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Think Differently Act Perfectly

February2010

PROGRAMMES - A BIRD'S - EYE VIEW - February 2010

Date/Day Topic /Speaker Venue/Time CPE Credit

Editor : CA. Cotha S. Srinivas

Sub Editors : CA. S.N. Ravindranath

CA. T.R. Venkatesh Babu

The Branch does not accept any responsibility for the views expressed in Articles / Contributions / Advertisements published in this News Letter.

Note :High Tea for Programmes at Branch Premises at 5.30 pm.

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Inside Black & WhiteFull page Rs. 10,000/-Half page Rs. 6,000/-Quarter page Rs. 3,000/-

2 Hrs.02.02.10 Registration of Charges, Annual Returns, Branch PremisesTuesday Meetings & Proceedings 06.00pm to 08.00pm

Ms. Janet Jagdish, Company Secretary in Practice

03.02.10 to International Study Tour to Hongkong & Macau07.02.10

04.02.10 Foreign Companies and winding-up of Companies Branch PremisesThursday including Basics of Merger & Provisions relating to Merger 06.00pm to 08.00pm

Mr. G.V. Srinivasa Murthy,Company Secretary in Practice

06.02.10 Convergence with IFRS - Tele Conference Branch PremisesSaturday CA. Narendra P Sarada 11.00am to 01.00pm

09.02.10 Compliances under Co. Law - CA’s Perspective Branch PremisesTuesday Mr. J. Sundharesan, Company Secretary in Practice 06.00pm to 08.00pm

11.02.10 Customs Valuation & Transfer Pricing Sri Bhagawan Mahaveer JainThursday Mr. Lakshmi Kumaran, Advocate, College Auditorium

M/s. Lakshmikumaran & Sridharan, Delhi Next to Bangalore Stock ExchangeDelegate Fee: Rs.200/- 5.00pm to 8.00pm

13.02.10 Session1: Introduction, Challenges & Branch PremisesSaturday Latest Developments in IFRS 09.00am to 01.00pm

CA. P.R. Jaya Kumar, BangaloreSession2: Presentation of AccountsCA. Parveen Kumar, New DelhiSession3: Case Study - Borrowing CostCA. BopannaDelegate Fee: Rs.250/-

16.02.10 Compliance aspect - Registrar of Branch PremisesTuesday Companies Perception 06.00pm to 08.00pm

Registrar of Companies, Karnataka

18.02.10 Major Rules & Regulations under the Companies Act Branch PremisesThursday CA.R.Ramarao, Bangalore 06.00pm to 08.00pm

23.02.10 Income escaping Assessment - Sec. 147 Branch PremisesTuesday CA. Prashanth G. S., Bangalore 06.00pm to 08.00pm

25.02.10 Mutual Funds - Tool for wealth creation Sri Bhagawan Mahaveer JainThursday CA. Prateek Chandok College Auditorium

Delegate Fee: Rs.200/- Next to Bangalore Stock Exchange5.00pm to 8.00pm

27.02.10 Analysis of Union Budget- 2010 Jnana Jyothi Convention CenterSaturday In Association with FKCCI 04.00pm to 08.00pm

Sri Shanthi Bhushan, Former Union Law Minister;CA.T.V. Mohandas Pai,CA.Padamchand Khincha & Team

13.03.10 Clause by Clause Discussion on Finance Bill 2010 J.N. Tata AuditoriumSaturday Further details will follow 10.00am to 05.00pm

20.03.10 Bank Audit Seminar Hotel Le-MeridianSaturday Further details will follow 10.00am to 05.00pm

He who rejects change is the architect of decay. The only human institution which rejects progress is the cemetery. ~Harold Wilson

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Bangalore Branch of SIRCof the Institute of Chartered Accountants of India

February2010

TAX UPDATES December 2009Chythanya K.K., B.com, FCA, LL.B., Advocate

VAT, CST, ENTRY TAX, PROFESSIONAL TAXPARTS DIGESTED:

a) 2009-10 (14) KCTJ – Vol-14 No.9b) 26 VST – Part 1, 2 & 4

If you don’t like something change it; if you can’t change it, change the way you think about it. ~Mary Engelbreit

INCOME TAX

Reference/Description

[2009] 319 ITR 151 (Delhi) HC CIT v. Vishnu and Co. P. Ltd. With reference to the notice issued under section 143(2) of the ITAct, seeking particular information, notice served after office hours on the last date (time period within which notice was to beserved) and where no authorized person was present at the premises to receive the said notice, the Hon. High Court held thataffixing the notice on the front gate of the premises was not a valid service of the said notice. The assessment was held to be invalidand the fact that the assessee had appeared in proceedings was of no consequence as to the department’s defence.

[2009] 319 ITR 160 (Uttarakhand) HC CIT v. 1. Queens’ Educational Society 2. St. Pauls Sr. Secondary School In the instantcase the educational institutions were registered under the Societies Registration Act and were imparting education to children.The society expended on acquisition of fixed assets like furniture and buildings. The High Court held that since the said acquisitionswere made out of the income from imparting education with a view to expand the institution to earn more income, the same wasnot entitled to exemption under section 10(23C)(iiiad) of the Act.With due respect, the aforesaid decision requires a review as itseems to bar further investment in infrastructure in furtherance of educational activities. Further, being under sec 10(23)((iiiad),the assessee could not have spent income on any other activity than education.

[2009] 319 ITR 179 (Delhi) HC CIT v. Standing Conference of Public Enterprises (Scope) In the case of the instant society, thepre-dominant object was to render appropriate assistance and help to its members for improving their performance and role. Inpursuance of the same, the society was generating rental income from certain non-members as well which was anyway charged totax. The revenue sought to tax even rental income from members on the premise that the mutuality is lost because of dealing withnon members. The Hon. High Court held that simply because some incidental activity of the assessee was revenue generating, thesame did not provide any justification to hold that the society was tainted with “commerciality” and that the relationship ofmutuality ended.

[2009] 319 ITR 204 (P&H) HC CIT v. Winsome Textile Industries Ltd. In the instant case, the assessee made investment in sharesusing its own funds and hence did not incur any expenditure in the nature of interest. However, the assessing officer disallowed theinterest on the amount of investment in the shares on the ground that the dividend income was exempt from tax by applyingsection 14A of the Act. The Hon. High Court held that when there was no claim made for exemption section 14A could not haveany application.

