whether the impugned goods are hygroscopic in nature or are amenable to transit
loss by way of evaporation etc?
(iii) Whether the impugned goods comprise countable number of pieces or packages
and whether all such packages and pieces have been received and accounted for at
the receiving end?
(iv) Whether the difference in weight in any particular case is on account of weighment
on different scales at the despatch and receiving ends and whether the same is
within the tolerance limits with reference to the erstwhile Standards of Weights and
Measures Act, 1976 [now Legal Metrology Act, 2009]?
(v) Whether the recipient assessee has claimed compensation for the shortage of
goods either from the supplier or from the transporter or the insurer of the cargo?
Tolerances in respect of hygroscopic, volatile and such other cargo have to be allowed
as per industry norms excluding unreasonable and exorbitant claims. Similarly, minor
variations arising due to weighment by different machines will also have to be ignored if
such variations are within tolerance limits.
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5
DEMAND, ADJUDICATION AND OFFENCES
1. Whether time-limit under section 11A of the Central Excise Act, 1944 is applicable
to recovery of dues under compounded levy scheme?
Hans Steel Rolling Mill v. CCEx., Chandigarh 2011 (265) E.L.T. 321 (S.C.)
Observations of the Court: The Apex Court elucidated that compounded levy scheme is
a separate scheme from the normal scheme for collection of excise duty on goods
manufactured. Rules under compounded levy scheme stipulate method, time and
manner of payment of duty, interest and penalty. Since the compounded levy scheme is
a comprehensive scheme in itself, general provisions of the Central Excise Act and rules
are excluded.
The Supreme Court affirmed that importing one scheme of tax administration to a
different scheme is inappropriate and would disturb smooth functioning of such unique
scheme.
Decision of the case: Hence, the Supreme Court held that the time-limit under section
11A of the Central Excise Act, 1944 is not applicable to recovery of dues under
compounded levy scheme.
2. Whether Additional Director General, Directorate General of Central Excise
Intelligence can be considered a central excise officer for the purpose of issuing
showcause notice?
Raghunath International Ltd. v. Union of India, 2012 (280) E.L.T. 321 (All.)
Facts of the Case: The appellant was engaged in the manufacture and clearance of
Gutkha and Pan Masala. Search and seizure was conducted at the appellants premises
by the officers of the Directorate General of Central Excise, New Delhi. A show-cause
notice was issued by Additional Director General, Directorate General of Central Excise
Intelligence, asking the petitioner to show cause to the Commissioner of Central Excise,
Kanpur within 30 days as to why the duty, penalty and interest were not to be imposed.
Point of Dispute: The appellant contended that Additional Director General, Directorate
General of Central Excise Intelligence had no jurisdiction to issue the Show Cause
Notice. It was contended that he was not a Central Excise Officer within the meaning of
section 2(b) of the Central Excise Act, 1944. It was further contended that no notification
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regarding his appointment as Central Excise Officer was published in the Official Gazette
as required by the rule 3(1) of the Central Excise Rules, 2002.
Another contention raised by the appellant was that the authority who had issued the
show cause notice ought to have obtained prior permission from the adjudicating
authority before issuing the Show Cause Notice.
Observations of the Court: The High Court noted that the Board had issued notification
dated 26-6-2001*, in exercise of power under section 2(b) of the Central Excise Act, 1944
read with sub-rule (1) of rule 3 of the Central Excise Rules, 2002, appointing the
specified officers as Central Excise Officer and investing them with all the powers, to be
exercised by them throughout the territory of India. In this notification, Additional Director
General, Directorate General of Central Excise Intelligence was specified as
Commissioner of Central Excise.
Decision of the Case: The Court, therefore, held that Additional Director General,
Directorate General of Central Excise Intelligence having been authorized to act as a
Commissioner of Central Excise was a Central Excise Officer, within the meaning of
section 2(b) of the Central Excise Act, 1944 and was fully authorized to issue the Show
Cause Notice.
The Court further stated that no such provision had been referred to nor shown which
may require approval before issuing the show cause notice of the adjudicating
authority/officer.
*Note: Central Excise Officer is defined under section 2(b) of the Central Excise Act,
1944. As per the said definition, Central Board of Excise and Customs is empowered to
invest any person (including an officer of the State Government) with any of the powers
of a Central Excise Officer under this Act. Pursuant to the powers conferred under this
section, CBEC vide Notification No. 38/2001-C.E. (N.T) dated 26-6-2001 as amended
has invested, inter alia, the Additional Director General, Directorate General of Central
Excise Intelligence with the powers of Commissioner of Central Excise.
3. Whether non-disclosure of a statutory requirement under lawwould amount to
suppression for invoking the larger period of limitation under section 11A?
CC Ex. & C v. Accrapac (India) Pvt. Ltd. 2010 (257) E.L.T. 84 (Guj.)
Facts of the case: The respondent-assessee was engaged in manufacture of various
toilet preparations such as after-shave lotion, deo-spray, mouthwash, skin creams,
shampoos, etc. The respondent procured Extra Natural Alcohol (ENA) from the local
market on payment of duty, to which Di-ethyl Phthalate (DEP) was added so as to
denature it and to render the same unfit for human consumption. The addition of DEP to
ENA results in the manufacture of an intermediate product i.e. Di-ethyl Alcohol. The
Department alleged that the said intermediate product was liable to central excise duty.
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Point of dispute: The question which arose before the High Court in the instant case is
whether non-disclosure as regards manufacture of Di-ethyl Alcohol amounts to
suppression of material facts thereby attracting the extended period of limitation under
section 11A.
Decision of the case: The Tribunal noted that denaturing process in the cosmetic
industry was a statutory requirement under the Medicinal & Toilet Preparations (M&TP)
Act. Thus, addition of DEP to ENA to make the same unfit for human consumption was a
statutory requirement. Hence, failure on the part of the respondent to declare the
same could not be held to be suppression as Department, knowing the fact that the
respondent was manufacturing cosmetics, must have the knowledge of the said
requirement. Further, as similarly situated assessees were not paying duty on Di-ethyl
alcohol, the respondent entertained a reasonable belief that it was not liable to pay
excise duty on such product.
The High Court upheld the Tribunals judgment and pronounced that non-disclosure of
the said fact on the part of the assessee would not amount to suppression so as to call
for invocation of the extended period of limitation.
4. In a case where the assessee has been issued a showcause notice regarding
confiscation, is it necessary that only when such SCN is adjudicated, can the SCN
regarding recovery of dues and penalty be issued?
J ay Kumar Lohani v. CCEx 2012 (28) S.T.R. 350 (M.P.)
Facts of the case: The assessee was issued a show cause notice by the Commissioner
proposing confiscation of seized goods and imposition of penalty. A reply to the said
notice was submitted by the assessee. However, before taking any decision on such
SCN, another SCN was issued by the Commissioner demanding excise duty and
imposing penalty by invoking extended period of limitation of five years on the same
allegations.
Point of dispute: The assessee contended that since no decision was taken in respect
of first SCN, the Commissioner could not pre-judge the issue involved in the matter and
issue another SCN for recovery of duty and penalty. Therefore, the assessee submitted
that the second SCN be quashed or an order be passed prohibiting the Commissioner
from proceeding further with the said show cause notice till the final adjudication of the
question involved in earlier SCN.
Observations of the Court: The High Court observed that since the subsequent show
cause notice only formed prima facie view in regard to allegations, it could not be said to
be issued after pre-judging the question involved in the matter. The High Court opined
that since it was not a case of show cause notice being issued without jurisdiction,
adjudicating authority could not be restrained from proceeding further with the SCN.
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Decision of the case: The High Court held that there was no legal provision requiring
authorities to first adjudicate the notice issued regarding confiscation and, only
thereafter, issue show cause notice for recovery of dues and penalty.
5. Is assessee required to pay interest in case of voluntary payment of time-barred
duty?
C.C.E. & C. v. Gujarat Narmada Fertilizers Co. Ltd. 2012 (285) E.L.T. 336 (Guj.)
Point of dispute: The question which arose for consideration before Gujarat High Court
was that in a case where the assessee voluntarily pays the duty short paid, recovery of
which has become time-barred; can he be required to pay interest on the duty so paid.
Observations of the Court: The High Court observed that in case the recovery of the
unpaid or short paid duty has become time-barred, if the manufacturer does not pay it
voluntarily, it would not be possible for the Department to recover the same. Thus, if he
does it voluntarily despite completion of period of limitation, he should not, further be
saddled with the liability to pay statutory interest. The High Court held that while inserting
sub-section (2B) in erstwhile section 11A of the Act [now section 11A(1)(b)], intention of
the Legislature was not to impose interest on the voluntary payment of time-barred duty.
Decision of the case: The High Court held that the assessee was not required to pay
interest in case of voluntary payment of time-barred duty.
6. Can Appellate Authorities or Courts permit the assessee to pay reduced penalty of
25% beyond the time prescribed under section 11AC?
CCEx. v. Castrol India Ltd. 2012 (286) E.L.T. 194 (Bom.)
Facts of the case: The penalty under section 11AC was imposed on the assessee. The
assessee paid the duty sought to be evaded and interest payable thereon before the
passing of the adjudication order. However, the assessee did not pay 25% of the penalty
imposed under section 11AC within 30 days from the date of the communication of the
order of Central Excise Officer determining the duty sought to be evaded under erstwhile
section 11A(2) [now section 11A(10)] which was the mandatory requirement under
section 11AC for claiming the benefit of reduced penalty. Instead of paying 25% of the
penalty within the stipulated time, the assessee chose to file an appeal against imposition
of penalty under section 11AC.
Tribunal affirmed that the penalty was leviable under section 11AC. However, it further
noted that since the option to pay the reduced penalty under the proviso to erstwhile
section 11AC [now section 11AC(1)(c)] had not been given in the adjudication order, the
benefit of reduced penalty under section 11AC could not be denied to the assessee.
Thus, it permitted the assessee to pay 25% penalty within 30 days from the date of
communication of the order passed by the Tribunal.
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Point of dispute: The Revenue contended that Tribunal could not permit assessee to
pay reduced penalty of 25% beyond time prescribed under section 11AC.
Observations of the Court: The High Court elucidated that when the 25% penalty under
the first and the second proviso to erstwhile section 11AC [now section 11AC(1)(c)] was
required to be paid within 30 days from the date of communication of the order of the
Central Excise Officer determining duty under erstwhile section 11A(2) [now section
11A(10)], it would not be open to the appellate authority or the Court to direct the
assessee to pay 25% penalty beyond the stipulated time period.
Further, the Court noted that the third and fourth proviso to erstwhile section 11AC [now
section 11AC(1)(d)] made it clear that, it was only when the duty determined as payable
under erstwhile section 11A(2) [now section 11A(10)] was increased by the appellate
authority/Court in the appellate proceedings, the appellate authority/Court was authorised
to permit the assessee to pay 25% of the increased penalty within 30 days from the date
of communication of the order increasing the duty.
Decision of the case: In the light of the aforesaid discussion, the High Court held that
Tribunal could not permit the assessee to pay 25% penalty beyond the time prescribed
under the first and second proviso to erstwhile section 11AC [now section 11AC(1)(c)].
Notes:
1. The aforesaid judgment relates to erstwhile section 11AC which existed prior to
08.04.2011. However, the principle enunciated in the said judgment, that Appellate
Authorities or Courts cannot permit the assessee to pay reduced penalty of 25%
beyond time prescribed under section 11AC, holds good in terms of present section
11AC also (applicable with effect from08.04.2011).
Further, it is important to note that under present section 11AC(1)(c), in case where
the there is a short levy/non-levy, short payment/non-payment or erroneous refund
of excise duty by fraud, collusion etc., option to pay 25% penalty is available
provided:-
(i) the default has been found during the course of any audit, investigation or
verification and
(ii) the details of such transaction are available in the specified records.
Under the erstwhile section 11AC, the aforesaid two conditions were not required to
be fulfilled.
2. The Bombay High Court, while deciding the aforesaid case, departed fromthe view
taken by the High Courts in the following cases in the said matter:-
Commissioner v. Bhagyoday Silk Industries 2010 (262) E.L.T. 248 (Guj.)
Commissioner v. J .R. Fabrics Pvt. Ltd. 2009 (238) E.L.T. 209 (P & H)
K.P. Pouches Pvt. Ltd. v. Union of India 2008 (228) E.L.T. 31 (Del.).
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7. In a case where the manufacturer clandestinely removes the goods and stores
themwith a firmfor further sales, can penalty under rule 25 of the Central Excise
Rules, 2002 be imposed on such firm?
CCEx. v. Balaji Trading Co. 2013 (290) E.L.T. 200 (Del.)
Facts of the case: Prabhat Zarda Factory was engaged in manufacturing zarda which
had the brand name of Ratna. It clandestinely cleared Ratna zarda and stored them
with Balaji Trading Co. (respondents) for further sales. The respondents were allegedly
the related concerns of Prabhat Zarda Factory.
Commissioner (Adjudication) imposed a penalty under rule 25 of the Central Excise
Rules, 2002 on the respondents. However, in an appeal filed by the respondents to
CESTAT, CESTAT noted that penalty under rule 25 could be imposed only on four
categories of persons:-
(a) producer;
(b) manufacturer;
(c) registered person of a warehouse; or
(d) a registered dealer.
Since, the respondents were neither producers nor manufacturers of the said zarda,
neither were they the registered persons of a warehouse in which the said zarda had
been stored nor were the registered dealers, penalty under rule 25 (higher of duty
payable on excisable goods in respect of which contravention has been committed or
` 2,000), could not be imposed on the respondents.
Decision of the case: The Department aggrieved by the said order filed an appeal with
High Court wherein it contended that rule 25(1)(c) of the Central Excise Rules, 2002
would be applicable in the instant case. However, High Court concurred with the view of
the Tribunal and concluded that rule 25(1)(c) would have no application in the present
case.
Note: Rule 25(1)(c) of the Central Excise Rules 2002 provides that in case of
manufacture, production or storage of any excisable goods without having applied for the
registration certificate, a penalty not exceeding the duty on such excisable goods or
` 2,000, whichever is greater is leviable on the producer, manufacturer, registered
person of a warehouse or a registered dealer committing such contravention.
8. Can a decision pronounced in the open court in the presence of the advocate of
the assessee, be deemed to be the service of the order to the assessee?
Nanumal Glass Works v. CCEx. Kanpur, 2012 (284) E.L.T. 15 (All.)
Facts of the case: The CESTAT, while hearing an appeal filed by the assessee, gave an
option to the assessee that if 25% of the penalty amount was paid within 30 days from
the date of its order (viz. 22
nd
July, 2010), the penalty would be reduced to 25%. The
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counsel (advocate) of the assessee who appeared and argued the case before the
Tribunal informed the local counsel of the assessee, but the local counsel could not
inform the assessee about the option given by the Tribunal. Resultantly, the assessee
deposited 25% penalty on 30
th
August, 2010 and was denied the benefit of the option as
there had occasioned a delay of 9 days.
The assessee submitted that the order could not be said to be tendered to him on 22
nd

