"02 December 2010" Archive

If documents asked for are relevant and may help delinquent to prepare his/her defence they have to be furnished

Smitaben N. Shah Vs. SEBI (Securities Appealate Tribunal Mumbai) (ITAT Mumbai)

Where the details in the charts relied upon in the show-cause notice have been culled out from the trade and order logs and, in the circumstances of the case, it was not only relevant but even necessary that the appellant be furnished with those trade and order logs so that she could possibly make out a case based on other orders punched ...

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Foreign travel tax- If any person fails to pay FTT within statutory period of fifteen days, then such person is well within sweep of words "failure to pay" u/s 38(3) of Finance Act, 1979

Malaysian Airlines Vs. UOI (Bombay High Court)

Had there been no minimum penalty prescribed under sub-section (3) of section 38, it would have been open for the adjudicating authority to consider the conduct of the defaulter and the extent of delay taking into account the extenuating circumstances while imposing penalty. But once the statute prescribes the minimum penalty without givi...

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An income, so as to be characterized as `derived from’ an undertaking u/s 80-IA, should directly result from its operations

ITO Vs. E. A. Infrastructure Operations Pvt. Ltd. (ITAT Mumbai)

In order to be covered within the expression derived from it is sine qua non that the relation between the income and source must be that of the first degree Where the relation between income and source slips from first to second degree, income stands excluded from the scope of expression derived from and may fall within the purview of at...

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Denial of Cenvat on GTA service just because duty on goods been paid on assessable value determined u/s. 4A of Excise Act

LG Electronics (India) Pvt. Ltd. Vs. CCE (CESTAT Delhi)

For allowing credit of tax paid on input goods/service used in or in relation to manufacture of a finished product, what is relevant is as to whether the items in respect of which input duty credit is being claimed are covered by the definition of "input" or "input service" and finished product is chargeable to duty for allowing the credi...

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Section 147 of Income-tax Act – Unless twin conditions of proviso to section 147 are satisfied, notice issued under section 148 is without jurisdiction and on that ground alone notice is liable to be quashed

Sri Sakthi Textiles Ltd. Vs. JCIT (Madras High Court)

In order to fall within the proviso to section 147, apart from stating that there are reasons for the authority to believe that there has been escapement of chargeable income, it should also record that such escapement is due to the failure of the assessee to disclose fully and truly all material particulars necessary for his assessment f...

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Section 35D of Income-tax Act – Premium collected by assessee on issue of its share capital has to be excluded for purpose of determining amount of capital employed in business of company while computing deduction under section 35D(3)

DCIT Vs. Axis & T. Ltd. (ITAT Delhi)

The disallowance of claim under section 35D made by the AO by excluding the share premium from the capital employed in the business of the company is justified....

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Fee for conducting feasibility study for oil extraction project should be taxed u/s. 44BB

ONGC as representative assessee of Alberta Research Council, Canada Vs. JCIT (ITAT Delhi)

Section 44BB(1) does not talk of `extraction of mineral oil' simplicitor; it prefixes phrase `in connection with' to the expression `extraction of mineral oil', which shows that the section, by virtue of the phrase `in connection with', is talking of something other than physical operations below the surface of the earth...

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Section 37(1) of Income-tax Act – Expenditure incurred for imparting technical know-how to assessee’s personnel has to be deducted under section 37(1) and it does not fall under section 35AB

CIT Vs. Molex (India) Ltd. (Karnataka High Court)

The Tribunal was correct in holding that consideration paid by the assessee to certain American Company for providing technicians to train assessee's personnel in manufacturing, testing, inspection and quality control of its products and to impart know-how and technical data and suggest improvements thereto, did not fall under section 35A...

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While forming opinion that a prima-facie case exists, the Commission has to indicate reasons which need not be elaborate but should be sufficient to show application of mind

Steel Authority of India Ltd. Vs. Jindal Steel & Power Ltd. (CESTAT Delhi)

Coming to the merits of the case, the first question that needs to be decided is whether the appellant had a reasonable opportunity to present its case. It is rightly contended by learned counsel for the respondent that there is no requirement of the Commission to invite parties to present their point of view before forming a prima-facie ...

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Appellate Court bound to accept statement of judges recorded in their judgment

Nischintapur Tea Co. Ltd. Vs. Subrata Sen. & Ors. (Calcutta High Court)

The party if it feels that such recording of statement of fact is wrongly recorded it is incumbent on its part to approach the said judge promptly and without any delay or before the same feeds the memory and to invite the attention of the said judge that there is an error....

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