Jurisprudentiol - Thursday's cases

By Vijay Kumar

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

Telecom Infrastructure Services are more appropriately classifiable under Business Support Service - demand under BAS is not sustainable: CESTAT

THE contention is that in respect of Passive Telecom Infra Services, the applicants were charged under Business Auxiliary Services whereas the Tribunal in the case of B.S.N.L. Vs. Commissioner of Central Excise, Jaipur-I held that the activity undertaken by the assessee, which is similar to the applicant, is taxable under the category of Business Support Service. Hence, the demand in respect of Passive Telecom Infra Services is not sustainable.

Income Tax

Whether profit relatable to sale of unutilized FSI is also eligible for Sec 80IB(10) benefits - NO: HC

THE assessee, a builder and developer of real estate, filed e-return declaring income after claiming deduction under section 80IB(10). The total income was declared as Rs. NIL. During the assessment proceedings, it was found that the assessee firm had carried out construction activity on a land without fully utilizing the permissible floor space index (FSI). It was found that the assessee had total plot area of 10539.69 sq. mtrs. for development, after reduction on account of common plot and roads etc. It was further found that the assessee was eligible to construct super build up area of 16863.5 sq. mtrs. @ 1.6 FSI. It was found that the assessee had constructed the housing project by deploying construction of 3665.39 sq.mtrs. of FSI.

The issue before the Bench is - Whether profit relatable to the sale of unutilized FSI is also eligible for Sec 80IB(10) benefits. NO is the High Court's answer.

Customs

If a statutory provision is capable of two interpretations, taking one such interpretation cannot give rise to an error apparent from record even if one is of view that other interpretation is more correct in context - ROM dismissed: CESTAT

AN application for rectification of mistake in the final order was filed by the applicant.

The proceedings started on an unsavoury note. This is because the applicant submitted that although the order was reserved, the same had been issued without pronouncement.

Perhaps aghast at such an occurrence, the Bench directed the Deputy Registrar to look into the matter and fix responsibility of the officials concerned and report the matter within four weeks.

On the ROM application, the applicant submitted that there is a mistake apparent on record in the final order which requires rectification. Inasmuch as it is submitted that in the final order there is a finding that the goods are for industrial consumers and not for retail sale and, therefore, the benefit of Notf. 29/2010-Cus has been denied. The applicant submits that there is no evidence on record that the goods in question are for industrial use; that they are registered under the Legal Metrology Act, 2009.

See our Columns Tomorrow for the judgements