July, 2010 as it was not received by the assesseein person and that he had deposited
the amount of 25% of penalty within 30 days from the date of communication of the order
to him and there had been no delay. However, the Revenue contended that as the
advocate of the assessee was present at the time of passing of the order, the order
would be deemed to have been communicated to him on the same date (22
nd
July, 2010)
and 30 days time would run from the same date.
Observations of the Court: The High Court noted that in terms of section 37C(a) of the
Central Excise Act, 1944, containing the provisions relating to service of decisions,
orders, summons etc., an order is deemed to be served on the person if it is tendered to
the person for whom it is intended or his authorized agent. The High Court opined that
the communication of the order to the authorised agent of a person, therefore, is
sufficient communication. Thus, when the order was passed by the Tribunal on 22
nd
July,
2010 in presence of advocate of the assessee, the order would be deemed to be
communicated to the authorized agent of the assessee (i.e. his advocate) on the same
date and 30 days period would start from 22
nd
July, 2010.
Decision of the case: The High Court held that when a decision is pronounced in the
open court in the presence of the advocate of the assessee, who is the authorized agent
of the assessee within the meaning of section 37C, the date of pronouncement of order
would be deemed to be the date of service of order.

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6
REFUND
1. If Revenue accepts judgment of the Commissioner (Appeals) on an issue for one
period, can it be precluded to make an appeal on the same issue for another
period?
Commissioner of C. Ex., Mumbai-III v. Tikitar Industries, 2012 (277) E.L.T. 149 (S.C.)
Facts of the Case: The assessee was a manufacturer of the Bitulux Insulation Board
known as TikkiExjo Filler. The TikkiExjo Filler was obtained by the process of
bituminization of the insulation board. The adjudicating authority concluding that the
above process amounts to manufacture, levied excise duty on it. Aggrieved by the order,
the assessee carried an appeal before the Commissioner (Appeals), who accepted the
assessees stand and held that the above process did not amount to manufacture.
Department did not appeal against it and the above order of the appellate authority
attained finality.
In the meantime, the Revenue issued several demand notices to the assessee directing
the assessee to pay the duty, but for a time period different from the period covered in
the said appeal.
Decision of the Case: The Supreme Court held that since the Revenue had not
questioned the correctness or otherwise of the findings on the conclusion reached by the
first appellate authority, it might not be open for the Revenue to contend this issue further
by issuing the impugned show cause notices on the same issue for further periods.
2. Can the excess duty paid by the seller be refunded on the basis of the debit note
issued by the buyer?
CCE v. Techno Rubber Industries Pvt Ltd. 2011 (272) E.L.T. 191 (Kar.)
Facts of the case: The assessee cleared the goods paying higher rate of excise duty in
the month of March, although the rate of duty on the said goods had been reduced in the
budget of the same financial year. However, the buyer refused to pay the higher duty
which the assessee had paid by mistake. He raised a debit note in the name of seller in
the month of June of the same year. The assessee applied for the refund of excess
excise duty paid. Revenue rejected his claim on the ground that incidence of the duty
had been passed by him to the buyer.
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While claiming refund, the assessee relied on the debit note raised by the buyer in his
name in the month of June to demonstrate that his customer had not paid the excess
duty to him. The adjudicating authority argued that since the debit note was issued in the
month of June and not March, it could not be the basis for refund of the duty paid in the
month of March.
Decision of the case: The High Court elucidated that once it is admitted that the
Department has received excess duty, they are bound to refund it to the person who has
paid the excess duty. If the buyer of the goods has paid that excess duty, he would have
been entitled to the said refund.
In the instant case, when the buyer had refused to pay excess duty claimed and had raised a
debit note, the only inference to be drawn was that the assessee had not received that
excess duty which he had paid to the Department. Consequently, Department was bound to
refund to the assessee the excess duty calculated. Hence, the substantial question of law
raised was answered in favour of the assessee and against the Revenue.
2. Merely because assessee has sustained loss more than the refund claim, is it
justifiable to hold that it is not a case of unjust enrichment even though the
assessee failed to establish the non-inclusion of duty in the cost of production?
CCE v. GemProperties (P) Ltd. 2010 (257) E.L.T. 222 (Kar.)
Observations of the Court: The Court observed that indisputably, the assessee was not
liable to pay the duty and was entitled to the refund of the excise duty wrongly paid by it.
The claim of the assessee had been rejected on the ground that if the application was
allowed, it would amount to unjust enrichment because all the materials sold by the
assessee had been inclusive of the duty. Thus, buyer would have ultimately borne the
burden of duty. Therefore, the burden had been heavy on the assessee to prove that
while computing the cost of the material; it had not included the duty paid by it.
The Court further observed that merely because the assessee had sustained loss in the
relevant year, it could not be held that there had been no unjust enrichment. It was evident
fromthe Chartered Accountants certificate that the cost of the duty was included while
computing the cost of production of the material.
Decision of the Case: Therefore, on facts of the case, the High Court answered the
question of law in favour of the Revenue. It ruled that assessee could not be granted
relief because it had failed to establish that the cost of the duty was not included while
computing the cost of the products.

