Jurisprudentiol– Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Income Tax

India-France DTAA - no definition of 'operation of ships' in Article 9 - benefits cannot be allowed merely because assessee was engaged in shipping business - linkage between transportation of cargo by feeder vessel and mother vessel owned or leased by assessee is a must to claim treaty benefits: ITAT

LACK of uniformity in text is a glaring feature of most DTAAs across the world. And that is how one can see diametrically opposite findings in similar-looking facts and situations. If netizens recall the case of Delmas Shipping South Africa (Pty.) Limited, the Tribunal's decision had gone in its favour. But the latest decision has gone against its sister concern M/s Delmas France. And the reason for the first case was that there was no dispute about the slot charter arrangement with the feeder vessels but in this case, the same fact was disputed by the Revenue and the assessee failed to substantiate the same by any material on record. Besides, no arguments were put forth regarding linkage of feeder vessels with mother vessels.

Service Tax

Detailed Engineering Survey; Cadastral Survey; Soil Investigation; Drawing/submission – not liable to tax under “Consulting Engineering Services." - CESTAT

AS per the definition of consulting engineer, any qualified engineer or firm engaged in the business of rendering advice, consultancy or technical assistance as a profession is liable to pay service tax.

Customs

Stay – pre-deposit - the word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. – High Court

FOR a hardship to be undue', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. It was also observed therein that the word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.

See our columns Monday for the judgements