[2009] 319 ITR 208 (SC) MEPCO Industries Ltd. v. CIT and another In respect of power subsidy received by the assessee, the

PARTS DIGESTED:a) 319 ITR – Part 2 to 5b) 185 Taxman – Part 1 to 5

Reference/Description

[2009] 26 VST 81 (Karn) HC Cauvery Theatre and others v. Union of India and others The Hon. High Court observed that,applying different rates of tax, in terms of the proviso to section 4 of the Karnataka Entertainments Tax Act, 1958, as betweenfilms in Kannada, Kodava, Konkani, Tulu or Banjara languages on the one hand and the movies produced in languages other thanthose languages on other, is unconstitutional. The Supreme Court’s ruling in the case of Aashirwad Films v. Union of India [2007]7 VST 714 (SC); [2007] 6 SCC 624 was applied.

[2009] 26 VST 213 (Ker) HC Microtrol Sterilization Services Pvt. Ltd. v. State of Kerala With reference to works contractunder the sales tax Act, the Hon. High Court held that sales tax was payable only on the value of the goods that gets transferredfrom the contractor in the execution of the works contract. In the instant case, ethylene oxide was used as a consumable no tracesof which were present in the sterilized good. The Court observed that consumables are items which are lost in the course ofexecution of the works contract; they are used up in the process. Since the property in ethylene oxide did not pass to the customer,tax was not leviable on the value of ethylene oxide used.

c) 121 ITD – Part 6 to 8d) 126 TTJ – Part 2 to 7

e) 28 CAPJ – Part 5 & 6f) 41-B BCAJ – Part 3

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February2010

If you’re in a bad situation, don’t worry it’ll change. If you’re in a good situation, don’t worry it’ll change. ~John A. Simone, Sr.

same was originally treated as capital receipt not taxable under the Act. However, post the judgement of the Supreme Court in thecase of Sahney Steel and Press Works Ltd. [1997] 228 ITR 253, the CIT took the view that the subsidy in question was a revenuereceipt. The Apex Court observed that in the instant case section 154 was not invokable by the Department, as the rectificationarose only due to a change of opinion. The Court felt that there is no strait jacket principle of distinguishing a capital receipt froma revenue receipt and the same depended upon the circumstances of each case. The Court felt that a rectifiable mistake was amistake which was obvious and not something which had to be established by a long drawn process of reasoning or where twoopinions were possible. A decision on a debatable point of law could not be treated as a mistake apparent from the record so as toinvoke the provisions of section 154.The aforesaid decision brings out another interesting aspect, albeit by implication, that asubsequent judgment on a debatable point, although having retro effect, cannot make the issue non debatable at the time theassessing authority decided on such issue in the original order. This decision thus bars not only rectification but also revision undersec 263 in as much as one may argue that the assessing authority took one of the possible views passing assessment order so thatthe same cannot be regarded as erroneous.

[2009] 319 ITR 306 (SC) CIT v. ALOM Extrusions Ltd. The Apex Court observed that in cases where provisions have beenamended to remove unintended consequences, such amendment needs to be read retrospectively and a strict construction is notpreferred where the same leads to unintended consequences. The matter discussed was with reference to the omission of thesecond proviso under section 43B (as regards the time limit within which the contributions to the provident fund needs to be madeso as to claim deduction on the expenditure). Since the existing provision, as to the date, created difficulties, the same wasamended so as to remove the said difficulty. Therefore the amendment has to be interpreted as retrospective as from April 1, 1988and not as if with effect from April 1, 2004 (though stated as such in the Finance Act, 2003).The aforesaid decision approvedKarnataka High Court decision in the case of Sabari Enterprises 298 ITR 141 (Karn) HC which incidentally was on both employee’sas well as employer’s contribution to PF. Hence, one may now state that sec 43B would apply to both contributions.

[2009] 319 ITR 317 (SC) Assam State Text Book Production and Publication Corporation Ltd. v. CIT The Honourable SupremeCourt, with reference to section 10(22) of the IT Act, held that, in pursuance of the letter of the Central Government dated 9-7-1973, all State-controlled Educational Committee(s)/Board(s) have been constituted to implement the Educational policy of theState(s); consequently, they should be treated as Educational Institutional within the meaning of section 10(22).Further the ApexCourt observed as follows:”We are of the view, that, in this case, the High Court, in its impugned judgment, has not considered thehistorical background in which the Corporation came to be constituted; secondly, the High Court ought to have considered thesource of funding, the shareholding pattern and aspects, such as return on investment; thirdly, it has not considered the lettersissued by the CBDT which are referred to in the judgment of the Rajasthan High Court granting benefit of exemption to variousBoard/Societies in the country under section 10 (22) of the Act; fourthly, it has failed to consider the judgments mentionedhereinabove; and, lastly, it has failed to consider the letter of the Central Government dated July 9, 1973, to the effect that allState-controlled Educational Committee (s)/Board (s) have been constituted to implement the educational policy of the State (s);consequently, they should be treated as educational institution.”With due respect, even though the aforesaid decision isfavourable, it has overlooked the fact that the bye law permitted distribution of dividend which certainly made theassessee not existing solely for education.

[2009] 319 ITR (AT) 253 (Mumbai) Beck India Ltd. v. DCIT In the instant case the scheme of amalgamation was approved by theHigh Court subsequent to the date of filing of the return, however with retrospective effect. With reference to section 115JB, theHon. Tribunal held that the assessee was eligible for set off loss and depreciation (whichever is lower) of the amalgamatingcompany while computing the book profits of the assessee company.

[2009] 185 Taxman 20 (Kar.) S. Thigarajan v. ACIT, Circle 14 (1), Bangalore The assessee was an employee of Infosys whichwas forced to deduct tax on perquisite by way of ESOP. However, eventually, the Supreme Court held that the ESOP was not a perk.The department granted refund to the assessee but without interest on the basis that the assessee waived interest and that thecondonation of delay in filing a revised return for claiming refund was subject to Board Circular which barred interest. The Hon.High Court ruled that as assessee was eligible for refund without making any claim under section 240, there is no question ofeither him waiving interest or intervention by Board in terms of condonation and consequent barring of interest. It was held thatthe assessee was not only eligible for interest under section 244A, but also interest on interest.

