Jurisprudentiol – Friday's cases

By Vijay Kumar

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

Stay/Dispensation of pre-deposit - Confectionery sold in multi-piece packages (jars/pouches) - Prima facie assessable under Section 4A of Central Excise Act, 1944 – Pre-deposit waived.

IN this case, the department raised a demand by holding them assessable under Section 4 and the assessee contested that the jars/pouches should be assessed under Section 4A of the Central Excise Act, 1944. When the stay application came up for hearing, revenue supported its contention by relying on the Supreme Court decision in case of Swan Sweets and the applicants contested the demand by relying on the Larger Bench decision in case of Roys Industries Ltd.

Be it Section 4A or 4, it appears that the revenue is always at the receiving end. May be time to bring another Section (name it as Sec. 4AA) to the effect that “ In cases of assessment disputes under Section 4 or Section 4A, the Section under which duty liability is more will prevail.”

Income Tax

Whether profits from transfer of shares held for less than 30 days is entitled to be treated as short-term capital gains - YES, rules ITAT

THE issues before the Tribunal are - Whether profits from transfer of shares held for less than 30 days is entitled to be treated as short-term capital gains; Whether the profit arising on sale of shares is capital gain or business profit when the assessee has been maintaining two portfolios separately, no borrowed funds utilized for acquiring the shares, the shares shown in the books of account as investment, and the intention was to earn dividend and Whether the loss arising on sale of derivative transactions is speculative loss instead of business loss for the A.Y. 2006-07 as per the notification issued by the CBDT. And the verdict goes against the Revenue.

Customs

Commissioner of Customs (Preventive) cannot be held to have had jurisdiction to issue show-cause notice in relation to imports which were made through New Customs House, Mumbai: CESTAT

NO evidence has been brought on record by the respondent to show that the Commissioner of Customs (Preventive) was specifically assigned the function of issuing the show-cause notice and adjudicating the same in relation to the subject imports which were made through New Customs House, Mumbai.

See our columns Tomorrow for the judgements