Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

In definition of Input Service in rule 2(l) of CCR, 2004, nowhere it is mentioned that input service credit is not available for service utilized outside factory premises – Repair and maintenance service used for running a Water pump situated at bank of Wardha river is an Input Service – When there is a final decision on issue, same is to be respected rather than a prima facie view taken while deciding Stay application: CESTAT

THE respondent is engaged in the manufacture of cement. They have a Water Pump situated at the bank of the Wardha River to draw water for use in the captive power plant. Needless to mention this Pump is required to be kept functional almost 24x7x365 and hence the manufacturer i s required to regularly carry out its repairs and maintenance through a service provider. This service provider pays service tax on the service rendered to the client and the manufacturer avails the CENVAT credit of the same. Revenue cannot digest this fact of availment of CENVAT credit and hence issues a demand notice, confirms the duty without batting an eyelid and imposes penalty and interest.

Income Tax

Income tax - Sec 32 - AO is justified to disallow claim of depreciation on finding that assessee claimed to be acquired never existed: ITAT

ASSESSEE Company, engaged in the business of financial leasing, filed income tax return. The same was processed under section 143(1 )( a) and subsequently evaluated under section 143(3) of the Act. Thereafter the case of the assessee was reopened on the basis of report of investigation wing. In the reassessment proceedings the AO disallowed the claim of 100% depreciation of the assessee on the ground that the assets namely rollers never existed. CIT (A) affirmed the order of the AO. Appeal was filed before the ITAT where it was argued that since the assessee has offered lease rental income for taxation the order of the authorities below is not sustainable.

Customs/Excise/Service Tax

Since last date of filing appeal fell on a Sunday, as per s.10 of General Clauses Act, 1897, Monday, next working day should be treated as last date and consequently condonable period of 30 days is to be computed thereafter Appeal fil ed within condonable period - Matter remanded to Commissioner (Appeals): CESTAT

AN intelligent manner of computing the time period in the matter of delayed filing of an appeal to the Commissioner (Appeals) has been pronounced in a recent decision by the CESTAT. In the present case, the Bill of Entry was assessed on 11.6.2008 and the importer was aggrieved with the assessment. He filed an appeal with the Commissioner (Appeals) on 10.09.2008. The Commissioner (Appeals) refused to entertain the appeal by taking the stand that the appeal had been filed beyond 90 days of the impugned order.

See our columns Tomorrow for the judgements