[2009] 185 Taxman 51 (Mad.) India Comnet International v. ITO With reference to the assessment year 2002-03, where therewas interest income earned by assessee-company, being a 100 per cent export-oriented unit, on amount of export proceeds kept inforeign currency deposit account as permitted by FERA under Banking Regulations, the Hon. High Court held that the same would notqualify for exemption under section 10A.The Court observed that there was no direct nexus between the interest earned and theindustrial undertaking. The interest received by the assessee was on deposit made by it in the bank. It was that deposit which was thesource of income. Therefore, the assessee was not entitled to relief under section 10A.With due respect, the Hon. High Courtoverlooked the difference between ‘profits derived by the undertaking’ and the ‘profits of the business derived by the undertaking’.The use of word ‘business’ in the latter phrase which has been used in sec 10A certainly widens the scope of profits.

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February2010

Life is its own journey, presupposes its own change and movement,and one tries to arrest them at one’s eternal peril. ~Laurens van der Post

[2009] 185 Taxman 70 (Raj.) CIT v. Hycron India Ltd. With reference to the assessment years 1993-94 and 1994-95 and theprovisions of section 10B as it then existed, the Hon. High Court stated that the language of section 10B provided for exemptionwith respect to any ‘profits and gains’ derived by assessee and the same was not confined to ‘profits and gains of business andprofession’ as provided under section 14(D). Further the assessee-company purchased goods from its sister concern and paid anadvance amount to it, the said advance yielded interest income to assessee and the same was claimed as exempt under section10B. The Court held that the interest income received by assessee from its sister concern would fall within expression ‘profits andgains’ and assessee would be entitled to exemption under section 10B. The above decision is diametrically opposite to thecase India Comnet International v. ITO (supra)

[2009] 185 Taxman (BN – i) Part 2. Tube Investments of India Ltd. v. ACIT (Mad.) In the instant case it was held that section40(a)(ia) could not be read in isolation but it must be read along with its proviso and when it was so read, there would be no scopeto hold that there would be any harsh treatment meted out to any assessee in the matter of disallowance of any expenditure validlymade by them.The constitutional validity of sec 40a(ia) has been upheld in the above case

[2009] 185 Taxman (BN – ii) Part 3 CIT v. Brindavan Bevereges Ltd. (Kar.) In the instant case it was observed that section115JA(4) makes a difference in comparison to the provisions of section 115J. Except to the extent of the artificial calculation oftotal income as provided in sub-sections (1) and (2) of section 115JA, all other provisions of the Act including section 234B or 234Capplies to every assessee envisaged within the scheme of section 115JA.The above decision effectively renders the decision of SCin CIT v. KWALITY BISCUITS LTD (2006) 284 ITR 434 (SC) inapplicable in the context of section 115JA as well as section 115JB.

[2009] 185 Taxman 313 (Kar.) CIT, (International Taxation) v. Samsung Electronics Co. Ltd. With respect to the liability todeduct tax at source under section 195, it was observed by the High Court that the obligation under section 195 arose only in thecase where the payment partook the character of an income. It was emphasised that section 195 was not a provision for assessingthe tax liability of a non-resident. The Court declared that the Apex Court’s ruling in Transmission Corpn. of A.P. Ltd. V. CIT [1999]239 ITR 587 was a binding precedent on the particular proposition and that there was no choice as to acceptance of the saiddecision, the same was binding on all courts in the country, to the extent of understanding, interpreting and explaining theprovisions of section 195 and the modalities around the same.The aforesaid decision has also stated the following; 1. Scope ofsection 195(2) is limited on simple and straight forward issues and it does not extend to determining chargeability 2. In the absenceof application under sec 195(2), the payer has to deduct tax 3. Unless payer had made application under sec 195(2), against theadverse order under sec 201, there is no appeal 4. Even if payer had made application under sec 195(2), against the adverse orderunder sec 201, the scope of appeal is limited and co-terminus with that of power of assessing officer under sec 195(2) as understoodby the HC.Although, there are some inconsistencies in the above decision, it is possible (although arguably) to read thesame in line with Transmission Corporation and understand that only when a portion of the sum is chargeable andother portion not chargeable (a mixed case), there is a need to make the application and not otherwise. This is also sobecause the HC could not have held contrary to the apex court decision.

[2009] 185 Taxman 374 (Delhi United Exports v. CITWith respect to expenses and payments not deductible under certaincircumstances as per the provisions of section 40A, the Hon. High Court held that the provisions of section 40A(2) do not apply totrade discount inasmuch as trade discount is not an expenditure which is incurred or with respect to which a payment is made.

[2009] 121 ITD 498 (Kol.) (SB) Shree Capital Services Ltd. v. ACIT, Circle – 5, KolkataIn the instant case, with reference tosection 43(5), dealing with the definition of the term “speculative transaction”, the insertion of proviso (d) to the said section(transactions referred to in section 2(ac) of the SCRA – not to be regarded as speculative transaction) vide Finance Act, 2005 w.e.f.1-4-2006 was held to be prospective in nature. Further, it was observed that, ‘derivative’ (where the underlying asset is shares)would fall within the meaning of commodity under the said section, and therefore the revenue was right in disallowing the loss onaccount of futures and options vide provisions of section 43(5) in the instant case.

[2009] 121 ITD (BN – iii) Part 8 Maharashtra State Road Development Corpn. Ltd. v. ACIT (Mum.-ITAT) The Mumbai Tribunalin the instant case held that roads, flyovers, bridges etc., constructed and owned by an infrastructure company and utilized in itsbusiness of providing infrastructure is the tool of its trade and an essential adjunct to its business and not merely a setting in which thebusiness is carried on and therefore, would constitute plant and will be entitled to depreciation at the rate of 25 per cent.

[2009] 126 TTJ (Del) 184 DCIT v. Vertex Customer Services (India) (P) Ltd. With reference to penalty leviable under section271(1)(c), and in the circumstances of the case where the assessee had taken the services of reputed consultants and the methodapplied for determining ALP had not been discarded, the adjustment regarding provision for doubtful debts had only been questionedby revenue. The Tribunal noted that where the sums owed by the parent company had become bad the same could not beconclusively said to be a matter falling in ordinary course of trade. Whether the provisions for doubtful debt on the facts of thecase, could be said to be an extraordinary item warranting exclusion from operational cost was a debatable point. In the saidcircumstances coupled with the fact that there was full disclosure by the assessee of all the relevant facts, the Tribunal held that theassessee’s computation could not be said to have been done, not in good faith and not with due diligence and therefore the levyof penalty under s. 271(1)(c) was not warranted.