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7
APPEALS
1. Whether doctrine of merger is applicable when appeal is dismissed on the grounds
of limitation and not on merits?
Raja Mechanical Co. (P) Ltd. v. Commissioner of C. Ex., Delhi-I, 2012 (279) E.L.T.
481 (S.C.)
Facts of the case: The assessee was denied the benefit of the CENVAT credit and was
directed to pay the duty as there was a delay in filing the prescribed forms before the
assessing authority. Aggrieved by that order, the assessee belatedly filed an appeal
before the first appellate authority-CCE (Appeals). Since the delay in filing the appeal
was beyond the time within which the appellate authority could have condoned the delay,
the appeal was dismissed.
The assessee appealed to Tribunal to first condone the delay and then to decide the
appeal on merits, i.e. to decide whether the adjudicating authority was justified in
disallowing the benefit of the CENVAT credit that was availed by the assessee. The
Tribunal did not concede to the second request made by the assessee and only accepted
the findings and conclusions reached by the Commissioner (Appeals), who had rejected
the appeal.
The learned counsel for the assessee contended that in given case, the orders passed
by the original authority would merge with the orders passed by the first appellate
authority and, therefore, the Tribunal should consider the appeal filed by the assessee.
It further submitted that the Tribunal ought to have considered the assessees appeal not
only on the ground of limitation but also on merits of the case. Since that has not been
done, according to the learned counsel, the Tribunal has committed a serious error. The
learned counsel further submitted that the doctrine of merger theory would apply in the
sense that though the first appellate authority had rejected the appeal filed by the
assessee on the ground of limitation, the orders passed by the original authority would
merge with the orders passed by the first appellate authority and, therefore, the Tribunal
ought to have considered the appeal.
On the other hand, the learned counsel for the respondent submitted that the doctrine of
merger would not apply to a case where an appeal was dismissed only on the ground of
the limitation.
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Point of Dispute: The issue under consideration is that in case the first appellate
authority had rejected the appeal filed by the assessee on the ground of limitation,
whether the orders passed by the original authority would merge with the orders passed
by the first appellate authority.
Decision of the Case: The Court observed that if for any reason an appeal is dismissed
on the ground of limitation and not on merits, that order (order of adjudicating authority)
would not merge with the orders passed by the first appellate authority. The Apex Court
opined that the High Court was justified in rejecting the request made by the assessee
for directing the Revenue to state the case and also the question of law for its
consideration and decision. In view of the above discussion, Supreme Court rejected the
appeal.
2. Can re-appreciation of evidence by CESTAT be considered to be rectification of
mistake apparent on record under section 35C(2) of the Central Excise Act, 1944?
CCE v. RDC Concrete (India) Pvt. Ltd. 2011 (270) E.L.T. 625 (S.C.)
Facts of the case: In this case, certain arguments were submitted before the Tribunal at
an earlier stage when appeal was heard. The Tribunal rejected these arguments and
decided the appeal. Subsequently, when an application for rectification of mistake
apparent from record was filed with Tribunal, these arguments were again submitted. The
arguments not accepted at an earlier point of time were accepted by the CESTAT while
hearing the application for rectification of mistake and it arrived at a conclusion different
from earlier one.
Observations of the Court: The Supreme Court observed that arguments not accepted
earlier during disposal of appeal cannot be accepted while hearing rectification of
mistake application
The Apex Court elucidated that re-appreciation of evidence on a debatable point cannot
be said to be rectification of mistake apparent on record. It is a well settled law that a
mistake apparent on record must be an obvious and patent mistake and the mistake
should not be such which can be established by a long drawn process of reasoning.
Decision of the case: The Apex Court held that CESTAT had reconsidered its legal view
as it concluded differently by accepting the arguments which it had rejected earlier.
Hence, the Court opined that CESTAT exceeded its powers under section 35C(2) of the
Act. In pursuance of a rectification application, it cannot re-appreciate the evidence and
reconsider its legal view taken earlier.
Note: Section 35C(2) reads as under:-
The Appellate Tribunal may, at any time within six months fromthe date of the order, with
a view to rectifying any mistake apparent fromthe record, amend any order passed by it
and shall make such amendments if the mistake is brought to its notice by the
Commissioner of Central Excise or the other party to the appeal.
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3. Can CESTAT decide an appeal on a totally newground which had not been urged
before adjudicating authority?
CCE v. GujchemDistillers 2011 (270) E.L.T. 338 (Bom.)
The High Court elucidated that in the instant case, the CESTAT had disposed of the
appeal on a ground which was not urged by the respondents before the adjudicating
authority. Thereby the CESTAT had disposed of the appeal on a totally new ground
which was not laid before the adjudicating authority and which would entail a finding on
facts.
The High Court explained that had the CESTAT not been satisfied with the approach of
the adjudicating authority, it should have remanded the matter back to the adjudicating
authority. However, it could not have assumed to itself the jurisdiction to decide the
appeal on a ground which had not been urged before the lower authorities.
4. Whether the construction of pre-fabricated components at one site to be used at
different inter-connected metro construction sites in Delhi would get covered
under exemption Notification No. 1/2011-C.E.(N.T.) dated 17-2-2011 which exempts
goods manufactured at the site of construction for use in construction work at
such site ?
Commissioner of Central Excise v. Rajendra Narayan 2012 (281) E.L.T. 38 (Del.)
Facts of the Case: The respondent-assessees were carrying on construction of the
Delhi Metro. They had manufactured pre-fabricated components, which have been used
in the construction of the Delhi Metro. The assessee claimed exemption from payment of
duty under Notification No. 1/2011-C.E. (N.T.) dated 17-2-2011 which exempts the goods
covered under specified chapter headings for a specified period, manufactured at the site
of construction for use in construction work at such site. The Department contended that
the respondent-assessees were not entitled to claim the exemption as said goods were
not manufactured at the site of the construction for use in the construction work at the
site.
Observations of the Court: The Court noted that Delhi Metro Rail Corporation Ltd. had
contracted and called upon the respondent-assessee to construct pre-fabricated
components of different segments to be used in elevated viaducts etc. For the purpose of
pre-fabricating the components a specific casting yard, premises was allotted by Delhi
Metro Rail Corporation Ltd. The said casting yard constituted the construction site. From
the said construction site, components had been moved to different locations where
elevated viaducts of the tunnel were being constructed.
Decision of the case: The Court held that keeping in view the facts of the case and that
the construction was done virtually all over Delhi and construction sites were
interconnected, practically prefabrication was done on construction site only. Therefore, it
allowed the appeal in the favour of the respondent- assessee.
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5. Can the deposit of 50% of tax amount be made a condition for condoning the delay
in filing of an appeal?
Mihani Network v. CCus. & CEx. 2012 (285) ELT 182 (MP)
Facts of the case: In the instant case, the assessee had filed an appeal along with an
application for stay before the CESTAT. However, since there had been a delay in filing
the appeal, the assessee also filed an application for condonation of delay. The CESTAT
ordered that the delay would be treated as condoned, if the assessee deposits 50% of
the amount of tax. By the same order, the CESTAT also finally disposed of the
assessees application for stay.
Observations of the Court: When the matter was brought before the High Court, the
High Court observed that there is no legal provision which provides for condoning the
delay in filing the appeal on a condition of depositing 50% of tax amount. Delay in filing
the appeal is condoned or refused depending upon the sufficiency of cause for delay. If
the party is found to be prevented by a sufficient cause to the satisfaction of the appellate
authority/Tribunal, the delay is condoned and if not found to be prevented by a sufficient
cause, the delay is not condoned.
Decision of the case: The High Court held that the condition of depositing 50% of tax
amount for condoning the delay is illegal and that the CESTAT ought not to have mixed
the issue with the separate application filed for stay.
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8
EXEMPTION BASED ON VALUE OF
CLEARANCES (SSI)
1. Whether the exempted goods on which duty has been paid by mistake by the
assessee and refund thereof has also not been claimed would be excluded for
computing value of clearances while claiming SSI exemption?
Bonanzo Engg. & Chemical P. Ltd. v. CCEx. 2012 (277) E.L.T. 145 (S.C.)
Facts of the case: The appellant was a manufacturer of goods falling under Chapter
headings 32 and 84 of the first schedule to the Central Excise Tariff Act, 1985. The
goods falling under Chapter heading 84 were wholly exempt from duty vide an exemption
notification, but the appellant by mistake paid the excise duty on it and did not even claim
refund of the same. For goods falling under Chapter heading 32, the appellant was
eligible to claim SSI exemption and wishes to claim the same.
For the purposes of computing the value of clearances for SSI exemption, the assessee
excluded the goods which were exempted although duty was paid mistakenly on them.
However, the Revenue contended that clearances of such goods should be included
while computing the value of clearances.
Decision of the Case: The Supreme Court opined that the value of clearances in the
SSI exemption notification needs to be computed after excluding the value of exempted
goods. Merely because the assessee by mistake paid duty on the goods which were
exempted from the duty payment under some other notification, did not mean that the
goods would become goods liable for duty under the Act. Further, merely because the
assessee had not claimed any refund on the duty paid by him would not come in the way
of claiming benefit of the SSI exemption.
Accordingly, the appeal was allowed in the favor of the assessee. The Court directed the
adjudicating authority to apply the SSI exemption notification in the assessees case
without taking into consideration the excess duty paid by the assessee under the other
exemption notification.
2. Can the brand name of another firmin which the assessee is a partner, be
considered as the brand name belonging to the assessee for the purpose of
claiming SSI exemption?
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Commissioner v. Elex Knitting Machinery Co. 2010 (258) E.LT. A48 (P & H)
Facts of the Case: The Elex Knitting Machinery Co., the assessee was engaged in the
manufacture of flat knitting machines. They had been availing the SSI exemption. They
were found using the brand name ELEX on those machines. The said brand name
belonged to M/s. Elex Engineering Works. The proprietor of Elex Knitting Machinery Co.
was a partner in M/s Elex Engineering Works.
Point of Dispute: The Department denied the benefit of the SSI exemption notification
solely on the ground that they had manufactured and cleared the goods (flat knitting
machines) under the brand name ELEX which belonged to M/s. ELEX Engineering
Works.
Decision of the case: The Tribunal, when the matter was brought before it, decided the
case in favour of assessee and against the Revenue. It held that the appellant was
eligible to claim benefit of the SSI exemption as the proprietor of Elex Knitting Machinery
Co. was one of the partners in Elex Engineering Works. Thus, being the co-owner of the
brand name of ELEX, he could not be said to have used the brand name of another
person, in the manufacture and clearance of the goods in his individual capacity.
The said decision of the Tribunal has been affirmed by the High Court in the instant case.
3. Whether the clearances of two firms having common brand name, goods being
manufactured in the same factory premises, having common management and
accounts etc. can be clubbed for the purposes of SSI exemption?
CCE v. Deora Engineering Works 2010 (255) ELT 184 (P & H)
Facts of the case: The respondent-assessee was using the brand name of "Dominant"
while clearing the goods manufactured by it. One more manufacturing unit was also
engaged in the manufacture and clearance of the same goods under the same brand
name of "Dominant" in the same premises. Both the firms had common partners, the
brand name was also common and the machines were cleared from both the units under
common serial number having common accounts. Department clubbed the clearance of
the goods from both the units for the purposes of SSI exemption because both the units
belong to same persons and they had common machinery, staff and office premises etc.
Decision of the case: The High Court held that indisputably, in the instant case, the
partners of both the firms were common and belonged to same family. They were
manufacturing and clearing the goods by the common brand name, manufactured
in the same factory premises, having common management and accounts etc.
Therefore, High Court was of the considered view that the clearance of the common
goods under the same brand name manufactured by both the firms had been
rightly clubbed.
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4. Whether the manufacture and sale of specified goods, not physically bearing a
brand name, frombranded sale outlets would disentitle an assessee to avail the
benefit of small scale exemption?
CCEx vs. Australian Foods India (P) Ltd 2013 (287) ELT 385 (SC)
Facts of the case: The assessee was engaged in the manufacture and sale of cookies
from branded retail outlets of "Cookie Man". The assessee had acquired this brand
name from M/s Cookie Man Pvt. Ltd, Australia (which in turn acquired it from M/s Auto-
bake Pvt. Ltd., Australia). The assessee was selling some of these cookies in plastic
pouches/containers on which the brand name described above was printed. No brand
name was affixed or inscribed on the cookies. Excise duty was duly paid, on the cookies
sold in the said pouches/containers. However, on the cookies sold loosely from the
counter of the same retail outlet, with plain plates and tissue paper, duty was not paid.
The retail outlets did not receive any loose cookies nor did they manufacture them. They
received all cookies in sealed pouches/containers. Those sold loosely were taken out of
the containers and displayed for sale separately. The assessee contended that SSI
exemption would be available on cookies sold loosely as they did not bear the brand
name.
Observations of the Court: The Supreme Court made the following significant
observations:
(i) Physical manifestation of the brand name on goods is not a compulsory requirement
as such an interpretation would lead to absurd results in case of goods, which are
incapable of physically bearing brand names viz., liquids, soft drinks, milk, dairy
products, powders etc. Such goods would continue to be branded good, as long as
its environment conveys so viz., packaging/wrapping, accessories, uniform of
vendors, invoices, menu cards, hoardings and display boards of outlet, furniture/props
used, the specific outlet itself in its entirety and other such factors, all of which
together or individually or in parts, may convey that goods is a branded one.
(ii) The test of whether the goods is branded or unbranded, must not be the physical
presence of the brand name on the good, but whether it is used in relation to such
specified goods for the purpose of indicating a connection in the course of trade
between such specified goods and some person using such name with or without any
indication of the identity of the person. The Court opined that a brand/ trade name
must not be reduced to a label or sticker that is affixed on a good.
(iii) Once it is established that a specified good is a branded good, whether it is sold
without any trade name on it, or by another manufacturer, it does not cease to be a
branded good of the first manufacturer. Therefore, soft drinks of a certain company
do not cease to be manufactured branded goods of that company simply because
they are served in plain glasses, without any indication of the company, in a private
restaurant.
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Decision of the case: The Supreme Court held that it is not necessary for goods to be
stamped with a trade or brand name to be considered as branded goods for the purpose
of SSI exemption. A scrutiny of the surrounding circumstances is not only permissible,
but necessary to decipher the same; the most important of these factors being the
specific outlet from which the good is sold. However, such factors would carry different
hues in different scenarios. There can be no single formula to determine if a good is
branded or not; such determination would vary from case to case.
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9
NOTIFICATIONS, DEPARTMENTAL
CLARIFICATIONS AND TRADE NOTICES
1. Whether a circular necessarily needs to be issued under section 37B, in order to be
binding on the Department?
Darshan BoardlamLtd. v. UOI 2013 (287) E.L.T. 401 (Guj.)
The High Court observed that any clarification issued by the Board is binding upon the
Central Excise Officers who are duty-bound to observe and follow such circulars.
Whether section 37B is referred to in such circular or not, is not relevant. When other
Central Excise authorities of equal and higher rank have followed and acted as per the
clarifications, the jurisdictional Commissioner in the instant case, could not have taken a
contrary view on the assumption that the clarifications are only letters and not orders
under section 37B. Central Excise is a central levy and, therefore, such a levy has to be
collected uniformly from all similarly situated manufacturers located all throughout the
country.
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10
SETTLEMENT COMMISSION
1. Can the Settlement Commission decline to grant immunity fromprosecution after
confirming the demand and imposing the penalty without placing the burden on the
Department to prove the clandestine manufacture and clearances of goods?
Maruthi Tex Print & Processors P. Ltd. v. C. & C. Ex. Sett.Comm., Chennai 2012
(281) E.L.T. 509 (Mad.)
Facts of the Case: M/s. Maruthi Tex Print & Processors Pvt. Limited, Hyderabad, was a
concern registered with the Excise Department for manufacture of man-made fabrics
(MMF) and also for manufacture of cotton fabrics. During the course of business, search
was carried out at various places, including the factory, registered office premises, their
godown and dealers premises, which resulted in recovery of certain records relating to
delivery of processed fabrics, and seizure of certain quantities of grey and processed
fabrics. The Department issued SCN confirming demand at the higher rate of duty and
interest and penalty thereon and seized goods also. However, there was no clear
evidence to hold that the fabrics mentioned in all delivery challans were attracting higher
rate of duty. The assessee approached the Settlement Commission. The Settlement
Commission confirmed the entire demand, penalty, seizure and denied the immunity from
the prosecution. The assessee approached the High Court against the order of the
Settlement Commission.
Point of Dispute: Can the Settlement Commission decline to grant immunity from
prosecution after confirming the demand and imposing the penalty?
Decision of the Court: The High Court held that when an allegation of clandestine
manufacture and clearances is made, the person making the allegation should establish
the complete charge including the nature of the goods and its value involved for
determining the appropriate demand of duty. The Court noted that out of four members of
the Settlement Commission, minority view showed that there was no clear evidence to
hold that all the fabrics mentioned in the delivery challans were manmade fabrics
attracting higher rate of duty.
Further, the High Court stated that if a person, who suffered a show cause notice on the
charge of evasion of duty, finally wants to settle the matter (before Settlement
Commission), by making full disclosure admitting certain omissions/commissions, the
Settlement Commission, should decide the matter only after placing the burden on the
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Department to prove the nature of goods cleared without payment of duty. However, in
the present case, the Settlement Commission confirmed the demand on the assessee
without placing the burden on the Department to prove their case.
The High Court was of the view that the Settlement Commission should not have refused
the benefit of immunity from prosecution and accordingly set aside the order relating to
non-grant of immunity from prosecution. However, it did not interfere with the
Commissions order relating to the demand and penalty.
2. Whether a consolidated return filed by the assessee after obtaining registration,
but for the period prior to obtaining registration, could be treated as a return under
clause (a) of first proviso to section 32E(1)?
Icon Industries v. UOI 2011 (273) E.L.T. 487 (Del.)
Facts of the case: The petitioner got its units registered after few days of the search
conducted in its units. Thereafter, it filed consolidated return with the Department for the
period prior to search. Subsequently, it filed a settlement application in respect of the
proceedings issued by the Commissioner.
Point of dispute: The Settlement Commission rejected the petitioners application on
the ground that no returns as mandated by clause (a) of first proviso to section 32E(1) of
the Central Excise Act, 1944 were filed (as the units were registered only after the search
was conducted).
The assessee contended that a return filed before enquiry or show cause, even though
filed belatedly, would entitle him to put forth his grievance before the Settlement
Commission and claim the benefit.
Observations of the Court: The High Court noted that certain riders have been
provided in section 32E(1) for entertaining applications for settlement. Clause (a) of first
proviso clearly lays down that unless the applicant has filed returns, showing production,
clearance and central excise duty paid in the prescribed manner, no such application
shall be entertained.
The Court referred to the case of M/s. Emerson Electric Company India Pvt. Ltd. 2005
(189) ELT 377 wherein it was held inter alia that
(i) Although section 32E(1) does not refer to rule 12 of the Central Excise Rules, 2002
under which ER-1/ER-3 returns are prescribed, the said returns can be deemed to
be the returns referred to in section 32E(1), as the said returns contain details of
excisable goods manufactured, cleared and duty paid in the prescribed manner.
Hence, the concept of return has to be understood in context of rule 12 of the
Central Excise Rules, 2002.
(ii) Returns are to be filed on monthly/quarterly basis. There is no provision for filing
the same in a consolidated manner covering more than one month. However, there
is no specific bar against belated filing of returns.
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(iii) Even if returns (for pre-registration period) are filed after getting ECC Number, the
applicant would not be able to indicate duty paid in the prescribed manner (or even
in any manner) and question would continue to agitate about the details of
production and clearance to be filled in such belated returns.
The High Court explained that in the above case, the Commission has drawn distinction
between monthly/quarterly returns filed belatedly but before inquiry/show cause notice
and consolidated returns. Whereas monthly/quarterly returns (for post-registration
period) filed belatedly but before inquiry/show cause notice can be taken cognizance of
for the purpose of Section 32E(1) of the Central Excise Act, 1944 to allow filing
settlement application, consolidated returns (for pre - registration period) have not been
treated as returns under clause (a) to Section 32E(1).
Decision of the case: Considering the above discussion, the High Court rejected the
submission of the petitioner that filing of consolidated return covering all the past periods
would serve the purpose. Hence, it held that the order passed by the Settlement
Commission was absolutely justifiable.
3. Is the Settlement Commission empowered to grant the benefit under the proviso to
erstwhile section 11AC [nowsection 11AC(1)(c)] in cases of settlement?
Ashwani Tobacco Co. Pvt. Ltd. v. UOI 2010 (251) E.L.T. 162 (Del.)
Decision of the case: The Court ruled that benefit under the proviso to erstwhile section
11AC [now section 11AC(1)(c)] could not be granted by the Settlement Commission in
cases of settlement.
It elucidated that the order of settlement made by the Settlement Commission is
distinct fromthe adjudication order made by the Central Excise Officer. The
scheme of settlement is contained in Chapter-V of the Central Excise Act, 1944 while
adjudication undertaken by a Central Excise Officer is contained in the other Chapters of
the said Act. Unlike Settlement Commission, Central Excise Officer has no power to
accord immunity from prosecution while determining duty liability under the Excise Act.
Once the petitioner has adopted the course of settlement, he has to be governed by the
provisions of Chapter V. Therefore, the benefit under the proviso to section 11AC, which
could have been availed when the matter of determination of duty was before a Central
Excise Officer did not attract to the cases of a settlement, undertaken under the
provisions of Chapter-V of the Act.
Note-This case was maintained by Supreme Court in 2011 (267) ELT A128 (SC).
Section 11AC(1)(c) grants an option to the assessee to pay the reduced penalty of 25%
of the duty amount in case where the there is a short levy/non-levy, short payment/non-
payment or erroneous refund of excise duty by fraud, collusion etc. provided:-
(i) the default has been found during the course of any audit, investigation or
verification,
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(ii) the details of such transaction are available in the specified records, and
(iii) duty, interest thereon along with the penalty is paid within 30 days of the date of
communication of order of the Central Excise Officer who has determined such
duty.

