[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.
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Printed by The Institute of Chartered Accountants of India 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 The Institute of Chartered Accountants of India 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 The Institute of Chartered Accountants of India 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
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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 The Institute of Chartered Accountants of India
2 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. The Institute of Chartered Accountants of India
3 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. The Institute of Chartered Accountants of India
4 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. The Institute of Chartered Accountants of India
5 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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6 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. The Institute of Chartered Accountants of India
7 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. The Institute of Chartered Accountants of India
8 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. The Institute of Chartered Accountants of India
9 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. The Institute of Chartered Accountants of India
10 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. The Institute of Chartered Accountants of India
11 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. The Institute of Chartered Accountants of India
12 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. The Institute of Chartered Accountants of India
13 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 The Institute of Chartered Accountants of India
14 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 The Institute of Chartered Accountants of India
15 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. The Institute of Chartered Accountants of India
16 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. The Institute of Chartered Accountants of India
17 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. The Institute of Chartered Accountants of India
18 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%. The Institute of Chartered Accountants of India
19 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.
The Institute of Chartered Accountants of India
20 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. The Institute of Chartered Accountants of India
21 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 The Institute of Chartered Accountants of India
22 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, The Institute of Chartered Accountants of India
23 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 The Institute of Chartered Accountants of India
24 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. The Institute of Chartered Accountants of India
25 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 The Institute of Chartered Accountants of India
26 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. The Institute of Chartered Accountants of India
27 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 The Institute of Chartered Accountants of India
28 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 The Institute of Chartered Accountants of India
29 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 The Institute of Chartered Accountants of India
30 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 The Institute of Chartered Accountants of India
31 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 The Institute of Chartered Accountants of India
32 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 The Institute of Chartered Accountants of India
33 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. The Institute of Chartered Accountants of India
34 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 The Institute of Chartered Accountants of India
35 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.
The Institute of Chartered Accountants of India
36 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 The Institute of Chartered Accountants of India
37 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- The Institute of Chartered Accountants of India
38 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. The Institute of Chartered Accountants of India
39 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. The Institute of Chartered Accountants of India
40 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. The Institute of Chartered Accountants of India
41 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. The Institute of Chartered Accountants of India
42 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. The Institute of Chartered Accountants of India
43 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 The Institute of Chartered Accountants of India
44 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 The Institute of Chartered Accountants of India
45 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. The Institute of Chartered Accountants of India
46 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 The Institute of Chartered Accountants of India
47 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. The Institute of Chartered Accountants of India
48 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). The Institute of Chartered Accountants of India
49 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 The Institute of Chartered Accountants of India
50 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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51 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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52 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 The Institute of Chartered Accountants of India
53 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 The Institute of Chartered Accountants of India
54 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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55 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. The Institute of Chartered Accountants of India
56 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. The Institute of Chartered Accountants of India
57 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. The Institute of Chartered Accountants of India
58 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. The Institute of Chartered Accountants of India
59 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 The Institute of Chartered Accountants of India
60 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.
The Institute of Chartered Accountants of India
61 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. The Institute of Chartered Accountants of India
62 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. The Institute of Chartered Accountants of India
63 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. The Institute of Chartered Accountants of India
64 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 The Institute of Chartered Accountants of India
65 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. The Institute of Chartered Accountants of India
66 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. The Institute of Chartered Accountants of India
67 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 The Institute of Chartered Accountants of India
68 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. The Institute of Chartered Accountants of India
69 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. The Institute of Chartered Accountants of India
70 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 The Institute of Chartered Accountants of India
71 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 The Institute of Chartered Accountants of India
72 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 The Institute of Chartered Accountants of India
73 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 The Institute of Chartered Accountants of India
74 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 The Institute of Chartered Accountants of India
75 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. The Institute of Chartered Accountants of India
76 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 The Institute of Chartered Accountants of India
77 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 The Institute of Chartered Accountants of India
78 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. The Institute of Chartered Accountants of India
79 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. The Institute of Chartered Accountants of India
80 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. The Institute of Chartered Accountants of India
81 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.