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February2010The man who never alters his opinion is like standing water, and breeds reptiles of the mind. ~William Blake

[2009] 126 TTJ (Mumbai) 416 DCW Ltd. v. DCITIn the instant case the assessee had initially included customs duty of Rs. 23.98lakhs in the cost of plant and machinery and claimed depreciation and other allowances thereon. In such a scenario it was held bythe Tribunal that the assessee had claimed various reliefs indirectly while computing its business profits of various years andtherefore, refund of customs duty was chargeable to tax under s. 41(1). The aforesaid decision requires a review as it overlooksthe plain provision of section 32 and section 41 and assumes that allowance of depreciation is allowance the expenditure.Depreciation is only an allowance but not an expenditure. Further, depreciation allowed under block concept is governedby block movements and not necessarily marching with the actual cost of the asset.

[2009] 126 TTJ (Mumbai) 495 ITO v. Modi MotorsIn the instant case, the recognition of a partnership firm as distinct from thatof the partners for the limited purpose of assessment was emphasised. With reference to the premium paid on the keymaninsurance policy by a partnership firm and the allowability of deduction in respect of the same in the case of a partnership firm theTribunal observed, that, though a partnership firm is not a separate entity as per general law, for a specific purpose it may betreated as independent of its partners under the provisions of IT Act, 1961. The Tribunal observed that by incorporating ss. 45(3)and 45(4), the legislature had declared its intention in clear terms that the partners and firm are independent entities not only forthe purposes of assessment but also for the purpose of determining the charge of tax on the transactions between them. Further,w.e.f. asst. yr. 1993-94 partnership firms have been given a corporate personality in a limited sense by making necessary amendmentsin the provisions of ss. 10(2A), 28(v) and 40(b) which conclusively proved that a partnership firm is independent from its partnersas far as provisions of IT Act was concerned. The amount received on maturity or surrender of Keyman insurance policy is taxableunder the head ‘Salaries’ under s. 17(3)(ii) or ‘Profits and gains of business or profession’ under s. 28(vi) or as ‘Income from othersources’ under s. 56(2)(iv). If the legislature had intended that such premium was allowable as deduction only in cases whereemployer–employee relationship exists, then the amount received on maturity/surrender would have been made taxable onlyunder the ‘Salaries’. Further, the wordings of Explanation to s. 10(10D) also make it clear that the legislature had envisaged variouskinds of relationships between the person paying the premium and the person on whose life such policy was taken. This was alsoclear from para 14.4 of Circular No. 762, dt. 18th Feb., 1998. The very fact that the assessee firm comprised of four partners and ithad taken Keyman insurance policies only in respect of two working partners further justified the assessee’s claim for deduction.Therefore, premium paid by the assessee firm on the Keyman insurance policies was allowable as deduction.

[2009] 126 TTJ (Delhi) 516 ACIT v. Cargill Global Trading (I) (P) Ltd. In the instant case it was clarified that bill discounting wasnot a case of debt incurred or money borrowed and therefore the charges on account of the same was not liable to TDS provision.The Tribunal observed that as per s. 2(28A), “Interest” meant interest payable in any manner in respect of any moneys borrowedor debt incurred and included any service fee or other charge in respect of moneys borrowed or debt incurred or in respect of anycredit facility which has not been utilized. Further it was observed that bill discounting was also not a case where any service fee orother charge had been paid in respect of moneys borrowed or debt incurred or any credit facility which has not been utilized.Further, CBDT vide Circular No. 65, dt. 2nd Sept., 1971 had clarified that in such cases of immediate discounting the paymentreceived by the suppliers was in the nature of price paid for the bills and could not technically be held as including any interest and,therefore, no tax need be deducted at source.Moreover, in the instant case, since the buyer did not have any PE in India, it was notliable to tax in respect of such discount earned by it. Hence, it was held that the assessee was not under any obligation to deducttax at source under s. 195 and the discount charges incurred by it could not have been disallowed by invoking s. 40(a)(i).

[2009] 126 TTJ (Ahd) (TM) 721 Dharamshibhai B. Shah v. ITO In the instant case the assessee converted his proprietary concern intopartnership firm w.e.f. 1st April, 1994. Land, factory, building, plant and machinery were all revalued as on 31st March, 1995, and thecapital accounts of the partners were credited straightaway by the revalued figure. Prior to the same no entry had been passed. TheTribunal observed that as per s. 45(3), for the purpose of s. 48 the amount recorded in the books of the firm is deemed to be the full valueof consideration received or accrued. It did not restrict the value of consideration to the amount credited to the capital account of thepartner who contributed the assets to the firm. Also, it was observed that s. 45(3) did not state that the amount recorded in the booksof account of the firm on the date or at the time when the person brought in the capital assets would be deemed to be the full value ofthe consideration. If the value of capital assets had been recorded during the previous year, the same had to be treated to be the full valueof the consideration received or accrued. In the instant case, the firm had recorded the capital asset at the revalued figure on 31st March,1995, i.e., during the previous year in which the transfer took place. Hence, the said value had to be taken to be the full value ofconsideration. Therefore, the value of the consideration could not be restricted to the amount credited to the capital account of theassessee.The aforesaid decision brings a new interpretation to sec 45(3) and rules that amount credited in any account in the books ofthe firm should be considered and not just what was credited to the account of contributing partner.

[2009] 41-B BCAJ 39 CIT v. M/s. Hero Cycles Ltd. (P&H HC)The Hon. High Court held that in the absence of a nexus betweenexempt income and the expenditure in question, the provisions of section 14A cannot be applied. The Court observed that thecontention of the Revenue that directly or indirectly some expenditure is always incurred which must be disallowed u/s. 14A and theimpact of the expenditure so incurred could not be allowed to be set off against the business income which may nullify the mandateof section 14A was not acceptable. The disallowance under section 14A requires a finding of incurring of expenditure. Where it wasfound that for earning the exempt income, no expenditure had been incurred, disallowance under section 14A was not possible.

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February2010

Recent judicial pronouncements in Indirect Taxes

N.R. Badrinath, Grad C.W.A., F.C.A., Madhur Harlalka, B. Com., F.C.A.