The Institute of Chartered Accountants of India










SERVICE TAX

The Institute of Chartered Accountants of India

IMPORTANT NOTE
The Finance Act, 2012 made a major shift in the service tax regime effective from July 1,
2012. While some of the areas of the taxability changed completely, some other, which
were more of procedural in nature were retained as they had been in the old regime (i.e.
prior to 1
st
July, 2012). Broadly, the changes can be summarised as follows:
In the old regime, about 119 services were taxable as per their respective definition,
in the new regime, there is a single definition of service encompassing almost all
activities not related to sale or manufacture of goods/ immovable property.
The rules relating to export and import of services in the old regime have been
omitted and a new set of rules namely Place of Provision of Services Rules, 2012
(POP rules) have been introduced.
There is no major change in the Service Tax Rules, 1994 and the Point of Taxation
Rules, 2011.
There is no fundamental change in the Service Tax (Determination of Value of
Services) Rules, 2006. The changes in the rules majorly relate to the change in
definition and taxability of works contract service.
In the above background, please note that the judgments discussed in the service tax
relate to the law applicable in the old regime. However, these judgments would remain
relevant in the new regime also. While the fundamental principles, based on which these
judgments have been made remain the same in the new regime, the manner and
placement of related provisions may be different in the new regime.

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1
BASIC CONCEPTS OF SERVICE TAX
1. Can the service tax liability created under lawbe shifted by virtue of a clause in the
contract entered into between the service provider and the service recipient?
Rashtriya Ispat Nigam Ltd. v. Dewan Chand RamSaran 2012 (26) S.T.R. 289 (S.C.)
Facts of the Case: The appellant was engaged in the manufacture of steel products and
pig-iron for sale in the domestic and export markets. The respondent was a partnership
firm carrying on the business of clearing and forwarding agents. In the year 1997, the
appellant appointed the respondent as the handling contractor in respect of appellants
iron and steel materials from their stockyard. A formal contract was entered into between
two of them. One of the terms and conditions of the contract read as follows:-
The contractor shall bear and pay all taxes, duties and other liabilities in connection with
discharge of his obligations under this order. Any income tax or any other taxes or duties
which the company may be required by law to deduct shall be deducted at source and
the same shall be paid to the tax authorities for the account of the contractor and the
service recipient shall provide the contractor with required tax deduction certificate.
In the year 2000, liability to pay service tax in case of clearing and forwarding agents
services was shifted from service provider (contractor in the given case) to service
receiver (the appellant)retrospectively from 16-7-1997 (refer note below). Consequent
thereupon, the appellant deducted the service tax on the bills of the respondent. The
respondent, however, refused to accept the deductions saying that the contractual clause
could not alter the liability placed on the service recipient (appellant) by law.
Point of Dispute: Where the law places liability to pay service tax on the service
recipient, can the service provider be made liable to pay service tax on account of such
clause provided in the contract?
Decision of the Case: The Supreme Court observed that on reading the agreement
between the parties, it could be inferred that service provider (contractor) had accepted
the liability to pay service tax, since it arose out of discharge of its obligations under the
contract.
With regard to the submission of shifting of service tax liability, the Supreme Court held
that service tax is an indirect tax which may be passed on. Thus, assessee can contract
to shift its liability.
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The Finance Act, 1994 is relevant only between assessee and the tax authorities and is
irrelevant in determining rights and liabilities between service provider and service
recipient as agreed in a contract between them. There is nothing in law to prevent them
from entering into agreement regarding burden of tax arising under the contract between
them.
Note: Under present position of law, liability to pay service tax does not lie on service
recipient under clearing and forwarding agents services. However, the principle derived
in the above judgment that service tax liability can be shifted by one party to the
other by way of contractual clause still holds good.
2. Is the service tax and excise liability mutually exclusive?
Commissioner of Service Tax v. Lincoln Helios (India) Ltd. 2011 (23) S.T.R. 112
(Kar.)
Facts of the case: The assessee undertook not only manufacture and sale of its
products, but also erection and commissioning of the finished products. The customer
was charged for the services rendered as well as the value of the manufactured
products. The assessee paid the excise duty on whole value including that for services,
but did not pay the service tax on the value of services on the ground that there could not
be levy of tax under two parliamentary legislations on the same transaction.
Decision of the case: The High Court held that the excise duty is levied on the aspect of
manufacture and service tax is levied on the aspect of services rendered. Hence, it
would not amount to payment of tax twice and the assessee is liable to pay service tax
on the value of services.
Note: It is important to note here that erection and commissioning charges are includible
in the transaction value only when the finished product is not an immovable property.
3. In case where rooms have been rented out by Municipality, can it pass the burden
of service tax to the service receivers i.e. tenants?
Kishore K.S. v. Cherthala Municipality 2011 (24) S.T.R. 538 (Ker.)
Facts of the case: The petitioners entered into agreements with the respondent-
Municipality and had taken rooms on rent from it. They were called upon to pay service
tax. However, they denied to pay the same.
The primary contentions of the petitioners were as follows:-
(a) Under the agreement, there was no provision for payment of service tax. Therefore,
the demand for payment of service tax was illegal. Further, service tax was payable
by the service provider viz. Municipality and there was no authority with which the
Municipality could pass it on to the petitioners.
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(b) Since they were small tenants, the Municipality must be treated as units of the State
within the meaning of Article 289 of the Constitution of India and, therefore, levy of
service tax on the property or on the income of the Municipality was unsustainable.
The Revenue contended that service tax was an indirect tax. Though primarily, the
person liable to pay the tax was Municipality, there was nothing in the law which
prevented passing of the liability to the tenants.
Observations of the case: The High Court rejected the contentions of the assessee and
observed as under:-
(a) As regards the contention that there was no mention of the service tax liability in the
contract, the Court held that this is a statutory right of the service
provider/Municipality by virtue of the provisions under law to pass it on to the
tenants. It is another matter that they may decide not to pass it on fully or partly. It
is not open to the petitioners to challenge the validity of the demand for service tax,
in view of the fact that service tax is an indirect tax and the law provides that it can
be passed on to the beneficiary. Hence, the service tax can be passed on by the
service provider i.e., Municipality.
(b) The word State in Article 289 does not embrace within its scope the Municipalities.
Hence, when service tax is levied on the Municipality there is no violation of Article
289. Moreover, Municipality has also not raised the contention that there was a
violation of Article 289.
Decision of the case: The High Court held that Municipality can pass on the burden of
service tax to the tenants.
Note: Article 289 of the Constitution of India relating to exemption of property and
income of a State fromUnion taxation provides as under:-
(1) The property and income of a State shall be exempt fromUnion taxation.
(2) Nothing in clause (1) shall prevent the Union fromimposing, or authorising the
imposition of, any tax to such extent, if any, as Parliament may by law provide in
respect of a trade or business of any kind carried on by, or on behalf of, the
Government of a State, or any operations connected therewith, or any property
used or occupied for the purposes of such trade or business, or any income
accruing or arising in connection therewith.
(3) Nothing in clause (2) shall apply to any trade or business, or to any class of trade or
business, which Parliament may by law declare to be incidental to the ordinary
functions of government.


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4. Whether the activity of running guest houses for the pilgrims is liable to service
tax?
Tirumala Tirupati Devasthanams, Tirupati v. Superintendent of Customs, Central
Excise, Service Tax 2013 (30) S.T.R. 27 (A.P.)
Facts of the Case: The assessee was running guest houses for the pilgrims. The
Department issued show cause notice stating that the assessee were liable to get service
tax registration under short term accommodation service and liable to pay service tax.
The assessee, on the other hand, submitted that it was a religious and charitable
institution and was running guest houses without any profit motive.
Observations of the Court: The High Court observed that as per erstwhile section
65(105)(zzzzw) of the Finance Act, 1994, service provided to any person by a hotel, inn,
guest house, club or camp-site, by whatever name called, for providing of
accommodation for a continuous period of less than three months is a taxable service.
Decision of the Case: Therefore, the High Court held that since the petitioner was
running guest houses by whatever name called, whether it was a shelter for pilgrims or
any other name, it was providing the taxable services and was thus liable to pay service
tax.
Note: This case would be relevant under the new regime of taxation of services as well.
5. Can a software be treated as goods and if so, whether its supply to a customer as
per an "End User Licence Agreement" (EULA) would be treated as sale or service?
Infotech Software Dealers Association (ISODA) v. Union of India 2010 (20) STR 289
(Mad.)
Observations of the Court: The High Court observed that the law as to whether the
software is goods or not is no longer res integra as it has been settled by the Supreme
Court ruling in TCS case [2004 (178) ELT 22 (SC)]. The High Court reiterated that
software is goods as per Article 366(12) of the Constitution. A software, whether
customized or non-customised, would become goods provided it has the attributes
thereof having regard to (a) utility (b) capable of being bought and sold (c) capable of
transmitted, transferred, delivered, stored and possessed.
On the issue as to whether the transaction would amount to sale or service, the High
Court was of the view that it would depend upon the nature of individual transaction. The
High Court stated that as a transaction could be exclusive sale or exclusive service or
composite one i.e., where the element of sales and service both are involved; the nature
of transaction becomes relevant for imposition of tax. The High Court explained that
when a statute, particularly a taxing statute is considered with reference to the legislative
competence, the nature of transaction and the dominant intention of such transaction
would be relevant.
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In the instant case, the terms of EULA indicated the dominant intention of parties
whereby the developer retained the copyright of each software, be it canned, packaged
or customised, and only the right to use with copyright protection was transferred to the
subscribers or the members. The High Court opined that in the transactions taking place
between the members of ISODA (the petitioner) with its customers, the software is not
sold as such, but only the contents of the data stored in the software are sold which
would only amount to service and not sale. Further, the High Court was of the view that
such transactions could also not be treated as deemed sale under Article 366(29A)(d) of
the Constitution of India as that requires a transfer of right to use any goods and in the
instant case, the goods as such are not transferred. The High Court did not agree with
the contention of the assessee that since software is goods, all transactions between the
members of ISODA and their customers would amount to sales and be liable to sales
tax/VAT.
Decision of the case: The High Court held that though software is goods, the
transaction may not amount to sale in all cases and it may vary depending upon the
terms of EULA.
Note: Services of development, design, programming, customisation, adaptation,
upgradation, enhancement, implementation of information technology software are one of
the declared services provided under section 66E.
6. Whether service tax is chargeable on the buffer subsidy provided by the
Government for storage of free sale sugar by the assessee?
CCE v. Nahar Industrial Enterprises Ltd. 2010 (19) STR 166 (P & H)
Facts of the case: The assessee was engaged in the manufacture of sugar. The Central
Government directed him to maintain buffer stock of free sale sugar for the specified
period. In order to compensate the assessee, the Government of India extended buffer
subsidy towards storage, interest and insurance charges for the said buffer stock of
sugar.
Revenue issued a show cause notice to the assessee raising the demand of service tax
alleging that amount received by the assessee as buffer subsidy was for storage and
warehousing services.
Decision of the case: The High Court noted that apparently, service tax could be levied
only if service of storage and warehousing was provided. Nobody can provide service to
himself. In the instant case, the assessee stored the goods owned by him. After the
expiry of storage period, he was free to sell them to the buyers of its own choice. He had
stored goods in compliance with the directions of the Government of India issued under
the Sugar Development Fund Act, 1982. He had received subsidy not on account of
services rendered to Government of India, but had received compensation on account of
loss of interest, cost of insurance etc. incurred on account of maintenance of stock.
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Hence, the High Court held the act of assessee could not be called as rendering of
services.
7. A society, running renowned schools, allows other schools to use a specific name,
its logo and motto and receives a non-refundable amount and annual fee as a
consideration. Whether this amounts to a taxable service?
Mayo College General Council v. CCEx. (Appeals) 2012 (28) STR 225 (Raj)
Facts of the case: The petitioner, Mayo College, was a society running internationally
renowned schools. It allowed other schools to use the name Mayoor School, its logo
and motto, and as a consideration thereof received collaboration fees from such schools
which comprised of a non-refundable amount and annual fee. The schools were required
to observe certain obligations/terms and unimpeachable confidentiality.
Points of dispute: The department contended that the petitioner was engaged in
providing franchise service to schools that were running their institutes using its school
name Mayoor School. Therefore, a show cause notice proposing recovery of service
tax along with interest and penalty was issued against them.
The petitioners submitted that they did not provide any franchise services to the said
schools, rather they provided their expertise for the establishment and development of
these schools. The agreement entered into between the petitioners and the said schools
also did not reveal that any franchise service was provided by the petitioner to these
schools. It was contended by the petitioners that they were a non-profit society carrying
on non-commercial activities and that their main obligation was to maintain the high
standard of the education in the said schools. Further, they did not collect any franchise
fees from the said schools and therefore, were not liable to pay service tax.
Decision of the case: The High Court held that when the petitioner permitted other
schools to use their name, logo as also motto, it clearly tantamounted to providing
franchise service to the said schools and if the petitioner realized the franchise or
collaboration fees from the franchise schools, the petitioner was duty bound to pay
service tax to the department.



