TIOL-DDT 1975 · the untouched capture
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<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd"> <html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=14276"><img src="http://www.taxindiaonline.com/RC2/image/ddt/ddt_1794.jpg" alt="DDT in Limca Book of Records" width="175" height="120" hspace="5" border="0" align="right"></a></font></strong></font><font color="#663399" size="3">TIOL-DDT 1975</font><br> 02.11.2012 <br> Friday </strong></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Sex and Service Tax </font></strong></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>A Netizen writes in</strong> - </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"<strong>KHAJURAHO</strong> is a town in the state of Madhya Pradesh and is famous for its temples containing some sexual or erotic art outside the temple or near the deities. There are many interpretations of the erotic carvings. It is said that these suggest tantric sexual practices. Anyway, the fact of the matter is the hoi polloi perceive it as obscene bordering to the extent of pornography. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The law relating to pornography or 'obscenity' is laid down in <strong>Sec.292</strong> of the <strong>Indian Penal Code</strong>. As per the Act, <font color="#FF0000"><strong>accessing pornography in private is not illegal</strong></font>. Moving forward (and backward) in India, watching or possessing pornographic materials is legal but distribution of such materials is banned. Likewise, the publication or production of X-rated materials is illegal. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In this scenario, with the massive <strong>penetration</strong> of Internet in our country thanks to mobile telephony and the various uses to which it is put to by the masses, mushrooming of pornographic sites has become the order of the day. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Coupled with the entry of an Indian born adult star into the Big Boss house last year and the immense popularity that she earned by the second edition of the 'body' film, she has gone<em><strong> gung ho</strong></em> and has given feast for the masses eyes by her own website which allows the <em><strong>bleary & dreary</strong></em> eyed to watch her and her <em><strong>performances </strong></em>for a month/a quarter/a year on payment of Indian Rupees (Rs.856.95/Rs.2144.95/Rs.3433.95 respectively) through net banking and all available modes. There are lot many other websites which nowadays cater to the thirsty Indians and which are doing roaring or for that matter screaming business. I had also stumbled (on purpose) to a similar site and found that they were charging Rs.185/- for fifteen minutes of unbridled pleasure! All this I inform through your column because I think that this act falls within the scope of ‘accessing pornography in private' and which is not illegal. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On the question of whether this highly<em><strong> arousing </strong></em>service being provided is chargeable to Service Tax under the category of "on-line information and database access or retrieval", the defence that the ‘adult star' may put forward would be that these services are being provided by her through herself and her husband to allow Indians to liberate themselves and she, in fact, is doing a great ‘service' to the nation obsessed with the three letter word. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">She is actually<em><strong> bang on</strong></em> target. A visit to the notification <strong>25/2012-ST</strong> would reveal that the Government also has the same ideology inasmuch such ‘services' are exempted from Service Tax. Surprised at the missionary position? </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Take a look at the following entry - </font></p> <blockquote> <p align="justify"><font color="#FF0000" size="2" face="Verdana, Arial, Helvetica, sans-serif">"34. Services received from a provider of service located in a non taxable territory by - </font></p> <p align="justify"><font color="#FF0000" size="2" face="Verdana, Arial, Helvetica, sans-serif">(a) Government, a local authority, a governmental authority or<strong> an individual in relation to any purpose other than commerce, industry or any other business</strong> or profession;" </font></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Obviously, the services are being provided from outside India i.e a ‘non-taxable territory' as these movies are shot in and around homes in California and the "recipient" of the service in India uses it for the purpose other than business or commerce, and obviously so - it is <em><strong>self gratification</strong></em>. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Indian youth and the old should be thankful to the Central Government for allowing them to ogle and satisfy their voyeuristic tendencies without paying any Service Tax - direct or through the reverse charge mechanism!" <a></a></font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Income Tax -Filing of ITR-V Form - Time Limit Extended </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">THE Director General of Income Tax (System) as per powers assigned to it under clause (ii) of Para 14 read with clause (7) of Para 4 of the 'Centralized Processing of Returns Scheme, 2011', issued as per CBDT Notification No. SO.16(E) dated 4.1.2012, has decided to extend the time limit for filing ITR-V forms relating to Income Tax Returns filed electronically (without digital signature Certificate) for <strong>A.Y.2010-11 (filed during F.Y. 2011-12) and for A.Y. 2011-12 (filed on or after 1st April,2011).