SERVICE TAXGoods Transport Agency Service� Services are received from goods transport owners and goods

transport operators and not from goods transport agency.Impugned order of the Revenue does not indicate whetherService tax is short paid or not and accordingly, plea of theappellant is not effectively countered. Claim made by theappellant is supported by Budget Speech of the FinanceMinister wherein the legislative intentions of not to tax thetruck owners or truck operators was clearly spelt out. Also,the finding on receipt of service of transport of goods, from agoods transport agency, is absent. Impugned demand andpenalty imposed by the Revenue is not sustainable.[Lakshminarayana Mining Co. Vs. Commissioner of ServiceTax, Bangalore 2009 (16) S.T.R.. 691 (Tri. – Bangalore)]

� Services of transport of goods provided by truck owners ortruck operators are not covered. Transport of goods serviceprovided by agents alone is l iable to Service tax.[Lakshminarayana Mining Co. Vs. Commissioner of ServiceTax, Bangalore 2009 (16) S.T.R.. 691 (Tri. – Bangalore)]

� Goods Transport Agency statutorily defined as any personproviding service in relation to transport of goods by road andissuing consignment note, by whatever name called. However,the Budget speech of the Finance Minister revealed thatlegislative intentions are not to tax truck owners or truckoperators. Accordingly, services of transport provided by truckowners or truck operators are not covered as per legislativeintention. [Lakshminarayana Mining Co. Vs. Commissioner ofService Tax, Bangalore 2009 (16) S.T.R.. 691 (Tri. – Bangalore)]

Import of Services� Service tax under Technical Testing and Analysis services are

contended as not payable by the service receipt, whenservices are fully rendered outside India. Held that, therecipient of service is not liable to pay service tax whenservices are fully performed outside India. Relevant provisoto statutory provision is not applicable when services arefully performed outside India. Service tax levy is applicableonly on services rendered in India and where taxable eventtakes place in India. Hence, the question of shifting theliability of tax to the recipient under the reverse chargemechanism does not arise when the liability to pay tax isitself absent. Accordingly, the appeal was allowed. [IntasPharmaceuticals Limited Vs. Commissioner of Service Tax,Ahmedabad 2009 (16) S.T.R.. 748 (Tri. – Ahmd.)]

� Object and intent of proviso to Rule 3(ii) of Taxation ofServices (Provided from Outside India and Received in India)Rules, 2006 is to avoid litigation and valuation issues whenservice is partly performed in India and outside India. Whenit is partly performed in India, full value is to be taken.Similarly if it is fully performed in India, there would be nodispute about the liability since the same would be on thefull value of the service. When the service is fully providedoutside India, this proviso is clearly not at all applicable. The

Nowadays change is around every corner; in my day it was only around the expected ones. ~V.L. Allineare

levy of service tax is only on services which are rendered inIndia and where taxable event takes place in India. [IntasPharmaceuticals Limited Vs. Commissioner of Service Tax,Ahmedabad 2009 (16) S.T.R.. 748 (Tri. – Ahmd.)]

CENVAT� Cenvat credit of Service tax on air travel performed for the

purpose of Company business. The term in or in relation tomanufacture used for extension of benefit of Service taxpaid on input services is a very wide definition and coversall services used directly or indirectly in manufacture process.Further, the inclusive definition is very wide ranging and theair ticket service charges would be definitely admissible. Also,there is no finding that such charges were paid in respect ofair travels by the Company officers for personal purposesonly and not for the Company business. As the air travelwas performed for the purpose of Company business, thecredit is admissible – Rule 2(1) of Cenvat Credit Rules, 2004.[Commissioner of C. Ex., Ahmedabad Vs. Fine CareBiosystems 2009 (16) S.T.R.. 701 (Tri. – Ahmd.)]

� Expenditure incurred on insurance premium of generalinsurance towards the losses due to fire, machinerybreakdown, cash handling, group gratuity and groupaccident policy is eligible for Cenvat credit of service tax.[Commissioner of C. Ex. Raipur Vs. Beekay Engg. & CastingsLtd. 2009 (16) S.T.R.. 709 (Tri. – Del.)]

� Expenses on Mandap Keeper incurred for stockists meet heldfor promoting sale of its final product, has been claimed forCenvat credit of service tax by the appellant. It has beenobserved by the Revenue that these services cannot beconsidered as input service even if the assessee claims thisservice is used for promoting sale of its product. The courthas depended upon the judgement passed by the LargerBench of the Tribunal in the case of ABB Ltd. v. CCE – 2009(15) S.T.R. 23 (Tri. – LB), held that the activities relating tobusiness would fall within the definition of “input credit”.In the present case, the Mandap Keeper services are utilisedin relation to business activities. In view of that, the denialof credit on input-service of Mandap Keeper is not proper.[Jaypee Rewa Plant Vs. Commissioner of Central Excise,Bhopal 2009 (16) S.T.R.. 707 (Tri. – Delhi)]

� The appellant claimed Cenvat credit of service tax on servicessuch as colony security service, transport service for employeesand guest house maintenance service. Held that, the colonyis the property of the appellants and as part of the businessof the appellants Company, there is an obligation in terms ofthe Companies Act, 1948 to provide accommodation to theemployees and security for the colony becomes a responsibilityof the Company and as such the appellants are entitled forCenvat credit. The scope of the input service is very wide tocover many activities which were indirectly used in or inrelation to manufacture of final products. Hence, there is nojustification for denying the credit in respect of service taxpaid on transport service for the transportation of employees.

9


February2010The wheel of change moves on, and those who were down go up and those who were up go down. ~Jawaharlal Nehru

Guest House is used for businessmen during visit to theCompany in connection with the business. It is indeed relatedto business activity. The appellants are rightly entitled for credit.[Commissioner of C. Ex., Visakhapatnam Vs. Hindustan ZincLtd. 2009 (16) S.T.R.. 704 (Tri. – Bang.)]

