Various benches of the high court have taken different stands on the issue of relationship between the employer and such workers. SC framed three questions for the larger bench. The first and main one is “whether a person who is employed by a contractor who undertakes contracts for the execution of any of the whole of the work or any part of the work which is ordinarily work of the undertaking is an employee under the Act?”
the ld. Magistrate viewed that imposition of a fine payable as compensation to the Appellant was sufficient to meet the ends of justice in the instant case. The High Court confirmed the order of the ld. Magistrate, with an increased fine — the Supreme Court held no interference with the order of the High Court, except to the extent of increasing the amount of compensation payable by a further sum of Rs.2 lakhs — appeal partly allowed.
The SC last week dismissed the appeal of Hyderabad Engineering Industries against the judgment of the Andhra Pradesh high court ruling that the transactions between several cities constituted inter-state sales, as contemplated under Section 3(a) of the Central Sales Tax Act. The company was part of Jay Engineering Works with head office in Delhi. It has other related companies with different names in different states.
The SC last week dismissed the appeal of Hans Steel Rolling Mill against the ruling of the excise appellate tribunal and stated that “importing of elements of one scheme of tax administration to a different scheme of tax administration would be wholly inappropriate as it would disturb the smooth functioning of that unique scheme. The time limit prescribed for one scheme could be completely unwarranted for another scheme and time limit prescribed under Section 11A of the Central Excise Act is no exception.”
I note that in the case of Commissioner of Central Excise, Nagpur Vs Ultra Cement Ltd. = ( 2010-TIOL-745-HC-MUM-ST ) , the Nagpur Bench of Hon’ble Bombay High Court has held that credit of service tax would be allowed except where the cost of food has been recovered from the employee/worker. Although, ld. counsel submits that a token amount of Re.1/- has been collected from the employees/workers of the assessee’s company, since show cause notice does not advert to this factual position nor do the orders of the authorities below consider this aspect, the impugned order is set aside and the case remitted to the adjudicating authority for fresh decision in the light of the Hon’ble High Court judgment cited supra.
In the present case, we are of the opinion that even if the websites had materialized, the expenditure could not have been viewed as capital expenditure because the website is put up for the purposes of day-to-day running of the business and even if one were to view that some enduring benefit is obtained by the assessee, the benefit cannot be said to accrue to the assessee in the capital field. A website is something where full information about the assessee’s business is given and it helps the assessee’s customers in dealing with it. A website constantly needs updating, otherwise it may become obsolete. It helps in the smooth and efficient running of the day-to-day business. The expenditure would have been allowable as revenue expenditure; as a corollary, when the website did not materialize, the amounts advanced to the companies who were engaged to develop the websites, when they became irrecoverable, can be written off and claimed as loss incidental to the business. The loss is thus allowable as business loss in terms of section 28 of the Act. We accordingly uphold the assessee’s alternative plea.
The tax effect involved in the present appeal is Rs. 4,65,860/-. As per the recent guidelines of the CBDT, appeal in those cases where the tax effect is less than Rs. 10 lacs, are not to be entertained. In this case court has taken the view that such circular would also apply to pending cases. A contrary view has been taken in CIT vs. M/s Varindera Construction Co (P&H High Court – Full Bench)
M/s Jai Ganesh Processors Vs. CCE, C, Chandigarh (High Court of Punjab and Haryana at Chandigarh) – Even though the Hon’ble Supreme Court held that the assessee would not get benefit of exemption if duty had not been paid on inputs, the assessee held a bonafide view about interpretation of the notification. Thus, it may not be a case of deliberate evasion of duty. While the Tribunal rightly rejected the claim of the assessee that exemption was applicable, the setting aside of penalty cannot be held to be illegal. Levy of penalty is not automatic merely because an exemption was wrongly availed, even when plea of the assessee is found to be erroneous.
Circular dated 15.5.2008 laying down monetary limit controls the filing of the appeals and not their hearing. Appeals filed as per applicable limit at the time of filing cannot be governed by circular applicable at the time of hearing. The object of the Circular u/s 268A is only to govern monetary limit for filing of the appeals. There is no scope for reading the circular as being applicable to pending appeals.
CIT vs. M/s India Sea Foods (Kerala High Court) If an assessment happens to be an under-assessment or a mistaken order, the course open to the AO is either to rectify the mistake u/s 154 or to make a reassessment u/s 147. While, it is correct, as held in EID Parry 216 ITR 489 (Mad), that the AO has to choose between the two and cannot initiate both proceedings at the same time, the principle of constructive res judicata made applicable by the Madras High Court that the AO having initiated rectification proceedings u/s 154 should stick to the same only and cannot drop that and proceed u/s 147 is not acceptable. The fact that the AO invoked s. 154 and dropped it does not affect the validity of re-assessment u/s 147.
