Jurisprudentiol – Friday's cases

By Vijay Kumar

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

GTA - Assessee paid tax without abatement as per Circular of DGST - Later Board clarified that assessee is eligible for abatement - Refund with interest to be granted: HC

CONFUSION was created by the redundant circular dated 30.3.2005, which was rectified by the circular dated 27.7.2005. In such a situation, coupled with the bona fides clearly attributable to the assessee, the benefit of the circular dated 27.7.2005 would be available to the assessee. The substantial questions of law are answered against the Revenue, and in favour of the assessee. It shall be entitled to amount of refund along with interest at the same rate at which the Revenue is entitled to interest for delayed deposit by the assessee, from the dates of deposits of the excess amount till the date of refund.

Income Tax

Whether assessee is entitled to claim deduction u/s 35D even after word 'industrial' is omitted from April 1, 2009 - NO, rules ITAT

THE issues before the Tribunal are - Whether the expenses incurred towards issue of equity shares to the public is a capital expenditure; whether the interest income earned on deposit of share amount pending for allotment with the bank is to be reduced by the public issue expenses incurred and whether the assessee is entitled to claim deduction u/s 35D as the word ‘industrial' in section 35D(1)(ii) is omitted w.e.f. 1st April 2009 and the amendment is not retrospective. Assessee's appeal partly allowed.

Customs

Provisional assessment - Interest only after 13.7.2006: HC

IT is a well established principle of construction that a statute inconsistent with substantive rights is prima facie considered prospective unless it is expressly or by necessary implication may have been given retrospective operation. In absence of any indication in the statute itself either specifically or by necessary implication giving retrospective effect to such a statutory provision, the same cannot be applied to cases of provisional assessment which took place prior to the said date. Any such application would amount to retrospective operation of the law.

Central Excise

Zinc dross and Skimmings cannot be treated as excisable goods even though they find specific entry in Excise Tariff and even though they may fetch some price in market: CESTAT

BOARD in Circular dated 28.10.2009 has clarified that prior to 10th May 2008 when section 2(d) of the CEA, 1944 was amended Zinc dross and Skimmings cannot be treated as excisable goods even though they find specific entry in the Excise Tariff and even though they may fetch some price in the market – Demands for earlier period set aside:

See our columns Tomorrow for the judgements