� The appellants have voluntary reversed the wrongly takenCenvat credit in the books. Since, the appellants have notutilized the credit, the demand of interest is not sustainable.Further, since the appellants have reversed the wrongly takencredit voluntarily, imposition of penalty is also not warranted.[Shakumbhri Straw Products Limited Vs. Commissioner of C.Ex., Merrut 2010 (249) E.L.T. 461 (Tri-Delhi)]

Penalty� Penalty under Section 76 of Finance Act, 1994 was reduced

by the Commissioner (Appeals). Revenue’s grievance is thatthere is no option available under this section to reduce thepenalty once the said section stands invoked, penalty asprescribed there under has to be imposed. The Revenue hassubmitted in their memo of appeal that if the Commissioner(Appeals) was of the view that there was bona fide on thepart of the assessee, the resort to Section 80 could have beentaken and the entire penalty could have been set aside.However, the court found that the Commissioner (Appeals)has given justifiable reasons for reducing the penalty, whichreasons are not assailed or rebutted by the Revenue. In sucha scenario, the appellate authority should have invoked theprovisions of Section 80 and set aside the penalty in its totality.The appellants have filed the cross objections, the same haveto be treated as an appeal. However, the appellants have notagitated the quantum of penalty imposed by Commissioner(Appeals) in their cross objections and have not soughtinvocation of Section 80. As such the penalty cannot be furtherreduced by invoking Section 80. Quantum of penalty inimpugned order, sustainable – Sections 73, 76 and 80 ibid.[Commissioner of Central Excise, Rajkot Vs. Ashish Amand &Co. 2009 (16) S.T.R.. 738 (Tri. – Ahmd.)]

Exemption� The appellant, who is a provider of services under the

category of “Construction services in respect of commercialor industrial building, and Civil structures”, was denied theabatement of 67% in terms of Notification No. 1/2006-S.T.,dated 01-03-2006, on the ground that in respect of someof their contracts entered into with the buyer, they hadavailed the Cenvat credit on duty paid on the raw materialwhereas in terms of proviso to the Norification, theabatement was not available, if the Cenvat credit has beenavailed. Held that, the construction services provided to thecustomer ‘A’ can be extended the benefit of Notification ifthe conditions are satisfied, even if such conditions are notsatisfied, in respect of the services provided to another buyer‘B’. Accordingly, the stay petition was allowed. [SMPConstructions Pvt. Ltd. Vs. Commissioner of C. Ex., Vadodara-II 2009 (16) S.T.R.. 763 (Tri. – Ahmd.)]

CUSTOMSDe-bonding of duty free capital goods� The appellant had procured capital goods and exported services

to its foreign clients. They were compelled to wind up theoperations as their client failed to pay for the services renderedand accordingly filed for de-bonding of duty free capital goods

& indigenous goods. Provisions of the act during material periodallowed de-bonding of duty free capital goods on payment ofduty on depreciated value, at the rate in force on date of de-bonding. Held that the impugned orders of the revenue inwhich the assessment of value and recovery of duty is basedon value and rate prevalent on date of procurement of goods isincorrect. Depreciated value and rate of duty in force at the timeof filing of the ex-bond bill of entry should be applicable. Heldthat, appellant is entitled to refund on re-computation. The matterwas remanded for re-computation of duty liability. [BusinessProcess Technologies (I) Private Limited Vs. Commissioner ofCustoms, Bangalore 2010 (249) E.L.T. 248 (Tri. – Bangalore)]

CENTRAL EXCISEManufacture

Conversion of marble blocks by sawing into slabs and tilesand polishing amounts to ‘manufacture or production of articleor thing’ for deduction under Section 80-IA of Income TaxAct, 1961. However, present case is involving not only cuttingof marble blocks into slabs but also polishing them and ultimateconversion of blocks into polished slabs and tiles. There arevarious stages through which the blocks have to go throughbefore becoming polished slabs and tiles. The blocks convertedinto polished slabs and stones after undergoing relevantprocess, resulting in emergence of a new and distinctcommodity and the original block does not remain the samemarble block but becomes a slab or a tile. Hence, not onlymanufacture but an activity beyond manufacturing is involved,thereby brining a new product into existence. On facts of thecase, this activity is covered under manufacture or productionunder Section 80-IA. Department is contending that conversionof marble blocks into slabs and tiles and polishing them doesnot amount to manufacture. Accordingly, if the contention isaccepted, it will have serious revenue consequences. Therespondents are paying excise duty and some are job workersand activity undertaken recognized, as manufacture by variousgovernment authorities. To say such activity not amounts tomanufacture under Section 80-IA of Income Tax Act, 1961will have disastrous consequences as assessees would pleadthat they were not liable to pay excise duty, sales tax, etc.Keeping such factors in mind, impugned activity held asmanufacture or production and respondents entitled to benefitof Section 80-IA ibid. Held that, mere extraction of stonesmay not constitute manufacture. Further, even after extraction,if marble blocks are cut into slabs per se will also not amountto manufacture. The word production held as wider in scopeas against manufacture in several judgments by SupremeCourt. Production means manufacture plus something inaddition thereto. [Income Tax Officer, Udaipur Vs. Arihant Tiles& Marbles Private Limited 2010 (249) E.L.T. 161 (S.C.)]Classification

Revenue is seeking classification of Commander range ofvehicles under Heading 8703 of Central Excise Tariff whileappellant has classified them under the Heading 8702 ibid.Relevant chapter note defines the expression “public transporttype passenger motor vehicle” as vehicles designed fortransport of 10 persons or more, including the driver. Both expertbody and Transport Commissioner are not certifying that vehicledesigned to carry 10 persons on the ground that they were notrequired to verify such aspect. Further investigations revealed

10


February2010 The art of progress is to preserve order amid change and to preserve change amid order - Alferd North Whitehead

that the design of the vehicle is itself not suitable for transporting10 persons, although the intention was to manufacture a 10-seater. Hence, the vehicle is not certified as transport vehicle byTransport Commissioner. Accordingly, sale of vehicle as a 10-seater is not relevant as common parlance test is not applicable.Provisions in Central Excise Tariff or HSN on method to determineseating capacity is absent. Accordingly, the Motor Vehicles Act,1988 and Maharashtra Motor Vehicle Rules, 1989 is reliable.Held that, vehicle is not classifiable under Heading 8702 ibidbased on load carrying capacity. Impugned order classifyingvehicle under Heading 8703 ibid sustainable. [Mahindra &Mahindra Limited Vs. Commissioner of C. Ex., Mumbai-V 2010(249) E.L.T. 182 (Tri-Mumbai)]VALUE ADDED TAXVAT on Lottery Tickets� The current case pertained to period prior to ruling in Sunrise

