Jurisprudentiol - Friday's cases

By Vijay Kumar

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

Club or Association Service provided by appellant is not utilized by poor and needy but by people who have social status and are financially well off - promoting particular game or sport is not public service - object of appellants cannot be considered as charitable in nature - Appellant liable to pay ST: CESTAT by Majority

THE appellant is a member of the Board of Control for Cricket in India (BCCI). From the income proceeds of BCCI, the members were given reimbursement under various categories such as, TV Rights subsidy, Tournament receipts, IPL subsidy players' expenses reimbursements and subsidy for international matches. These amounts are given to promote the game of cricket and also to undertake construction of infrastructure for playing cricket within the jurisdiction of the members.

The CCE & ST, Nagpur was of the view that the amounts received from BCCI by the appellant is for providing infrastructure support to BCCI for conducting tournaments and, therefore, the same is classifiable under the category of 'Business Support Services'.

Income Tax

Whether when nothing is found during a Search & Seizure operation, even then an exhaustive panchnama is required to be made - YES: Delhi HC

A search and seizure operation u/s 132 was carried out against the assessee group on 31st January, 2008. Assessee had accepted and not disputed the search and seizure operations in the writ petitions but the contention raised was that against 22 petitioners, no panchnamas were drawn/issued and thus proceedings u/s 153A were void and bad for want of jurisdiction. The issues before the Bench are - Whether delay in raising the contention that names of assessee's group concerns are not in the panchnamas, specially when the said concerns have the requisite copy of the panchnamas and were aware that their names did not figure in the panchnamas, is a valid ground to deny search warrants; Whether the address mentioned in case of search of a company has to be its registered office only; Whether for the purpose of making assessment u/s 153A, issue of punchnama is a necessary condition; Whether punchnama is required, in case where nothing is found or seized in the search; Whether in case of defective panchnamas, search or initiation of search can be disputed and Whether the assessment orders u/s 153A can be permitted to become a matter of writ proceedings as the first appellate forum. And the verdict goes in four of the Revenue.

Central Excise

CENVAT Credit on returned goods - Duty paying Documents - Adjudication Order beyond scope of Show Cause Notice not sustainable: CESTAT by majority

REVENUE proposed to deny the credit on the sole ground that the delivery challans issued by the sales depots are not prescribed documents under Rule 7 and as such, the credit availed by the appellant was not proper. However, while adjudicating, lower authorities have drifted from the said allegation and has extended the scope of proceeding by introducing another allegation that the goods received back from the sales depots cannot be correlated with the goods originally cleared. It is well settled law that the orders beyond the scope of allegations made in the show cause notice are not sustainable. There was no allegation in the notice doubting the fact of returned goods being different than the one originally cleared. The revenue cannot make out a new case at the adjudicating or appellate stage. As it is well settled that the Revenue has to adjudicate the matter on the basis of allegations made in the show cause notice and no new case can be made out without putting the assessee on notice, and as such, on this short ground itself the impugned orders are required to be set aside.

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