Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Cement cleared to construction industry in 50 kg bags not required to affix RSP eligible for benefit of exemption notification 4/2006-CE: High Court

THE construction activity has been considered as a service industry by the Finance Ministry. The two co-ordinate Benches have taken similar view. Under these circumstances, the Tribunal committed no illegality in holding that the construction industry is a service industry and the assessee had satisfied the other requirement of the Notification, they are entitled to the benefit under the Notification.

Income Tax

Sec 142( 2D ) - CIT fixes audit fees for special auditors - Appeal - Tribunal has no inherent power, cannot hear such appeal for lack of specific provision in I-T Act: ITAT

THE issue before the Bench is - Whether Revenue's order fixing the audit fees for special auditors is an appealable order. Whether Tribunal has inherent power to hear an appeal even in the absence of specific provisions for the same in the I-T Act. NO is the answer.

Service Tax

Repair and maintenance of Software - since Board's Circular 70/19/2003-ST, dated: December 17, 2003 was withdrawn only on 10.05.2007, maintenance of Software is not chargeable to Service Tax till 9.5.2007 – Prima facie case in favour – Pre-deposit waived and Stay granted: CESTAT

THE period involved in this case is 9.7.2004 to 30.4.2006 and at that time the applicant was aware of the Board's circular dated 17.12.2003 which was not withdrawn till 9.5.2007 and in the definition of maintenance service, clause (b) 'maintenance or repair of properties whether immovable or not' was substituted only with effect from 1.5.2006. The period involved in the case is 9.7.2004 to 30.4.2006, i.e. prior to the amendment of the definition. This period is also covered in the period involved in the case of Ruchi Infotech where the Tribunal granted unconditional stay. The Hon'ble Supreme Court in case of Tata Consultancy Services has held that software in canned form will be covered as goods. However, the Board's circular dated 17.12.2003 remained in force till 9.5.2007. The applicant has been able to make out a prima facie case in their favour.

See our columns Monday for the judgements