Associates Vs. Government of NCT of Delhi [2006] 3 VST 151(SC) holding lottery tickets is not goods amenable to salestax. Held that decision in H. Anraj Vs. Government of TamilNadu [1986] 61 DTC (SC) is applicable. Levy of value addedtax on face value of lottery ticket is incorrect. Value of rightto participate in draw alone is taxable. Accordingly, the matterremanded for decision in accordance with Law laid down bySupreme Court. [Kenlott Gaming Solutions Private Limited

Vs. State of Haryana and Others [2010] 27 VST 265 (P&H)]Input Tax� During the assessment years from 2005-06 to 2007-08, the

petitioner made certain purchases paying input tax at 12.5%on the value of goods. Subsequently, the petitioner sold thegoods on which it was liable to pay four percent tax. Afteradjusting the earlier payment and the subsequent paymentto be made, the petitioner made claim before theDepartment for refund of the excess input tax paid.Accordingly, the Department refunded excess input tax paidby the petitioner in the months of March and April 2008but refused to pay interest on the delayed refund. On writpetitions, held that, admittedly the Department collectedthe entire 12.5% input tax from the seller together withinterest at 15% p.a. and the penalty as the seller failed toremit it to the Department within the time stipulated underthe statute. The Department was entitled to retain only theinput tax at 4%, consequent interest on delayed paymentand penalty collected from the seller. It was liable to refundthe excess input tax together with interest under section 50of the Karnataka Value Added Tax Act, 2003 read with rule128 of the Rules. [Kirloskar Electric Company Limited Vs.Assistant Commissioner of Commercial taxes and another[2010] 27 VST 81 (Karnataka)]

Important Dates to remember during the month of February 2010

5-Feb-10 - Payment of Service Tax for the month of January 2010. (in case of persons other than individual,

proprietor & partnership firms)

- Payment of Central Excise Duty for the month of January 2010.

6-Feb-10 - E - Payment of Central Excise Duty & Service Tax for the month of January 2010.

7-Feb-10 - Payment of Tax deducted & Tax Collected in the month of January 2010.

10-Feb-10 - Filing of monthy returns of Central Excise for the month of January 2010.

15-Feb-10 - Filing of VAT 120 under KVAT Laws for the month of January 2010.

- Payment of Provident Fund and filing of Form 5 & Form 10 for the month of January 2010.

20-Feb-10 - Filing of VAT 100 under KVAT Laws for the month of January 2010.

- Payment of Professional Tax for the month of January, 2010.

21-Feb-10 - Payment of Employee State Insurance for the month of January 2010.

25-Feb-10 - Filing of Monthly returns of Provident Fund for the month of January 2010. ( Form 12A)

Name : CA Mohan Lal KhariwalM.NO. : 002884

OBITUARY

Born on : 27.12.1927

Expired on : 06.01.2010

We deeply regret the demise of CA. Mohanlal Khariwal, Founder Member of KSCAA on06-01-2010. He was aged 83 years and was actively involved in the profession till his last breath.He was a guide and lived as a role model to lot of youngsters. He was heading a family which has

produced number of Chartered Accountants. Lets pray God "May His Soul Rest in Peace."

11


February2010They say that time changes things, but you actually have to change them yourself – Andy Warhol

We are glad to know that you have registered for PE-II / PCC / IPCC / C.A Final Course and would be appearing for May 2010exams. Few of you might have taken coaching classes at our Institute. Many students have requested us for organizing special

classes; Pre-exam crash course for the benefit of the students appearing in May 2010 examinations, apart from the regularcoaching classes. Accordingly we have fixed up special sessions on the following subjects and have invited renowned facultymembers from Chennai, Bangalore and Hyderabad to conduct the sessions.

PCC / IPCC / PE II Timings: 10.00 am to 06.00 pm

SL No DATE DAY SUBJECT FACULTY MEMBERS

1. 01/03/2010 Monday ADVANCED ACCOUNTING CA. M.F. JAISON - CHENNAI

02/03/2010 Tuesday ADVANCED ACCOUNTING CA. M.F. JAISON - CHENNAI

2. 03/03/2010 Wednesday BUSINESS & CORPORATE LAWS CA.S. SRIKA NTH - CHENNAI

04/03/2010 Thursday BUSINESS & CORPORATE LAWS CA.S. SRIKA NTH - CHENNAI

3. 05/03/2010 Friday COSTING & F M CA. SAMPATH KUMAR - BANGALORE

06/03/2010 Saturday COSTING & F M CA. SAMPATH KUMAR - BANGALORE

4. 08/03/2010 Monday INCOME TAX CA. PULI NVK SATHISH KUMAR - CHENNAI

09/03/2010 Tuesday INCOME TAX CA. PULI NVK SATHISH KUMAR - CHENNAI

FINAL Timings: 10.00 am to 06.00 pm

1. 10/03/2010 Wednesday ADVANCED ACCOUNTING CA. L. MURALIDHARAN - CHENNAI

11/03/2010 Thursday ADVANCED ACCOUNTING CA. L. MURALIDHARAN - CHENNAI

2. 12/03/2010 Friday MAFA CA. L. MURALIDHARAN - CHENNAI

13/03/2010 Saturday MAFA CA. L. MURALIDHARAN - CHENNAI

3. 14/03/2010 Sunday CORPORATE LAW CA.S. SRIKANTH - CHENNAI

15/03/2010 Monday CORPORATE LAW CA.S. SRIKA NTH - CHENNAI

4. 17/03/2010 Wednesday INCOME TAX CA. SURESH T. G. - CHENNAI

18/03/2010 Thursday INCOME TAX CA. SURESH T. G. - CHENNAI

5. 19/03/2010 Friday COST MANAGEMENT CA K. HARIHARAN - CHENNAI

20/03/2010 Saturday COST MANAGEMENT CA K. HARIHARAN - CHENNAI

6. 22/03/2010 Monday MGMT INFO & CONTROL SYS MR. BVN RAJESWAR - CHENNAI

23/03/2010 Tuesday MGMT INFO & CONTROL SYS MR. BVN RAJESWAR - CHENNAI

7. 24/03/2010 Wednesday INDIRECT TAXES CA. G.V. RAO - HYDERABAD

25/03/2010 Thursday INDIRECT TAXES CA. G.V. RAO - HYDERABAD

8. 26/03/2010 Friday QUANTITATIVE TECHNIQUES Mrs. MALATHY SUNDARARAJAN - BLR

27/03/2010 Saturday QUANTITATIVE TECHNIQUES Mrs. MALATHY SUNDARARAJAN - BLR

PE-II / PCC / IPCC AND FINAL PRE-EXAM CRASH COURSE FOR MAY 2010 EXAM

The fees for the special classes are as follows & can be paid through CASH:

