Jurisprudentiol–Wednesday's cases

By Vijay Kumar

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

Chartered Accountant charged with FERA violation and Rs. 26 Lakhs penalty imposed. His plea that he was not a person resident in India, not accepted because documents not authenticated – Matter remanded – High Court

THE appellant is a Chartered Accountant by profession and is also a partner of M/ s.D.J.Shukla & Company Chartered Accountants at Mumbai. Prior to his departure for U.K., the appellant was active partner of M/s. D.J.Shukla & Company. However, after his departure for U.K., he is a dormant partner. According to him, on 2nd September, 1992, he was appointed by M/s. Synthetic and Chemicals Ltd. as their representative in U.K. and on 25th March, 1993 M/s. Synthetic Chemicals Ltd. placed the appellant's services at the disposal of M/s. Nova Atliantis in England. Accordingly, the appellant shifted to U.K. in September, 1992 and he was granted residence permit in U.K. from 16th November, 1992. His wife and two children also left India in June, 1993 and settled down in U.K. along with the appellant.

Income Tax

Sec 43B - is bottling fee charged under State Excise Act equal to tax, duty or cess? - No, such a fee is not covered under Sec 43B as it is merely a payment for grant of approval by State to have exclusive right to deal in bottled liquor: SC

THE dispute relates to bottling fee collected by the State Government under Excise Rules. The issue is whether such a payment is covered under the ambit of Sec 43B of the Income Tax Act? And the verdict is that the crucial expression in Section 43B is ''by way of''. The bottling fee is neither fee nor tax but the consideration for grant of approval by the Government as terms of contract in exercise of its rights to enter a contract in respect of the exclusive right to deal in bottling liquor in all its manifestations.

Service Tax

Appellant paying Service Tax as a ‘Consulting Engineer' on services received from abroad - later claiming that they are correctly covered under Intellectual Property Service w.e.f 10.09.2004 and claiming refund for past period – appellants are estopped from construing the provisions of the agreement to the contra for a part of the period - Tribunal

APPELLANTS continued to pay Service Tax and remained registered as a Consulting Engineer even after 10.09.2004 - The appellants cannot now plead anything contrary to such understanding inasmuch as the question, whether, under the agreement, the appellant was receiving consulting engineer's service is a mixed question of law and fact.

See our columns Tomorrow for the judgements