Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Whether slump sale without separately fixing price of different items comes within purview of 'sale' or 'otherwise transfer' of plant and machinery as mentioned in Sec 32A(5) - HC

THE issues before the High Court are - Whether slump sale without separately fixing the price of different items comes within the purview of “sale” or “otherwise transfer” of the plant and machinery as mentioned in Section 32A(5) of the Act and whether having regard to the object and scheme of Section 32A(5) of the Act if the plant & machinery is not separately transferred out of the business but such plant & machinery remains fully in the business or the undertaking which has been transferred, the provisions of Section 32A(5) is applicable. And the verdict goes against the assessee.

Service Tax

Service tax on Port Services

LARGER Bench rules that there is no requirement to refer to Major Port Trusts Act for provisions other than clause (q) of Section (2) of the Major Port Trusts Act, 1963 or clause (4) of Section (3) of the Indian Ports Act, 1908 – Stevedores are liable for service tax under port service – Authorization under Major Port Trusts Act is not required to attract service tax.

Central Excise

Finalisation of Provisional assessment - adjustment of excess duty paid against short payment - only subject to unjust enrichment

SUCH excess amount can certainly be adjusted towards any other duty liability of such assessee under the Excise Act, 1944 and Rules made thereunder, however, such adjustments are subject to the applicability of the principle of unjust enrichment. Therefore, before grant of adjustment, the authority will have to ascertain whether such excess amount is to be actually refunded to the assessee or is liable either wholly or partly to be credited to the account of consumer benefit fund and only thereafter make an order of adjustment to the extent the amount is found to be actually refundable and not liable to be credited to the account of consumer benefit fund.

See our columns Tomorrow for the judgements