Jurisprudentiol – Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.MPVAT/CST

Whether sale was interstate or intra state was a question of fact - High Court should not have entertained writ petition: SC

THE High Court ought not to have entertained the writ petitions filed under Article 226 of the Constitution, because whether a sale originating in a State is an inter-state sale or not is essentially a question of fact to be determined by the authorities under the Act, since it involves the application of the provisions of Sections 3, 5, 6 and 9(i) of the Act to the facts established and hence, it will be a mixed question of law and fact. The facts requires to be brought to the notice of the Assessing Authority. It is after such adjudication, the matter can travel from one stage to the other as provided under the Act.

Income Tax

Whether when assessee fails to prove that any agricultural activity was carried on plot of land, located in proximity of residential area, sale of such land gives rise to capital gains - YES: ITAT

ASSESSEE sold an agricultural land and claimed that since it was not a capital asset, the profit on the transfer of the same was exempt. AO concluded that the land was not agricultural in nature and treated the sale transaction as ‘an adventure in the nature of trade'. AO asked the assessee to provide the details of crops grown, expenses incurred for raising the crops and evidence for agricultural receipt. Assessee contended that under a bonafide belief that no income was taxable, no details were maintained by her.

Central Excise

MRP has to be indelibly marked or embossed on the footwear itself - since appellant is only affixing a sticker of MRP on shoes, benefit deniable - no prima facie case in favour - Pre-deposit ordered: CESTAT

THE applicants are engaged in the manufacture of footwear (ch. 64). Foot-wear is notified goods for assessment under section 4A of the CEA and the applicants were paying duty on the MRP of the footwear. The applicants have also availed the benefit of notification no. 5/2006-CE dated 01.03.2006 and cleared the goods at concessional rate of duty. The demand is confirmed on the ground that part of production of footwear is cleared to industrial consumers and, therefore, the footwear cleared to industrial consumers were assessable to duty under section 4 of the CEA. The demand is also confirmed on the ground that the applicant has wrongly availed the benefit of notification no. 5/2006-CE as the applicant has failed to fulfill the condition of the notification.

See our columns Monday for the judgements