Final : Both Groups Rs.1500/-, PE-II / IPCC and PCC :All the Subjects Rs.1000/-,I Group only Rs.750/-, Single Subject Rs.300/-II Group only Rs.1000/- ,Single Subject Rs.500/-

To register please contact: Mrs. Roopashree (080-30563513 / [email protected])

CA. Cotha S. Srinivas CA. Venkatesh Babu T RChairman Secretary

12


February2010 Only the wisest and stupidest of men never change.” - Confucius

Announcement byBANGALORE BRANCH

OF SICASASICASA IS ORGANISING ONE DAY

FUN CUM LEARNING PROGRAMMEFOR CA STUDENTS TO BE HELD ON SUNDAY,

THE 7TH OF FEBRUARY 2010 AT BRANCH AUDITORIUM.

THE PROGRAMME ATTRACTIONS ARE BRAIN STORMINGGAMES SUCH AS AAP KA ADALAT,

J.A.M.(JUST A MINUTE), PLANE CRASH, PICTIONARY,

INTERESTING PRESENTATION ONL.L.Ps.(LIMITED LIABILITY PARTNERSHIPS) AND

PRIZE DISTRIBUTION CEREMONY.

WE REQUEST THE CHARTERED ACCOUNTANTS TOENCOURAGE & SEND THEIR ARTICLE ASSITANTS

IN LARGE NUMBERS TO ATTEND THE PROGRAMME.

TIMINGS: 10.30A.M. UPTO 4.30P.M.

REGISTRATION FEES:RS.50/- ONLY (INC. OF LUNCH & TEA)

CONTACT:MS.ROOPA @ 30563500 OR 9886810481/9886329313.

INVESTMENT BANKING COURSEA u s t a l G r o u p

www.austalgroup.net/education

LIVE CLASSROOM TRAINING

COMPREHENSIVE FINANCIAL MODELING AND VALUATION ANALYSIS COURSE

Class Format

All 8 sessions are tailored for personalized instruction using the case study approach. Each student follows the bankerteaching the class and builds the financial models along with him. Each session is 4 hours long of in-class live training. The

training model is structured to allow students to also independently pursue investigations and searches on their own.

Course Materials

INTRODUCTION AND FINANCIAL STATEMENT ANALYSISCOMPREHENSIVE VALUATION ANALYSIS

INTEGRATED CASH FLOW MODELINGCOMPLETE LBO MODELINGMERGER (ACQUISITION) MODELING

INVESTMENT BANKING PROCESS AND BEST PRACTICES, INTERVIEW SKILLS AND RESUME REVISION

Course Offerings in Bangalore

Courses are conducted during the week and on weekends to accommodate working professionals and those attendingfull time programs. Please refer to our website for the most recent updated schedule.

For More Information

Please email us at [email protected] or sign up on our website at www.austalgroup.net/education.

Please visit our website to view all our offerings.

Adv

t.A

dvt.

Required Article clerkslooking for challenging careers

We are a CA firm having corporate and multinationalclients. We offer excellent exposure in corporateaccounting, statutory audits, internal audits, SoXaudits, income-tax, international tax, transferpricing, service tax, VAT and other indirect taxes.

We require smart, brilliant and hard-working Articleclerks for immediate recruitment for our firm.

Interested Candidates may please send theirdetailed resumes / bio-data to:

Rishi Madhur & Co.“HVM House”, Ist Floor,# 106, Amarjoti Layout,Off Intermediate Ring Road, Domlur,Bangalore -560 071.www.rishimadhur.comPh: 4114 5757 / 4114 5858 / 25352222Email: [email protected]

13


February2010

One key to successful leadership is continuous personal change.Personal change is a reflection of our inner growth and empowerment.” - Robert E. Quinn

Adv

t.

Adv

t.

Adv

t.

Adv

t.

Bangalore based

FCA is

willing to merge /

associate with

other CA’s / Firms

on long term basis.

Kindly mail at

[email protected]

WANTEDCHARTERED ACCOUNTANTWanted a fresh chartered accountant

for our firm of 42 years standing, with

7 Partners. Attractive salary offered.

Interested candidates should

apply immediately with bio-data and

copies of all marks card.

Please write to:

M/s. Phillipos & Co.,Chartered Accountants,

P.B. No.534, FRASER TOWN,

BANGALORE-560 005

Required Chartered Accountantslooking for a career in Taxation

We are a CA firm having corporate and multinationalclients. We offer excellent exposure in taxation and otherservices.

The candidate should be a Chartered Accountant whoseimmediate career objective should be to work in a CAfirm in the direct and indirect tax field includinginternational tax.

The candidate should be willing to commit himself /herself for atleast one year to the job.

Our firm offers the advantages of an attractiveremuneration package commensurate with profile andexperience and fast-track career advancementopportunities for committed candidates.

Interested Candidates may please send their detailedresumes / bio-data to:

Rishi Madhur & Co.“HVM House”, Ist Floor, # 106, Amarjoti Layout,Off Intermediate Ring Road, Domlur,Bangalore -560 071.www.rishimadhur.comPh: 4114 5757 / 4114 5858 / 25352222Email: [email protected]

RequiredChartered Accountants

We are a consulting organization focused on buildinga knowledge eco-system for an inclusive growth forour team and clients. Our knowledge-based foundationand delivery propositions anchor finance and taxfunctions leaving our clients to focus on their businessand core competencies. Our value proposition lies inour commitment to innovation, trust and speed. Pleasevisit our website at www.accretiveglobal.com to knowmore about us.

We require professionals for senior positions in our(i) controllership and internal audits vertical; (ii) directtax vertical and (iii) international tax and transfer pricingvertical. Chosen candidates would be assured of anexcellent career progression along with attractiveremuneration package.

Interested candidates are requested toemail their detailed profiles to

[email protected].

Accretive Business Consulting Private Limited+ 91 80 4151 6187 | www.accretiveglobal.com |

14


February2010

“Unless you are prepared to give up something valuable you will never be able to truly change at all,because you’ll be forever in the control of things you can’t give up.”— Andy Law

think differently act perfectly - bangaloreicai.org · think differently act perfectly ... interest...

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