</strong> These ITR-V forms can now be filed <strong>up to 31st December, 2012</strong> or within a period of 120 days from the date of uploading of the electronic return data, whichever is later. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Relaxation has been made since there are still a large number of electronic returns relating to A.Y. 2011-12 which had been filed on or before due date but for which the ITR-V forms have not yet been received at the Centralized Processing Centre (CPC), Bengaluru. These taxpayers are being given an opportunity to send ITR-V forms to the CPC, Bengaluru by the date as mentioned above. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Taxpayers can also verify their status of receipt of ITR-V at e-filing website <a href="https://incometaxindiaefiling.gov.in"><strong>https://incometaxindiaefiling.gov.in</strong></a>. They can also download the ITR-V from the same website from sub-menu <strong>My Return</strong> under main-menu of <strong>My account</strong> after login into the website. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The ITR-V forms should be sent by ordinary post or speed post addressed to CPC, Post Bag No.1, Electronic City Post Office, Bengaluru-5601 00. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=wnew/it12not001_II.htm"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBDT Notification No. 1/2012 UNDER CPR SCHEME 2011, Dated: October 23, 2012 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Exchange Rates Notified </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBEC</strong> has notified the Exchange Rates for imported goods and export goods with effect from 02.11.2012. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=24&filename=notification/custom/2012/cnt12_097.htm" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBEC Notification No. 97/2012-Cus.,(N.T.), Dated: November 01, 2012 </font></strong></a></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">Chennai Bar Also Wants Functioning CESTAT Bench </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>YESTERDAY</strong>, DDT reported about a letter addressed by the Bangalore Indirect Tax Practitioners Association to the CESTAT President for posting a Technical Member at Bangalore CESTAT. DDT also mentioned about the same problem in Chennai. We were told that the Indirect Bar Association of Chennai also has written to the Finance Minister. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">G. Natarajan, Secretary of the Bar Association, in his letter to the FM submits, </font></p> <blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ Member (Judicial) post in the Chennai bench of the CESTAT is vacant ever since the retirement of Smt. Jyothi Balasundaram, Hon'ble Vice President on 24.10.2011. Subsequently, the Hon'ble Member (Technical), Shri. C. Satapathy has also retired on 11.07.2012. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ During the last one year, i.e. from November 2011, the Division bench has functioned only for around 50 days, by way of deputing Members from other benches. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ More than 7000 appeals and more than 1500 stay petitions are pending before the Chennai bench of the CESTAT. Non functioning of the bench over a continuous period of time is posing serious difficulties for the litigants. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ As the stay petitions are pending for a long time, the department is time and again resorting to coercive recovery and each time we have to approach the Hon'ble High Court with Writ Petitions. Further, since the stay orders already passed by the bench are expiring upon 180 days, in view of the provisions of 35 C (2A) of the Central Excise Act and similar provisions in respect of Customs / Service Tax, Miscellaneous petitions for extension of stay are also being filed in large numbers, adding to the pendency. </font></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In view of the above, the association has resolved to request the FM to take immediate steps to fill up the vacancies in the posts of Member (Judicial) and Member (Technical) in Chennai bench as early as possible. </font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBI Arrests Lady ITO </strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>IT</strong> is reported that a lady Income Tax Officer has been arrested by CBI in Mumbai yesterday for demanding and accepting an advance bribe of Rs. 1.5 Lakhs. It seems the lady demanded the bribe on behalf of her boss, an Additional Commissioner. In September, she demanded a bribe of Rs. 2.50 Lakhs, which was later, enhanced to Rs. 6 Lakhs. Of this, she collected 1.5 lakhs when the CBI closed in. She has been remanded to CBI custody for three days. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">This lady will spend the next twenty years of her life running around lawyers and courts - she will lose her job and maybe spend some time in jail. How will her children grow up with a mother in jail? How will relatives and friends treat her? Obviously these thought don't haunt the officers when they demand and accept bribes - but the hard fact is - your life is finished if you are caught - is that bribe worth losing your life and that of your children? </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">I am told a revenue officer who was ill treated by a CBI Court Official told the Court official that he deserved better treatment, as he was a Gazetted Officer. The Court Official said, "You are a criminal and you don't deserve any better treatment". </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Vigilance Awareness Week is on and perhaps each Government Department should show to the employees the plight of their colleagues (and their families) who are caught by CBI and are in jails. This is what the Chinese Government does - see<strong> <a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=16127" target="_blank">DDT 1966</a></strong>.</font></p> <p align="center"><strong><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">DDT Cartoon </font></strong></p> <p align="center"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_1975.jpg" alt="" width="400" height="451" hspace="5" border="0" align="center"><br> <br> </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#006600">Jurispruden</font><font color="#FF6633" size="5">tiol</font><font color="#006600"> - Monday's cases</font></strong></font></strong></font></p> <p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_hammer.jpg" alt="Legal Corner Icon" width="100" height="84" hspace="5" border="0" align="left">Service Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Section 80 benefit can be allowed even in cases of suppression - CESTAT</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THIS</strong> is an interesting case of demand of service tax on transportation of goods by air. What makes the case interesting is the fact that demand finally survived for a period of one week, that is also because of non-availability of exemption during this short period. The service was exempted under Notification No 28/2004 ST dated 17.09.2004 which exempted the taxable service provided by an aircraft operator to any person in relation to transport of export cargo by aircraft from the whole of the service tax leviable thereon. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Section 80 provides for waiver of penalty imposed under Section 78 also - That means even under a case where there is suppression there is a scope for invoking Section 80 though such case can be rare - The very fact that Section 80 mentions penalty under section 78 shows that in exceptional cases waiver can be granted under Section 80 even when suppression is invoked - Benefit of Section 80 extended to the appellant. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Income Tax </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Whether TDS obligation arises as soon as assessee makes provision for same in books and payees remain unidentifiable - NO: ITAT </font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE </strong>issues before the Bench are - Whether TDS obligation arises as soon as assessee makes provision for the same in books and the payees remain unidentifiable; Whether any wrong is committed when the assessee makes provisions for TDS on unidentifiable payees in one year and writes back the same in the next year and deducts TDS while debiting the payment; Whether when certain expenditures are disallowed u/s 40(a)(i), the assessee can again be held liable to TDS on the same expenses and Whether any TDS liability u/s 194C arises on purchase of goods, packing material and expenses on clinical trials. And the verdict goes in favour of the assessee. </font></p> <p align="justify"><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">Central Excise </font></strong></p> <p align="justify"><strong><font color="#FF6633" size="2" face="Verdana, Arial, Helvetica, sans-serif">Rule 13(2) of the CCR, 2002 was invoked for imposition of penalty while issuing SCN on 19.11.2003 but since rule was already omitted w.e.f 01.03.2003, no cause for imposition of penalty: CESTAT</font></strong></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE </strong>appellants are engaged in the manufacture of excisable goods such as Circuit Breakers, Instruments, Transformers etc. and avail CENVAT credit on inputs procured indigenously as well as by import when they availed credit of CVD paid. During the period in dispute the appellants procured the inputs from a 100% EOU and availed CENVAT Credit of the actual CVD amount mentioned in the invoices issued by 100% EOU. However, as per the provisions of Rule 3(6)(a) of the CENVAT Credit Rules, 2002, the CENVAT Credit in respect of such procurements were restricted to a quantum determined by the formula given therein. The departmental Audit Party pointed out the mistake and the appellants reversed the credit subsequently and paid interest of Rs. 1,31,675/- in cash. Subsequently, a show-cause notice was issued on 19.11.2003 for appropriation of the amount paid along with interest and for imposition of penalty </font></p> <p><strong><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">See our columns Monday for the judgements</font></strong></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Monday with more<strong> DDT </strong></font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a Nice Weekend. </font></p> <p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to</font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <strong> <a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com </a></strong></font></p> </body> </html>