Jurisprudentiol– Tomorrow's cases

By Vijay Kumar

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

Movement of limestone and rejects in the mining area covered by the entry ‘mining of mineral, oil, gas' and cannot be taxed under ‘cargo handling service' prior to 1 June 2007: CESTAT

IN several decisions, the Tribunal has held that when an activity comes under the service tax net with effect from a certain date the same activity could not be subjected to tax under a pre-existing category unless the scope of the pre-existing categories of service is simultaneously modified.

Income Tax

Carry forward MAT credit available to assessee was to be adjusted first before charging interest under Ss 234B and 234C ; If there is conflict between Rule and substantial provision, Rule must pave way to provision; Revenue cannot rely on Form-I to say that MAT credit under Sec 115JAA should be given only after tax and interest - Form-I cannot go beyond provisions of Act: Madras High Court

If there is conflict between Rule and the substantial provision of the Act, the Rule must pave way to the provision of the Act; revenue cannot rely on the Form-I to say that the MAT credit under Section 115JAA should be given only after tax and interest Form-I cannot go beyond the provisions of the Act: “the intention of the legislature is to give tax credit to tax and not to the tax and interest. Once the intention is clear, the revenue cannot rely on the Form-I to say that the MAT credit under Section 115JAA should be given only after tax and interest. Further we have answered the first question of law in favour of the assessee i.e. the MAT credit under Section 115JAA should be given effect to before charging the interest under Section 234B and 234C. Rule 12(1)(a) and Form-I cannot go beyond the provisions of the Act. Form-I cannot lay down the order of priority of adjustment of TDS, advance Tax, MAT credit under Section 115JAA which is contrary to the provisions of the Act.

Customs

Detention - writ petition can be entertained at pre-detention stage only if it is passed under a wrong Act; against a wrong person; for a wrong purpose; vague, extraneous and irrelevant grounds or wrong Authority - even smaller Benches of the Supreme Court are bound by Judgments of larger Benches: Bombay High Court

THE Courts have necessary powers in appropriate cases to interfere with the detention order but the scope of interference was limited to the following exceptions:

(i) That the impugned order is not passed under the Act under which it is purported to have been passed;

(ii) That it is sought to be executed against a wrong person;

(iii) That it is passed for a wrong purpose;

(iv) That it is passed on vague, extraneous and irrelevant grounds; or

(v) That the authority which passed it had no authority to do so.

See our columns Tomorrow for the judgements