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2
PLACE OF PROVISION OF SERVICE
1. Whether filing of declaration of description, value etc. of input services used in
providing IT enabled services (call centre/BPO services) exported outside India,
after the date of export of services will disentitle an exporter fromrebate of service
tax paid on such input services?
Wipro Ltd. v. Union of India 2013 (29) S.T.R. 545 (Del.)
As per Notification No. 12/2005 ST dated 19.04.2005, rebate is granted of the whole of
the duty paid on excisable inputs or the whole of the service tax and cess paid on all
taxable input services used in providing taxable service exported out of India. Condition
3.1 of the Notification stipulated that the provider of taxable service to be exported has to
file a declaration with the jurisdictional Assistant/Deputy Commissioner of Central Excise
describing the taxable service intended to be exported with description, value and the
amount of service tax/excise duty and cess payable on input services/inputs actually
required to be used in providing taxable service to be exported, prior to date of export of
such taxable service.
Facts of the case: In the instant case, the appellant rendered IT-enabled services such
as technical support services, customer-care services, back-office services etc. to clients
outside the country. It involved attending to cross-border telephone calls relating to a
variety of queries from existing or prospective customers in respect of the products or
services of multinational corporations. For rendering such services, the appellant used
input services such as night transportation, recruitment, training, bank charges etc. The
appellant claimed rebate of the service tax paid by it on such input services, used in
providing the output services which were exported during a particular time period, under
the said notification. However, the declaration required under para 3.1 of the notification
was filed only after the export of the services i.e., after the particular time period during
which the services were exported and for which the rebate claim was filed.
The appellant filed two claims under the said notification claiming rebate in respect of
service tax paid on such input services. In respect of the services rendered by the
appellant between 16.03.2005 and 30.09.2005, the claim for rebate was filed on
15.12.2005 and in respect of the services rendered between 01.10.2005 and 31.12.2005,
the claim was filed on 17.03.2006. The declaration required to be filed in terms of para
3.1 of the Notification was however filed by the appellant only on 05.02.2007.
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The rebate claims were rejected by the Department on the ground that the prescribed
procedure, as laid down in Notification No.12/2005, for obtaining the rebate was not
followed by the appellant.
Observations of the Court: The High Court observed that nature of the services was
such that they were rendered seamlessly, on continuous basis without any
commencement or terminal points. Since the calls were received and attended to in the
call centre on a continuous basis, it was impossible for the appellant to not only
determine the date of export but also anticipate the call so that the declaration could be
filed prior to the date of export.
The High Court noted that the appellant was also required to describe, value and specify
the amount of service tax payable on input services actually required to be used in
providing taxable service to be exported. The High Court opined that except the
description of the input services, the appellant could not provide the value and amount of
service tax payable as any estimation was ruled out by the use of the word actually
required and the bill/invoice for the input services were received by the appellant only
after the calls were attended to.
Further, the High Court also observed that one-to-one matching of input services with
exported services was impossible since every phone call was export of taxable service
but the invoices in respect of the input-services were received only at regular intervals,
viz. monthly or fortnightly etc. Thus, the High Court was of the view that in the very
nature of things, and considering the peculiar features of the appellant's business, it was
difficult to comply with the requirement prior to the date of the export.
Furthermore, the High Court elaborated that if particulars in declaration were furnished to
service tax authorities within a reasonable time after export, along with necessary
documentary evidence, and were found to be correct and authenticated, object/purpose
of filing of declaration would be satisfied.
Decision of the case: The High Court, therefore, allowed the rebate claims filed by the
appellants and held that the condition of the notification must be capable of being
complied with as if it could not be complied with, there would be no purpose behind it.
Note: With effect from01.07.2012, provisions of rebate of service tax/excise duty paid
on input services/inputs used in providing taxable service exported out of India are being
governed by Notification No. 39/2012 ST dated 20.06.2012 issued under rule 6A of the
Service Tax Rules, 1994. Since the said notification also requires filing of the declaration
prior to export, the principle enunciated in the above case will hold good under the
present law as well.



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3
VALUATION OF TAXABLE SERVICE
1. Whether expenditure like travel, hotel stay, transportation and the like incurred by
service provider in course of providing taxable service should be treated as
consideration for taxable service and included in value for charging service tax?
Intercontinental Consultants & Technocrats Pvt. Ltd. v. Union of India 2013 (29)
S.T.R. 9 (Del.)
Observations of the Court: The above question came up for consideration before the
Delhi High Court. The High Court noted that as per Rule 5(1) of the Service Tax
(Determination of Value) Rules, 2006 (hereinafter referred to as Rules),
expenditure/costs, such as travel, hotel stay, transportation, etc. incurred by service
provider in course of providing taxable service has to be treated as consideration for
taxable service and included in value for charging service tax.
The High Court observed that since section 67(1) of Finance Act, 1994 is subject to
provisions of Chapter V - which includes section 66 (now section 66B) the value of
taxable services has to be in consonance with section 66 which levies tax only on
taxable service. Thus, there is an inbuilt mechanism to ensure that only taxable service
are evaluated under section 67 which provides that value of taxable service is the gross
amount charged by service provider for such service. The High Court, therefore, opined
that it is only the consideration for the taxable service which is chargeable to tax under
the relevant Sections. However, rule 5(1) goes far beyond the charging provisions as it
includes the expenditure and costs - which are incurred by the service provider in the
course of providing taxable service - in the value of the taxable service.
The High Court elaborated that power to make rules could not exceed or go beyond the
section which provides for charge or collection of service tax. The High Court clarified
that even though section 94 prescribes to lay every rule framed by Central Government
before each House of Parliament, which have power to modify them; the same cannot
add any greater force to the Rules than what they ordinarily have as species of
subordinate legislation.
The High Court further observed that rule 5(1) may also result in double taxation, if
expenses like air travel tickets, had already been subjected to service tax. The High
Court was of the view that double taxation can be imposed only when it is clearly
provided for and intended. It can never be enforced by implication.
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Decision of the case: The High Court, therefore, held that rule 5(1) of the Rules runs
counter and is repugnant to sections 66 and 67 of the Act and to that extent it is ultra
vires the Finance Act, 1994.
Note: It may be noted that the since the Delhi High Court didnt refer to other
judgements in this regard, which sought to include reimbursements as part of taxable
value, it may be challenged at the Supreme Court.
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4
DEMAND, ADJUDICATION AND OFFENCES
1. Whether penalty is payable even if service tax and interest has been paid before
issue of the showcause notice?
CCE & ST v. Adecco Flexione Workforce Solutions Ltd. 2012 (26) S.T.R 3 (Kar)
Facts of the Case: The assessee had paid both the service tax and interest for delayed
payment before issue of show cause notice under the Act. Section 73(3) of the Finance
Act, 1994 categorically stated that if the payment of service tax and interest has been
intimated to the authorities in writing, the authorities should not serve any notice for the
amount so paid. But to the above, the authorities initiated the proceedings against the
assessee for recovery of penalty under section 76.
Point of Dispute: Assessee contested the issue of SCN as they had already paid the
service tax along with interest for delayed payment of service tax.
Decision of the Case: The Karnataka High Court held that the authorities had no
authority to initiate proceedings for recovery of penalty under section 76 when the tax
payer paid service tax along with interest for delayed payments promptly. As per section
73(3), no notice shall be served against persons who had paid tax with interest; the
authorities can initiate proceedings against defaulters who had not paid tax and not to
harass persons who had paid tax with interest on their own. If the notices were issued
contrary to this section, the person who had issued notice should be punishable and not
the person to whom it was issued.
2. Can an amount paid under the mistaken belief that the service is liable to service
tax when the same is actually exempt, be considered as service tax paid?
CCE (A) v. KVR Construction 2012 (26) STR 195 (Kar.)
Facts of the Case: KVR Construction was a construction company rendering services
under category of construction of residential complex service and were paying service tax
in accordance with the provisions of the Finance Act, 1994. They undertook certain
construction work on behalf of a trust and paid service tax accordingly. However, later
they filed refund claim for the service tax so paid contending that they were not actually
liable to pay service tax as it was exempt. Department also did not dispute the fact that
service tax was exempted in the instant case.
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However, the refund claim was rejected on the ground that same was filed beyond the
limitation period provided in section 11B of Central Excise Act.
Point of Dispute: Is assessee eligible to claim refund on service tax paid on construction
activity so done by them?
Observations of the Court: The High Court of Karnataka, distinguishing the landmark
judgment by Supreme Court in the case of Mafatlal Industries v. UOI 1997 (89) E.L.T.
247 (S.C.) relating to refund of duty/tax, held that service tax paid mistakenly under
construction service although actually exempt, is payment made without authority of law.
Therefore, mere payment of amount would not make it service tax payable by the
assessee.
The High Court opined that once there was lack of authority to collect such service tax
from the assessee, it would not give authority to the Department to retain such amount
and validate it. Further, provisions of section 11B of the Central Excise Act, 1944 apply to
a claim of refund of excise duty/service tax only, and could not be extended to any other
amounts collected without authority of law.
Decision of the Case: In view of the above, the High Court held that refund of an
amount mistakenly paid as service tax could not be rejected on ground of limitation under
section 11B of the Central Excise Act, 1944.
Note: Under the negative list regime of taxation of services, the service of construction of
a residential complex is a declared service under clause (b) of section 66E.
3. In a case where the assessee has acted bona fide, can penalty be imposed for the
delay in payment of service tax arising on account of confusion regarding tax
liability and divergent views due to conflicting court decisions?
Ankleshwar Taluka ONGC Land Loosers Travellers Co. OP. v. C.C.E., Surat-II 2013
(29) STR 352 (Guj.)
Facts of the case: The appellant, a Co-operative Society, rendered rent-a-cab service
to M/s. ONGC. The members of the society were essentially agriculturists who formed
the society after they lost their land when ONGC plant was being set up. At the time,
when the appellant started rendering the service to the ONGC, there was no service tax
levy on rent-a-cab service. However, service tax was imposed on rent-a-cab service
subsequently. A show cause notice was issued on the appellants proposing to recover
service tax with applicable penalty and interest. The appellants paid the entire disputed
amount and thereafter regularly paid the service tax. The issue under consideration
before the High Court, therefore, was only in relation to the imposition of penalty.
The appellant contended that they did not pay service tax at the relevant point of time as
it being a new levy; they were unaware of legal provisions. Also, there were divergent
views of different Benches of Tribunal, which had added to the confusion, and the issue
was debatable.
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Further, it was pointed out by the appellant that since initially there was no condition
relating to payment of service tax in the service contract with the ONGC-as there was no
levy at that point of time - ONGC denied paying service tax when the same was
subsequently imposed on the service rendered by them. However, with due negotiation
and arbitration, it was decided that the disputed amount would first be paid by the
appellant and the same would be reimbursed by ONGC. Thus, there had also been
confusion regarding the liability of the appellant. However, such contention was not
accepted by the Department.
Observations of the Court: The High Court made the following three important
observations:
(i) The levy was comparatively new and therefore, both unawareness and confusion
were quite possible particularly considering the strata to which the members of the
appellant society belonged to. They were essentially agriculturists, who lost their
lands when plant of ONGC was set up, and therefore, had created society and for
many years they were providing rent-a-cab service to the ONGC.
(ii) There were divergent views of different benches of Tribunal, which may have added
to such confusion.
(iii) The fact that the appellant had persuaded their right of reimbursement of payment
of service tax with the ONGC by way of conciliation and arbitration cannot deprive
them of the defence of bona fide belief of applicability of service tax.
The High Court opined that since the appellant was a society of persons, which was
created in the interest of land losers - who had lost their lands with the ONGC setting up
its plant in the area - and operating without any profit model, the submissions of the
appellant ought to have been appreciated in light of overall circumstances. The High
Court rejected the contention of the Revenue that there was no confusion and it was only
on the ground of dispute with ONGC with regard to reimbursement of service tax that the
said amount was not paid.
Decision of the case: The High Court held that even if the appellants were aware of the
levy of service tax and were not paying the amount on the ground of dispute with the
ONGC, there could be no justification in levying the penalty in absence of any fraud,
misrepresentation, collusion or wilful mis-statement or suppression. Moreover, when the
entire issue for levying of the tax was debatable, that also would surely provide legitimate
ground not to impose the penalty.
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5
OTHER PROVISIONS
1. Can an appeal be filed in a High Court for deciding the question relating to the
taxability of service?
CCEx. & ST v. Volvo India Ltd. 2011 (24) S.T.R. 25 (Kar.)
Decision of the case: The High Court held that the question as to whether the assessee
is liable to pay service tax falls squarely within the exception carved cut in section 35G of
the Central Excise Act, 1944, viz. an order relating, among other things, to the
determination of any question having a relation to the rate of duty of excise or to the
value of goods for purposes of assessment, and the High Court has no jurisdiction to
adjudicate the said issue. The appeal lies to the Apex Court under section 35L of the
Central Excise Act, 1944, which alone has exclusive jurisdiction to decide the said
question.
Note: Section 35G(1) of the Central Excise Act, 1944 provides that an appeal shall lie to
the High Court fromevery order passed in appeal by the Appellate Tribunal (not being an
order relating, among other things, to the determination of any question having a
relation to the rate of duty of excise or to the value of goods for purposes of
assessment), if the High Court is satisfied that the case involves a substantial question
of law.
Further, section 35L of the Act, inter alia, provides that an appeal shall lie to the Supreme
Court fromany order passed by the Appellate Tribunal relating, among other things, to
the determination of any question having a relation to the rate of duty of excise or
to the value of goods for purposes of assessment.

