Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

When the original authority and appellate authorities come up with a categorical finding that there is no suppression of facts, Revenue appeal does not merit any examination under Section 35G: High Court

THE assessee, a cable operator, was issued a show cause notice for demanding service tax of Rs. 25.79 lakhs for providing internet services and advertisement services and proposed to levy penalties under Sections 76 and 78 of Finance Act, 1994. The lower authority confirmed Rs. 3.51 lakhs with imposition of penalties under Sections 76 and 78 of the Act. The Appellate Commissioner set aside the penalties and this order was upheld by the CESTAT. Hence, this appeal by the Revenue before the High Court.

Income Tax

Real estate developer - sale of land held as stock-in-trade to be treated as business income and not capital gains: ITAT

THE device of constituting partnership firm with the assessee as one of its partners and then his retirement after 11 days on the basis of retirement deed, the stamp papers for which were purchased simultaneously with the formation of the partnership firm, do go to show that the assessee was not genuinely inducted in and then removed from the firm as partner in the said firm. On the other hand the reality of the transaction which can be viewed by the naked eyes is that the assessee agreed to sell development right in Ghatkopar plot to the four persons.

Customs

Software recorded in CDs is prima facie classifiable under heading CTH 85.24 and chargeable to ‘nil' rate of duty – goods not available for confiscation – redemption fine prima facie not imposable - Waiver granted from making pre-deposit of customs duty, penalty and fine: CESTAT

THE dispute is regards the item ‘ Software recorded in CDs ' which the Commissioner as the adjudicating authority classified under Heading 84.71 and accordingly demanded duty @5% + 16% on the entire value of Rs.3,94,00,694/-, which comes to over Rs.85 lakhs. He also imposed a redemption fine of Rs.1 Crore while imposing a penalty equivalent to the duty demand. The appellant is before the CESTAT with a prayer for waiver of pre-deposit and stay of recovery of the amounts demanded.

See our columns Tomorrow for the judgements