Jurisprudentiol – Monday's cases

By Vijay Kumar

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

It is well settled principle that where any statutory provision prescribes a particular manner for doing a particular act, then that thing or act must be done in accordance with the manner prescribed therefore – Pre-deposit waived of penalty: CESTAT

THE exporter filed a Shipping Bill for export of Indian Basmati rice. The goods were examined by the SIIB and samples were sent to Deputy Chief Chemist. A penalty of Rs.2,54,048 /- was consequently imposed u/s 114(i) of the Customs Act, 1962 by the Commissioner of Customs (Export), Nhava Sheva. The exporter is before the CESTAT with an application for waiver of pre-deposit penalty.

Income Tax

Income tax - Whether where assessee maintains separate D-mat account for investment and also for trading, and shares are duly recorded in books, AO is wrong in treating short-term capital gains as business income - It is short-term capital gains, rules ITAT

THE issue before the Tribunal is - Whether where assessee maintains separate D-mat account for investment and for trading and the shares are duly recorded in the books of account under the head investments and stock in trade, AO is wrong in treating short term capital gains as business income - Whether SEBI registration charges paid as per the directions of the orders of the High Court for the prior period, are to be considered as prior period expenses though the liability was settled in the current year.

Service Tax

Appellant not entitled to claim refund as the amount of interest paid by them was inextricably linked with amount of service tax paid and was already availed and utilized as CENVAT credit in their business : CESTAT

THE appellant had received ‘business auxiliary services' from foreign commission agents during the period from 10.9.2004 to November 2006. In terms of Rule 2 (i) (d) (iv) of the Service Tax Rules, 1994, inserted with effect from 16.08.2002, they paid the service tax on the commission paid to the foreign commission agent amounting to Rs. 24,28,022/-. Interest amounting to Rs. 2,30,018/- on this amount of service tax was paid on 17.12.2007. CENVAT Credit of the above service tax was taken and utilized by the appellant for payment of duty on their final products. However, on 2.1.2008, they sought refund of the above amount of interest which had been paid.

See our columns Monday for the Judgements