The Institute of Chartered Accountants of India
82 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. The Institute of Chartered Accountants of India
83 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) The Institute of Chartered Accountants of India
84 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. The Institute of Chartered Accountants of India
85 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. The Institute of Chartered Accountants of India
86 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. The Institute of Chartered Accountants of India
87 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. The Institute of Chartered Accountants of India
88 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. The Institute of Chartered Accountants of India
89 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 The Institute of Chartered Accountants of India
90 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 The Institute of Chartered Accountants of India
91 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. The Institute of Chartered Accountants of India
92 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. The Institute of Chartered Accountants of India
93 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 The Institute of Chartered Accountants of India
94 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 The Institute of Chartered Accountants of India
95 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. The Institute of Chartered Accountants of India
96 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. The Institute of Chartered Accountants of India
97 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. The Institute of Chartered Accountants of India
98 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. The Institute of Chartered Accountants of India
WEALTH TAX
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The Institute of Chartered Accountants of India
99 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. The Institute of Chartered Accountants of India
100 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.
The Institute of Chartered Accountants of India
CENTRAL EXCISE
The Institute of Chartered Accountants of India
The Institute of Chartered Accountants of India 101 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 The Institute of Chartered Accountants of India 102 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 The Institute of Chartered Accountants of India 103 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 The Institute of Chartered Accountants of India 104 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. The Institute of Chartered Accountants of India 105 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. The Institute of Chartered Accountants of India 106 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. The Institute of Chartered Accountants of India 107 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 The Institute of Chartered Accountants of India 108 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. The Institute of Chartered Accountants of India 109 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. The Institute of Chartered Accountants of India 110 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 The Institute of Chartered Accountants of India 111 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% The Institute of Chartered Accountants of India 112 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. The Institute of Chartered Accountants of India 113 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% The Institute of Chartered Accountants of India 114 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. The Institute of Chartered Accountants of India 115 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. The Institute of Chartered Accountants of India 116 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 The Institute of Chartered Accountants of India 117 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. The Institute of Chartered Accountants of India 118 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. The Institute of Chartered Accountants of India 119 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, The Institute of Chartered Accountants of India 120 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. The Institute of Chartered Accountants of India 121 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 The Institute of Chartered Accountants of India 122 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. The Institute of Chartered Accountants of India 123 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:- The Institute of Chartered Accountants of India 124 (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. The Institute of Chartered Accountants of India 125 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 The Institute of Chartered Accountants of India 126 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. The Institute of Chartered Accountants of India 127 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. The Institute of Chartered Accountants of India 128 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. The Institute of Chartered Accountants of India 129 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.). The Institute of Chartered Accountants of India 130 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 The Institute of Chartered Accountants of India 131 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.
The Institute of Chartered Accountants of India 132 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. The Institute of Chartered Accountants of India 133 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.
The Institute of Chartered Accountants of India 134 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. The Institute of Chartered Accountants of India 135 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. The Institute of Chartered Accountants of India 136 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. The Institute of Chartered Accountants of India 137 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. The Institute of Chartered Accountants of India 138 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? The Institute of Chartered Accountants of India 139 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. The Institute of Chartered Accountants of India 140 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. The Institute of Chartered Accountants of India 141 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. The Institute of Chartered Accountants of India 142 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. The Institute of Chartered Accountants of India 143 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 The Institute of Chartered Accountants of India 144 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. The Institute of Chartered Accountants of India 145 (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, The Institute of Chartered Accountants of India 146 (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. The Institute of Chartered Accountants of India 148
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. The Institute of Chartered Accountants of India 149
(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. The Institute of Chartered Accountants of India 151
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. The Institute of Chartered Accountants of India 152
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. The Institute of Chartered Accountants of India 154
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. The Institute of Chartered Accountants of India 156
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. The Institute of Chartered Accountants of India 157
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. The Institute of Chartered Accountants of India 158
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. The Institute of Chartered Accountants of India 159
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. The Institute of Chartered Accountants of India 160
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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161 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. The Institute of Chartered Accountants of India 162 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. The Institute of Chartered Accountants of India 163 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.
The Institute of Chartered Accountants of India 164 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. The Institute of Chartered Accountants of India 165 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 The Institute of Chartered Accountants of India 166 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. The Institute of Chartered Accountants of India 167 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. The Institute of Chartered Accountants of India 169 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 The Institute of Chartered Accountants of India 170 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. The Institute of Chartered Accountants of India 171 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 The Institute of Chartered Accountants of India 172 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 The Institute of Chartered Accountants of India 173 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 The Institute of Chartered Accountants of India 174 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.
The Institute of Chartered Accountants of India 175 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. The Institute of Chartered Accountants of India 176 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 The Institute of Chartered Accountants of India 177 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 The Institute of Chartered Accountants of India 178 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. The Institute of Chartered Accountants of India 179 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, The Institute of Chartered Accountants of India 180 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 The Institute of Chartered Accountants of India 181 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. The Institute of Chartered Accountants of India 182 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. The Institute of Chartered Accountants of India 183 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.