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CUSTOMS


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1
BASIC CONCEPTS
1. In case no statutory definition is provided under law, can the opinion of a trade
expert who deals in those goods be considered while determining duty liability?
Commissioner of Customs (Import), Mumbai v. Konkan Synthetic Fibres 2012 (278)
E.L.T. 37 (S.C.)
Facts of the Case: Konkan Synthetic Fibres imported one unit of the equipment which
was declared as Kari Mayer High Speed Draw Warping Machine with 1536 ends along
with essential spares. The assessee claimed that these goods were covered under an
exemption notification.
Under the said notification, exemption was available in respect of the High Speed
Warping Machine with yarn tensioning, pneumatic suction devices and accessories.
However, the machine imported by the assessee had drawing unit and not the pneumatic
suction device as prescribed in the notification. The Textile Commissioner-who was well
conversant with these machines-had stated that the goods imported by the assessee
were covered under the exemption notification as drawing unit was just an essential
accessory to the machines imported by assessee.
The Customs authorities refused to grant the benefit of the exemption notification to the
assessee and accordingly, directed the assessee to pay the duty under the provisions of
the Customs Act, 1962.
Point of Dispute: The Revenue contended that the machine imported by the assessee
was not in consonance with the exemption notification as it had drawing unit and not the
pneumatic suction device and, therefore, the benefit of exemption should not be available
under the notification to the assessee.
Decision of the Case: The Supreme Court stated that it was a settled proposition in a
fiscal or taxation law that while ascertaining the scope or expressions used in a particular
entry, the opinion of the expert in the field of trade, who deals in those goods, should not
be ignored, rather it should be given due importance. The Supreme Court on referring to
the case of Collector of Customs v. Swastik Woollens (P) Ltd. 1988 (37) E.L.T. 474
(S.C.), held that when no statutory definition was provided in respect of an item in the
Customs Act or the Central Excise Act, the trade understanding, i.e. the understanding in
the opinion of those who deal with the goods in question was the safest guide.
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Thus, the Supreme Court concluded that the imported goods were covered under the
exemption notification.
2. Are the clearance of goods fromDTA to Special Economic Zone chargeable to
export duty under the SEZ Act, 2005 or the Customs Act, 1962?
Tirupati Udyog Ltd. v. UOI 2011 (272) E.L.T. 209 (A.P.)
Decision of the case: The High Court, on the basis of the following observations,
inferred that the clearance of goods from DTA to Special Economic Zone is not liable to
export duty either under the SEZ Act, 2005 or under the Customs Act, 1962:-
A charging section has to be construed strictly. If a person has not been brought
within the ambit of the charging section by clear words, he cannot be taxed at all.
SEZ Act does not contain any provision for levy and collection of export duty for
goods supplied by a DTA unit to a Unit in a Special Economic Zone for its
authorised operations. In the absence of a charging provision in the SEZ Act
providing for the levy of customs duty on such goods, export duty cannot be levied
on the DTA supplier by implication.
With regard to the Customs Act, 1962, a conjoint reading of section 12(1) with
sections 2(18), 2(23) and 2(27) of the Customs Act, 1962 makes it clear that
customs duty can be levied only on goods imported into or exported beyond the
territorial waters of India. Since both the SEZ unit and the DTA unit are located
within the territorial waters of India, Section 12(1) of the Customs Act 1962 (which is
the charging section for levy of customs duty) is not attracted for supplies made by
a DTA unit to a unit located within the Special Economic Zone.
Notes:
1. Chapter X-A of the Customs Act, 1962, inserted by the Finance Act 2002, contained
special provisions relating to Special Economic Zones. However, with effect from
11-5-2007, Chapter X-A, in its entirety, was repealed by the Finance Act, 2007.
Consequently, Chapter X-A of the Customs Act is considered as a law which never
existed for the purposes of actions initiated after its repeal and thus, the provisions
contained in this chapter are no longer applicable.
2. Karnataka High Court in case of CCE v. Biocon Ltd. 2011 (267) E.L.T. 28 has also
taken a similar view as elucidated in the aforesaid judgment.
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2
LEVY OF AND EXEMPTIONS FROMCUSTOMS
DUTY
1. Whether remission of duty is permissible under section 23 of the Customs Act,
1962 when the remission application is filed after the expiry of the warehousing
period (including extended warehousing period)?
CCE v. Decorative Laminates (I) Pvt. Ltd. 2010 (257) E.L.T. 61 (Kar.)
Facts of the case: The respondent imported resin impregnated paper and plywood for
the purpose of manufacture of furniture. The said goods were warehoused from the date
of its import. The respondent sought an extension of the warehousing period which was
granted by the authorities. However, even after the expiry of the said date, it did not
remove the goods from the warehouse. Subsequently, the assessee applied for
remission of duty under section 23 of the Customs Act, 1962 on the ground that the said
goods had become unfit for use on account of non-availability of orders for clearance.
Observations of the Court: The High Court, while interpreting section 23, stipulated that
section 23 states that only when the imported goods have been lost or destroyed at
any time before clearance for home consumption, the application for remission of
duty can be considered. Further, even before an order for clearance of goods for home
consumption is made, relinquishing of title to the goods can be made; in such event also,
an importer would not be liable to pay duty.
Therefore, the expression at any time before clearance for home consumption
would mean the time period as per the initial order during which the goods are
warehoused or before the expiry of the extended date for clearance and not any period
after the lapse of the aforesaid periods. The said expression cannot extend to a period
after the lapse of the extended period merely because the licence holder has not cleared
the goods within the stipulated time.
Moreover, since in the given case, the goods continued to be in the warehouse, even
after the expiry of the warehousing period, it would be a case of goods improperly
removed from the warehouse as per section 72(1)(b) read with section 71.

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Decision of the case: The High Court, overruling the decision of the Tribunal, held that
the circumstances made out under section 23 were not applicable to the present case
since the destruction of the goods or loss of the goods had not occurred before the
clearance for home consumption within the meaning of that section. When the goods are
not cleared within the period or extended period as given by the authorities, their
continuance in the warehouse will not permit the remission of duty under section 23 of
the Act.
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3
CLASSIFICATION OF GOODS
1. Where a classification (under a Customs Tariff head) is recognized by the
Government in a notification at any point of time, can the same be made applicable
in a previous classification in the absence of any conscious modification in the
Tariff?
Keihin Penalfa Ltd. v. Commissioner of Customs 2012 (278) E.L.T. 578 (S.C.)
Facts of the Case: Department contended that Electronic Automatic Regulators were
classifiable under Chapter sub-heading 8543.89 whereas the assessee was of the view
that the aforesaid goods were classifiable under Chapter sub-heading 9032.89. An
exemption notification dated 1-3-2002 exempted the disputed goods by classifying them
under chapter sub-heading 9032.89. The period of dispute, however, was prior to
01.03.2002.
Point of Dispute: The dispute was on classification of Electronic Automatic Regulators.
Decision of the Case: The Apex Court observed that the Central Government had
issued an exemption notification dated 1-3-2002 and in the said notification it had
classified the Electronic Automatic Regulators under Chapter sub-heading 9032.89.
Since the Revenue itself had classified the goods in dispute under Chapter sub-heading
9032.89 from 1-3-2002, the said classification needs to be accepted for the period prior
to it.
2. Whether classification of the imported product changes if it undergoes a change
after importation and before being actually used?
Atherton Engineering Co. Pvt. Ltd. v. UOI 2010 (256) E.L.T. 358 (Cal.)
Facts of the case: The importer sought to classify the product imported by him i.e.
Artemia Cyst (Brine Shrimp eggs) under heading 2309 which included products used as
animal feed. However, Revenue contended that the said product was not prawn feed at
all and was classifiable under the heading 0511.99 which refers to other products in the
category of non edible animal products.
Revenue claimed that these cysts had to be incubated in controlled temperature and
oxygen and hydrated in hatcheries. After this incubation, one would get an organism
known as Nauplii which is the food for prawn. Therefore, according to them these
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imported goods have to undergo some processes to become prawn feed. Thus, there
was misdeclaration of goods
Observations of the Court: The Court noted that if a product undergoes some
change after importation till the time it is actually used, the classification will not
be effected provided it remains the same product and it is used for the purpose
specified in the classification. Therefore, in the instant case, it examined whether the
nature and character of the product (Brine Shrimp eggs) remained the same.
The Court opined that if an embryo within the egg is incubated in controlled temperature
and under hydration, a larva is born. This larva does not assume the character of any
different product. Its nature and characteristics are same as the product or organism
which is within the egg.
Decision of the case: Therefore, in the given case the Brine Shrimp eggs containing
embryo should be classified as feeding materials for prawns under the heading 2309.
These embryos might not be proper prawn feed at the time of importation but could
become so, after incubation. Thus, the Court accepted the classification sought by the
assessee.
3. (i) Will the description of the goods as per the documents submitted along with the
Shipping Bill be a relevant criterion for the purpose of classification, if not
otherwise disputed on the basis of any technical opinion or test? (ii) Whether a
separate notice is required to be issued for payment of interest which is mandatory
and automatically applies for recovery of excess drawback?
M/s CPS Textiles P Ltd. v. J oint Secretary 2010 (255) ELT 228 (Mad.)
Decision of the case: The High Court held that the description of the goods as per the
documents submitted along with the Shipping Bill would be a relevant criterion for the
purpose of classification, if not otherwise disputed on the basis of any technical opinion
or test. The petitioner could not plead that the exported goods should be classified under
different headings contrary to the description given in the invoice and the Shipping Bill
which had been assessed and cleared for export.
Further, the Court, while interpreting section 75A(2) of the Customs Act, 1962, noted that
when the claimant is liable to pay the excess amount of drawback, he is liable to pay
interest as well. The section provides for payment of interest automatically along with
excess drawback. No notice for the payment of interest need be issued separately as the
payment of interest becomes automatic, once it is held that excess drawback has to be
repaid.
Note - The Headings cited in some of the case laws in this chapter may not co-
relate with the Headings of the present Customs Tariff as these cases relate to an
earlier point of time.
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4
VALUATION UNDER THE CUSTOMS ACT, 1962
1. Whether subsequent increase in the market price of the imported goods due to
inflation would lead to increase in customs duty although the contract price
between the parties has not increased accordingly?
Commissioner of Cus., Vishakhapatnamv. Aggarwal Industries Ltd. 2011 (272)
E.L.T. 641 (S.C.)
Facts of the Case: On 26th June 2001, assessee entered into a contract with foreign
suppliers for import of crude sunflower seed oil at the rate of US $ 435 CIF/metric ton.
Under the contract, the consignment was to be shipped in the month of July 2001.
However, the mutually agreed time for shipment was extended to mid August 2001.
Thus, the goods were actually shipped on 5th August, 2001 at the price prevailing at the
contract date.
Point of Dispute: The Revenue contended that when actual shipment took place, after
the expiry of the original shipment period, the international market price of crude
sunflower seed oil had increased drastically, and, therefore, the contract price could not
be accepted as the transaction value in terms of rule 4 of the erstwhile Customs
Valuation (Determination of Price of Imported Goods) Rules, 1988 [now rule 3 of
Customs Valuation (Determination of Value of Imported Goods) Rules, 2007]. Therefore
the duty should be imposed on the increased prices.
Decision of the Case: The Supreme Court held that in the instant case, the contract for
supply of crude sunflower seed oil @ US $ 435 CIF/ metric ton was entered into on 26th
June 2001. It could not be performed on time because of which extension of time for
shipment was agreed between the contracting parties. It was true that the commodity
involved had volatile fluctuations in its price in the international market, but having
delayed the shipment; the supplier did not increase the price of the commodity even after
the increase in its price in the international market. There was no allegation of the
supplier and the assessee being in collusion. Thus, the increased price cannot be
considered for valuation of crude sunflower seed oil. Consequently, the appeal was
allowed in the favour of the respondent- assessee.


