Jurisprudentiol-Thursday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax Refund-Entire exercise of Revenue is a non-starter inasmuch as it is settled law that classification of product or services cannot be done by authorities at recipient's end-Appeal allowed: CESTAT IN the case in hand, the classification of Technical Testing & Analysis and Customs House Agent's services are being sought to be classified under various other services and refund is sought to be rejected. This is not in consonance with the law which has been laid down by various judicial pronouncements.Income TaxWhether assessee can be denied exemption merely because he himself did not cultivate agricultural land - NO: HCASSESSEE an individual had filed ROI for the AY 2008-09. During assessment, AO noticed that the assessee was owner of 1/4th of a property acquired by the State, for which under the order of the Court, an additional compensation of Rs.4,47,98,432/- was paid and therefore, was entitled to 1/4th additional compensation of Rs.1,11,99,608/. The assessee contended that in view of provisions of section 10(37) read with section 45(5), no capital gain tax was payable. The AO, however, rejected such contention on the ground that the land in question was situated within the municipal limits of Gandhinagar, which had population of more than 10000. Section 10(37) therefore, does not apply to the assessee. Issues before the Bench are - Whether assessee can be denied exemption merely because he himself did not cultivate the agricultural land; Whether the concept of personal cultivation also recognizes, cultivation of a land through hired labourer or through member of one's family and Whether the exemption u/s 10(37) can be denied merely on the basis that the assessee was not residing close to the land or was also pursuing some other business and thus the land was not used for agricultural purposes by the assessee. And the verdict goes in favour of the assessee. COFEPOSA Preventive detention is an extreme step which is required and may be justified, but when detention order does not meet prescribed parameters and fails to comply with procedural requirements, order stands vitiated and has to be struck down: HC IF a detenu is in police or judicial custody and there is no imminent possibility of his release, the rule is that the power of preventive detention should not be exercised. However, when there is imminent possibility that the person in custody may be released, power of preventive detention can be exercised. Preventive Detention is permissible under Article 22(3)(b) of the Constitution of India but the same has to ordered/directed keeping in view that right to life and liberty are enshrined in Article 21 of the Constitution of India. See our Columns Thursday for the judgements Until Tomorrow with moreDDT Have a nice day.