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5
IMPORTATION, EXPORTATION AND
TRANSPORTATION OF GOODS
1. Can the time-limit prescribed under section 48 of the Customs Act, 1962 for
clearance of the goods within 30 days be read as time-limit for filing of bill of entry
under section 46 of the Act?
CCus v. Shreeji Overseas (India) Pvt. Ltd. 2013 (289) E.L.T. 401 (Guj.)
The aforesaid question came up for consideration before the High Court. The High Court
noted that though section 46 does not provide for any time-limit for filing a bill of entry by
an importer upon arrival of goods, section 48 permits the authorities to sell the goods
after following the specified procedure, provided the same are not cleared for home
consumption/ warehoused/ transhipped within 30 days of unloading the same at the
customs station. The High Court however held that the time-limit prescribed under
section 48 for clearance of the goods within 30 days cannot be read into section 46 and it
cannot be inferred that section 46 prescribes any time-limit for filing of bill of entry.
Note: Section 46 of the Customs Act, 1962 contains the provisions relating to filing of bill
of entry in relation to imported goods by the importer with the proper officer. It provides
that the bill of entry may be presented at any time after the delivery of the import
manifest/import report as the case may be, but does not prescribe any specific time-limit
for the presentation of the same.
Section 48 provides that if any goods brought into India froma place outside India are
not cleared for home consumption or warehoused or transhipped within 30 days fromthe
date of the unloading thereof at a customs station or within such further time as the
proper officer may allow or if the title to any imported goods is relinquished, such goods
may, after notice to the importer and with the permission of the proper officer be sold by
the person having the custody thereof.
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6
WAREHOUSING
1. Whether the issue of the imported goods warehoused in the premises of 100% EOU
for manufacture/production/processing in 100% EOU would amount to clearance
for home consumption?
Paras Fab International v. CCE 2010 (256) E.L.T. 556 (Tri. LB)
Issue: Following questions arose before the Larger Bench of the Tribunal for
consideration:-
(a) Whether the entire premises of 100% EOU should be treated as a warehouse?
(b) Whether the imported goods warehoused in the premises of 100% EOU are to be
held to have been removed from the warehouse if the same is issued for
manufacture/production/processing by the 100% EOU?
(c) Whether issue for use by 100% EOU would amount to clearance for home
consumption?
Facts of the case: The appellants were 100% EOU in Alwar. They imported the
impugned goods namely HSD oil through Kandla Port and filed into Bond Bill of Entry for
warehousing the imported goods. The impugned goods were warehoused in their 100%
EOU in Alwar and subsequently used in the factory within the premises of the 100% EOU
for manufacture of the finished goods. The Department demanded customs duty on the
impugned goods.
The contention of the appellants was that since (i) the entire premises of the 100% EOU
had been licensed as a warehouse under the Customs Act; (ii) the impugned goods had
been warehoused therein and subsequently utilized for manufacture of finished goods in
bond; and (iii) the impugned goods had not been removed from the warehouse, there
could not be any question of demanding duty on the same.
Department contended that the entire premises of the 100% EOU could not be treated as
a warehouse. The Appellants had executed a common bond B-17 for fulfilling the
requirements under the Customs Act, 1962 and the Central Excise Act, 1944. Under the
Central Excise Law, the removal of goods for captive consumption would be treated as
removal of goods and the assessee were required to pay duty on such removal.
Observations of the Court: The Tribunal observed that as per Customs manual, the
premises of EOU are approved as a Customs bonded warehouse under the Warehousing
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provisions of the Customs Act. It is also stated therein that the manufacturing and other
operations are to be carried out under customs bond. The goods are required to be
imported into the EOU premises directly and prior to undertaking import, the unit is
required to get the premises customs bonded. The importer is required to maintain a
proper record and proper account of the import, consumption and utilization of all
imported materials and exports made and file periodical returns. The EOUs are licensed
to manufacture goods within the bonded premises for the purpose of export.
Tribunal held that neither the scheme of the Act nor the provisions contained in the
Manual require filing of ex-bond bills of entry or payment of duty before taking the
imported goods for manufacturing in bond nor there is any provision to treat such goods
as deemed to have been removed for the purpose of the Customs Act, 1962.
Decision of the case: The Tribunal answered the issues raised as follows:-
(a) The entire premises of a 100% EOU has to be treated as a warehouse if the licence
granted under to the unit is in respect of the entire premises.
(b) and (c) Imported goods warehoused in the premises of a 100% EOU (which is
licensed as a Customs bonded warehouse) and used for the purpose of manufacturing in
bond as authorized under section 65 of the Customs Act, 1962, cannot be treated to
have been removed for home consumption.
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7
DEMAND &APPEALS
1. Can Tribunal condone the delay in filing of an application consequent to reviewby
the Committee of Chief Commissioners if it is satisfied that there was sufficient
cause for not presenting the application within the prescribed period?
Thakker Shipping P. Ltd. v. Commissioner of Customs (General) 2012 (285) E.L.T.
321 (S.C.)
Facts of the case: The Commissioner of Customs (General), in his order-in-original,
dropped the proceedings which were initiated against the appellant. The Committee of
Chief Commissioners of Customs constituted under section 129A(1B) of the Customs
Act, 1962 reviewed his order and directed him to apply to the Tribunal for determination
of certain points. The Commissioner, accordingly, made an application under section
129D(4) of the Act before the Tribunal. As the said application could not be made within
the prescribed period and was delayed by 10 days, an application for condonation of
delay was filed with a prayer for condonation. However, Tribunal rejected the application
for condonation of delay on the ground that Tribunal had no power to condone the delay
caused in filing the application under section 129D(4) by the Department beyond the
prescribed period of three months.
Point of dispute: The question which arose for consideration before this Court was
whether it was competent for the Tribunal to invoke section 129A(5) where an application
under section 129D(4) had not been made by the Commissioner within the prescribed
time and to condone the delay in making such application if it was satisfied that there
was sufficient cause for not presenting it within that period.
Observations of the Court: The High Court observed that Parliament intended that
entire section 129A, as far as applicable, should be supplemental to section 129D(4).
For the sake of brevity, instead of repeating what had been provided in section 129A as
regards the appeals to the Tribunal, it had been provided that the applications made by
the Commissioner under section 129D(4) should be heard as if they were appeals made
against the decision or order of the adjudicating authority and the provisions relating to
the appeals to the Tribunal would apply in so far as they might be applicable.
The expression, including the provisions of section 129A(4) was by way of
clarification and had been so said expressly to remove any doubt about the applicability
of the provision relating to cross objections to the applications made under section
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129D(4) otherwise it could have been inferred that provisions relating to appeals to the
Tribunal had been made applicable and not the cross objections. The use of expression
so far as may be was to bring general provisions relating to the appeals to Tribunal
into section 129D(4).
Consequentially, section 129A(5) also stood incorporated in section 129D(4) by way of
legal fiction and must be given effect to. In other words, if the Tribunal was satisfied that
there was sufficient cause for not presenting the application under section 129D(4) within
prescribed period, it might condone the delay in making such application and hear the
same.
Decision of the case: In light of the above discussion, the High Court ruled that the
Tribunal was competent to invoke section 129A(5) where an application under section
129D(4) had not been made within the prescribed time and condone the delay in making
such application if it was satisfied that there was sufficient cause for not presenting it
within that period.
Note: The provisions of section 129A(5) and 129D(4) of the Customs Act, 1962 have
been outlined below:-
Section129A(5): The Appellate Tribunal may admit an appeal or permit the filing of a
memorandumof cross-objections after the expiry of the relevant period referred to in
sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not
presenting it within that period.
Section 129D(4): Where in pursuance of an order under sub-section (1) or sub-section
(2), the adjudicating authority or any officer of customs authorised in this behalf by the
Commissioner of Customs, makes an application to the Appellate Tribunal or the
Commissioner (Appeals) within a period of one month fromthe date of communication of
the order under sub-section (1) or sub-section (2) to the adjudicating authority, such
application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as
the case may be, as if such application were an appeal made against the decision or
order of the adjudicating authority and the provisions of this Act regarding appeals,
including the provisions of section 129A(4) shall, so far as may be, apply to such
application.
2. Whether extended period of limitation for demand of customs duty can be invoked
in a case where the assessee had sought a clarification about exemption froma
wrong authority?
Uniworth Textiles Ltd. vs. CCEx. 2013 (288) ELT 161 (SC)
Facts of the case: Assessee, an EOU, purchased electricity generated by the captive
power plant of its sister unit. The furnace oil required for running the captive power plant
was imported by the sister unit and the same was exempt from payment of customs duty
under a relevant exemption notification. Later, the sister unit informed the assessee that
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it could not supply the electricity to the assessee as it would run the captive power plant
for its own use only. Consequently, as a temporary measure, for overcoming this
difficulty, the assessee imported furnace oil and supplied the same to sister unit for
generation of electricity, which it continued to receive as before. The assessee also
claimed exemption on import of furnace oil under the same notification as was claimed by
its sister unit.
As the assessee was procuring furnace oil for captive power plant of another unit, it
sought a clarification from the Development Commissioner seeking as to whether import
of furnace oil and receipt of electricity would be liable to duty. The Development
Commissioner replied in favour of the assessee quoting letter by Ministry of Commerce
and thereafter, the assessee claimed the exemption. However, irrespective of the
clarification from the Development Commissioner, a show cause notice demanding duty
was issued on the assessee more than six months after he had imported furnace oil on
behalf of it sister unit. The contention of the Revenue was that the entitlement of duty
free import of fuel for its captive power plant lies with the owner of the captive power
plant, and not the consumer of electricity generated from that power plant.
Observations of the Court: The Apex Court observed that the primary issue under
consideration in this case was the applicability of extended period of limitation for issuing
a demand notice. The Apex Court noted that section 28 of the Customs Act clearly
contemplates two situations, viz. inadvertent non-payment and deliberate default. The
former is canvassed in the main body of section 28 and is met with a limitation period of
six months, whereas the latter, finds abode in the proviso to the section and faces a
limitation period of five years. For the operation of the proviso, the intention to
deliberately default is a mandatory prerequisite.
The Supreme Court observed that the assessee had shown bona fide conduct by seeking
clarification from the Development Commissioner and in a sense had offered its activities
to assessment. Only on receiving a satisfactory reply from the Development
Commissioner did the assessee claim the exemption. The Apex Court elaborated that
even if the Development Commissioner was not the most suitable repository of the
answers sought by the assessee, it did not negate the bona fide conduct of the
assessee. It still showed that assessee made efforts to adhere to the law rather than its
breach.
The Tribunals finding that the assessee had not brought anything on record to prove
their claim of bona fide conduct did not find favour with the Apex Court. The Supreme
Court reiterated that the burden of proving any form of mala fide lies on the shoulders of
the one alleging it.
Decision of the case: The Supreme Court held that mere non-payment of duties could
not be equated with collusion or wilful misstatement or suppression of facts as then there
would be no form of non-payment which would amount to ordinary default. The Apex
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Court opined that something more must be shown to construe the acts of the assessee
as fit for the applicability of the proviso.
Note: Section 28 of the Customs Act, 1962 as stated in the above case is based on the
old provisions of law. As per the amended section 28, the time limit for issuing a demand
notice in case of inadvertent non-payment of duty is one year fromthe relevant date and
such provisions find place in sub-section (1) of section 28. Issue of demand notice by
invoking the extended period of limitation (five years fromthe relevant date) in case of
deliberate default is covered under sub-section (4) of section 28. However, it may be
noted that the principle enunciated in the above case will hold good even after the
amendment made in section 28.
3. Whether non-filing of additional documents despite several opportunities being
given to the assessee to produce the same, could be a sufficient ground for
passing a non-speaking order?
DBOI Global Service Pvt. Ltd. v. UOI 2013 (29) S.T.R. 117 (Bom.)
Facts of the case: In the instant case, the adjudicating authority had disallowed the
refund claim filed by the assessee and called for certain additional documents, although
similar refund claims filed by the assessee for the earlier periods had been allowed by
the adjudicating authority without these additional documents. The assessee failed to
furnish the additional documents despite being given several opportunities to produce the
same. The adjudicating authority passed an order rejecting the refund claim but failed to
record any reason as to why it differed with the earlier decisions.
Points of dispute: The assessee pleaded that since the adjudicating authority has failed
to state any reason for differing with the earlier decisions, its order must be quashed.
Revenue contended that the adjudicating authority was justified in passing the non-
speaking order because inspite of several opportunities given to produce additional
documents, the assessee had failed to produce those documents.
Decision of the case: The High Court held that if the assessee had failed to furnish
additional information, it had been obligatory on the part of the adjudicating authority to
record a finding as to why the documents furnished by the assessee were not sufficient
to allow his claim and why additional documents were necessary, especially when on the
basis of similar documents furnished by the assessee in the past, the claims had been
allowed. Thus, deciding the petition in favour of the assessee, the High Court set aside
the order of the adjudicating authority.

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8
REFUND
1. Whether a Chartered Accountants certificate acknowledging certain facts is a
sufficient evidence to rule out the unjust enrichment under customs?
CCus., Chennai v. BPL Ltd. 2010 (259) E.L.T. 526 (Mad.)
Observations of the Court: The High Court noted that section 27 of the Customs Act
mandates the importer to produce such documents or other evidence, while seeking
refund, to establish that the burden of duty in relation to which such refund is claimed,
has not been passed on by him to any other person.
However, in the given case, the respondent had not produced any document other than
the certificate issued by the Chartered Accountant to substantiate its refund claim. The
certificate issued by the Chartered Accountant was merely a piece of evidence
acknowledging certain facts. It would not automatically entitle a person to refund in the
absence of any other evidence.
Decision of the case: Hence, the High Court, overruling the Tribunals decision, held
that the respondent could not be granted refund merely on the basis of Chartered
Accountants certificate acknowledging certain facts as it did not rule out the unjust
enrichment.
2. Can the assessee be denied the refund claimof pre-deposit if he produces the
attested copy of TR-6 challan* and not the original TR-6 challan*?
Narayan Nambiar Meloths v. CCus. 2010 (251) E.L.T. 57 (Ker.)
Facts of the case: In the instant case, the refund application for pre-deposit filed by the
assessee was not entertained on the ground that the petitioner had not produced original
TR-6 Challan* and what was produced was only an attested copy. According to
respondents, production of original TR-6 challan* was a mandatory requirement for
processing the refund application.
Decision of the case: The Kerela High Court decided that the petitioner could not be
denied the refund claim for pre-deposit on account of following mentioned grounds:-
Firstly, the Court opined that the only contention raised against the petitioner that TR-6
Challan* produced by him was only an attested copy, was purely a technical contention
and could not be accepted.
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Secondly, as per clarification issued vide F.No. 275/37/2K-CX. 8A dated 2-1-2002, a
simple letter fromthe person who made the deposit, requesting for return of the
amount, along with the appellate order and attested Xerox copy of the Challan in
FormTR-6* would suffice for processing the refund application. Evidently, in the
instant case, the petitioner had fully complied with the requirement laid down in this
clarification.
*Note: Now TR-6 challan has been replaced with GAR-7 challan
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9
PROVISIONS RELATING TO ILLEGAL IMPORT,
ILLEGAL EXPORT, CONFISCATION, PENALTY &
ALLIED PROVISIONS
1. Whether the benefit of exemption meant for imported goods can also be given to
the smuggled goods?
CCus. (Prev.), Mumbai v. M. Ambalal & Co. 2010 (260) E.L.T. 487 (SC)
Observations of the Court: The question which arose before the Apex Court for
consideration was whether goods that were smuggled into the country could be
considered as imported goods for the purpose of granting the benefit of the exemption
notification.
The Apex Court held that the smuggled goods could not be considered as imported
goods for the purpose of benefit of the exemption notification. It opined that if the
smuggled goods and imported goods were to be treated as the same, then there would
have been no need for two different definitions under the Customs Act, 1962.
The Court observed that one of the principal functions of the Customs Act was to curb
the ills of smuggling in the economy.
Decision of the case: Hence, it held that it would be contrary to the purpose of
exemption notifications to give the benefit meant for imported goods to smuggled goods.
2. Whether declaration of a value lower than the value indicated by the foreign valuer
amounts to mis-declaration of value leading to confiscation of goods even if
subsequently, duty is paid by the importer on the higher value indicated by the
local valuer?
Wringley India Pvt. Ltd. v. Commr.of Cus.(Imports), Chennai 2011 (274) E.L.T. 172
(Mad.)
Facts of the Case: The assessee had imported second-hand machinery along with
spare parts from its sister concern located at Spain. There was indication in the invoice
that the machinery was certified by the load port Chartered Engineer of Spain. However,
the certificate issued by the load port Chartered Engineer of Spain was not enclosed
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along with the Bill of Entry and only the invoice was submitted. Since the appellant didnt
submit the valuation report, the Custom authorities referred the matter for valuation to a
local valuer. During the process of valuation, the local valuer found that value of the
machinery had been underestimated by the assessee. On being issued a show cause
notice for mis-declaration of the value of the imported goods, assessee paid duty on the
value indicated as per the original report of the load port Chartered Engineer of Spain,
which was higher than the value declared by it.
Point of Dispute: The Revenue contended that since the appellant had mis-declared the
value of the goods imported, the imported goods should be confiscated under section
111(m) of the Customs Act, 1962.
Decision of the Case: The High Court held that the appellant had made deliberate
misdeclaration of the value of the imported goods and misguided the Customs
Department as even after getting direction to get valuation from local chartered engineer,
it was not disclosed that valuation had already been done at load port. Further, it was
also not the importers case that they did not have in their possession the certificate of
load port Chartered Engineer. Even after obtaining the valuation certificate from the local
valuer, the appellant had no regrets. In fact, the valuation so done by the local Chartered
Engineer was readily accepted by the appellant as evident from the letter issued by them
to the Customs Department and the subsequent payment made by them.
The High Court thus inferred that there was clear mis-declaration of value by the
appellant and as per section 111(m) of the Customs Act, the Revenue was asked to
confiscate the goods so imported.
Note-With effect from08.04.2011, self assessment has been introduced in the Customs
Law. This case pertains to a period prior to introduction of self-assessment. However,
since the proper officer has the power to verify value assessed by the importer under the
present law as well, the principle enunciated in this case holds good.
3. Is it mandatory for the Revenue officers to make available the copies of the seized
documents to the person fromwhose custody such documents were seized?
Manish Lalit Kumar Bavishi v. Addl. DIR. General, DRI 2011 (272) E.L.T. 42 (Bom.)
Facts of the case: The assessee sought copies of the documents seized from his office
premises under panchanama and print outs drawn from the Laptop during his attendance
in DRI. However, Revenue officers replied that the documents would be provided to him
on completion of the investigation.
Decision of the case: The High Court held that from the language of section 110(4), it
was apparent that the Customs officers were mandatorily required to make available the
copies asked for. It was the party concerned who had the choice of either asking for the
document or seeking extract, and not the officer.
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If any document was seized during the course of any action by an officer and relatable to
the provisions of the Customs Act, that officer was bound to make available copies of
those documents. The denial by the Revenue to make the documents available was
clearly an act without jurisdiction.
The High Court directed the Revenue to make available the copies of the documents
asked for by the assessee which were seized during the course of the seizure action.
4. Is it necessary to establish omissions/commissions leading to evasion of duty
before imposing the penalty under section 112(a)(ii) of the Customs Act, 1962?
O.T. Enasu v. UOI 2011 (272) E.L.T. 51 (Ker.)
The High Court noted that under sub-clause (ii) of clause (a) of section 112, the liability
to penalty is determined on the basis of duty sought to be evaded. Therefore, the
jurisdictional fact to impose a penalty in terms of section 112(a)(ii) includes the essential
ingredient that duty was sought to be evaded. Being a penal provision, it requires to
be strictly construed. Evade means, to escape, slip away, to escape or avoid artfully, to
shirk, to baffle, elude. The concept of evading involves a conscious exercise by the
person who evades. Therefore, the process of seeking to evade essentially involves a
mental element and the concept of the status sought to be evaded is arrived at only by
a conscious attempt to evade.
In view of the above discussion, the High Court inferred that unless it is established that a
person has, by his omissions or commissions, led to a situation where duty is sought to be
evaded, there cannot be an imposition of penalty in terms of section 112(a)(ii) of the Act.
Note: Section 112(a)(ii) provides that any person who, in relation to any dutiable goods other
than prohibited goods, does or omits to do any act which would render such goods liable to
confiscation under section 111, or abets the doing or omission of such an act shall be to a
penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees,
whichever is the greater.
5. Can separate penalty under section 112 of the Customs Act be imposed on the
partners when the same has already been imposed on the partnership firm?
Textoplast Industries v. Additional Commissioner of Customs 2011 (272) E.L.T. 513
(Bom.)
Observations of the Court: The High Court noted that as per explanation to section 140
of the Customs Act, 1962 the term Company includes a firm or an association of
individuals and the term director in relation to a firm means a partner of the firm. The
High Court observed that in case of Apex Court judgment of Standard Chartered Bank v.
Directorate of Enforcement, there emerged the principle that the deeming fiction is not
confined to a criminal prosecution but will also extend to an adjudication proceeding as
well. Hence, the High Court, in the instant case, held that the deeming fiction in section
140(2) making Director, Manager, Secretary or other officer of company liable to penalty,
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would not be confined to criminal prosecution but extends to adjudication proceeding as
well.
The High Court explained that had it been otherwise, it would have led to strange
situation where, for criminal prosecution, partner as well as person in charge responsible
for conduct of business of partnership firm would be liable whereas for adjudication
purposes, a narrower construction had to be adopted. There was no reason to exclude
penalty on partnership firm, particularly when it was consistent with overall scheme and
object of the Act.
Decision of the case: In view of the above discussion, the High Court held that for the
purpose of imposing penalty, the adjudicating authority under Customs Act, 1962 might,
in an appropriate case, impose a penalty both upon a partnership firm as well as on its
partners.
6. In case of undervaluation of goods, can the confiscation order be cancelled for the
want of evidence fromthe foreign supplier?
CCus. v. J aya Singh Vijaya J haveri 2010 (251) E.L.T. 38 (Ker.)
Decision of the case: In the instant case, the High Court held that in a case of
confiscation of goods because of their under valuation, Tribunal could not cancel the
confiscation order for the want of evidence from the foreign supplier. The Court
considered it be illogical that a person who was a party to undervaluation would give
evidence to the Department to prove the case that the invoice raised by him on the
respondent was a bogus one and that they had received underhand payment of the
differential price. Resultantly, the Court upheld the confiscation order.
7. Whether the smuggled goods can be re-exported fromthe customs area without
formally getting themreleased fromconfiscation?
In Re: Hemal K. Shah 2012 (275) ELT 266 (GOI)
Facts of the Case: Shri Hemal K. Shah, a passenger, who arrived at SVPI Airport,
Ahmedabad, had declared the total value of goods as ` 13,500 in the disembarkation
slip. On detailed examination of his baggage, it was found to contain Saffron, Unicore
Rhodium Black, Titan Wrist watches, Mobile Phones, assorted perfumes, Imitation stones
and bags. Since, the said goods were in commercial quantity and did not appear to be a
bona fide baggage; the same were placed under seizure. The passenger in his statement
admitted the offence and showed his readiness to pay duty on seized goods or re-
shipment of the said goods. The adjudicating authority determined total value of seized
goods; ordered confiscation of seized goods under section 111(d) and 111(m) of the
Customs Act, 1962; imposed penalty on Hemal K. Shah; confirmed and ordered for
recovery of customs duty on the goods with interest and gave an option to redeem the
goods on payment of a fine which should be exercised within a period of three months
from date of receipt of the order. On appeal by Hemal K. Shah, the appellate authority
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allowed re-export of the confiscated goods. Against this order, the Department filed a
revision application before the Revisionary Authority under section 129DD of the
Customs Act, 1962.
Point of Dispute: The Department questioned the re-export of confiscated goods. They
contended that the goods which had been confiscated were being smuggled in by the
passenger without declaring the same to the Customs and were in commercial quantity.
In view of these facts, the appellate authority had erred in allowing the re-export of the
goods on payment of redemption fine.
Decision of the Case: The Government noted that the passenger had grossly mis-
declared the goods with intention to evade duty and to smuggle the goods into India. As
per the provisions of section 80 of the Customs Act, 1962 when the baggage of the
passenger contains article which is dutiable or prohibited and in respect of which the
declaration is made under section 77, the proper officer on request of passenger can
detain such article for the purpose of being returned to him on his leaving India. Since
passenger neither made true declaration nor requested for detention of goods for re-
export, before customs authorities at the time of his arrival at airport, the re-export of said
goods could not be allowed under section 80 of the Customs Act.
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10
SETTLEMENT COMMISSION
1. In case of a Settlement Commission's order, can the assessee be permitted to
accept what is favourable to themand reject what is not?
Sanghvi Reconditioners Pvt. Ltd. V. UOI 2010 (251) ELT 3 (SC)
Decision of the case: The Apex Court held that the application under section 127B of
the Customs Act, 1962 is maintainable only if the duty liability is disclosed. The
disclosure contemplated is in the nature of voluntary disclosure of concealed additional
customs duty. The Court further opined that having opted to get their customs duty
liability settled by the Settlement Commission, the appellant could not be permitted to
dissect the Settlement Commission's order with a view to accept what is
favourable to themand reject what is not.
2. Does the Settlement Commission have jurisdiction to settle cases relating to the
recovery of drawback erroneously paid by the Revenue?
Union of India v. Cus. & C. Ex. Settlement Commission 2010 (258) ELT 476 (Bom.)
Facts of the case: The above question was the issue for consideration in a writ petition
filed by the Union of India to challenge an order passed by the Settlement Commission in
respect of a proceeding relating to recovery of drawback. The Commission vide its
majority order overruled the objection taken by the Revenue challenging jurisdiction of
the Commission and vide its final order settled the case. The aforesaid order of the
Settlement Commission was the subject matter of challenge in this petition.
The contention of the Revenue was that the recovery of duty drawback does not involve
levy, assessment and collection of customs duty as envisaged under section 127A(b) of
the Customs Act, 1962. Therefore, the said proceedings could not be treated as a case
fit to be applied before the Settlement Commission. However, the contention of the
respondent was that the word duty appearing in the definition of case is required to be
given a wide meaning. The Customs Act provides for levy of customs duty as also the
refund thereof under section 27. The respondent contended that the provisions relating
to refund of duty also extend to drawback as drawback is nothing but the return of the
customs duty and thus, the proceedings of recovery of drawback would be a fit case for
settlement before the Commission.
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Observations of the Court: The High Court noted that the Settlement Commission while
considering the aforesaid question of its jurisdiction for taking up the cases relating to
drawback had considered the definition of drawback as defined in rules relating to
drawback as also the definition of the word case as defined in section 127A(b) and after
referring to the various judgments of the Tribunal came to the conclusion that the
Commission had jurisdiction to deal with the application for settlement. The High Court
stated that the reasons given by the Settlement Commission in support of its order are in
consonance with the law laid down by the Supreme Court in the case of Liberty India v.
Commissioner of Income Tax (2009) 317 ITR 218 (SC) wherein the Supreme Court has
observed that drawback is nothing but remission of duty on account of statutory
provisions in the Act and Scheme framed by the Government of India.
Decision of the case: The High Court, thus, concluded that the duty drawback or claim
for duty drawback is nothing but a claim for refund of duty as per the statutory scheme
framed by the Government of India or in exercise of statutory powers under the
provisions of the Act. Thus, the High Court held that the Settlement Commission has
jurisdiction to deal with the question relating to the recovery of drawback
erroneously paid by the Revenue.
The Institute of Chartered Accountants of India
184
11
MISCELLANEOUS PROVISIONS
1. Can a former director of a company be held liable for the recovery of the customs
dues of such company?
Anita Grover v. CCEx. 2013 (288) E.L.T. 63 (Del.)
Facts of the case: A demand notice was raised against the petitioner in respect of the
customs duty payable by a company of which she was a former director. She had
resigned from the Board of the company long time back. The Customs Department
sought to attach the properties belonging to the petitioner for recovery of the dues of the
company. The petitioner contended that the action of the Department was not justified as
the said properties belonged to her and not to the company.
Revenue contended that as director, the petitioner could not distance herself from the
companys acts and omissions; she had to shoulder its liabilities. It was in furtherance of
such obligation that the authorities acted within their jurisdiction in issuing the impugned
notice.
Observations of the Court: Considering the provisions of section 142 of the Customs
Act, 1962 and the relevant rules*, the High Court elucidated that it was only the defaulter
against whom steps might be taken for the recovery of the dues. In the present case, it
was the company who was the defaulter.
Decision of the case: The Court held that since the company was not being wound up,
the juristic personality the company and its former director would certainly be separate
and the dues recoverable from the former could not, in the absence of a statutory
provision, be recovered from the latter. There was no provision in the Customs Act, 1962
corresponding to section 179 of the Income-tax Act, 1961 or section 18 of the Central
Sales Tax, 1956 (refer note below) which might enable the Revenue authorities to
proceed against directors of companies who were not the defaulters.
Note:
1. As per the provisions of section 179 of the Income-tax Act, 1961 and section 18 of
the Central Sales Tax, 1956, in case of a private company in liquidation, where any
tax dues of the company under the relevant statutes cannot be recovered, every
person who was a director of the said company at any time during the period for
which the tax is due shall be jointly and severally liable for the payment of such tax
The Institute of Chartered Accountants of India
185
unless he proves that the non-recovery cannot be attributed to any gross neglect,
misfeasance or breach of duty on his part in relation to the affairs of the company.
Thus, Revenue authorities are empowered to proceed against the directors of the
company for recovery of dues fromthe company under the said statutes.
*2. The Customs (Attachment of Property of Defaulters for Recovery of Government
Dues) Rules, 1995.

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