Jurisprudentiol-Tuesday's cases
Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise
Goods supplied to 100% EOUs on payment of Central Excise duty - Supplier unit entitled for refund of terminal excise duty notwithstanding contrary clarification by Policy Interpretation Committee: HC
GOODS supplied to 100% EOUs - Refund of terminal excise duty rejected based on clarification by the Policy Interpretation Committee that the supplies to EOUs are exempted from payment of Central Excise duty - In an identical set of facts, the Division Bench of the Delhi High Court in Kandoi Metal Powders Manufacturing Company Private Limited V. Union of India and others reported in took a decision in favour of the manufacturer - The said case arose out of a decision taken pursuant to the resolution dated 04.12.2012 which is impugned in this writ petition. Therefore, the cause of action in the case before the Delhi High Court was the impugned resolution. Impugned order is quashed and the third respondent (JDGFT)is directed to process the refund claim in accordance with the 2009 Policy by taking into consideration the petitioner's refund application dated 16.08.2010 and pass appropriate orders in accordance with law, within a period of three months.
Income Tax
Income Tax - Partnership firm of wife and husband acquired property in Mumbai and Khetwadi but they could not develop same and, therefore, sold it - conclusion reached by lower appellate authorities that the income is to be treated as Long Term Capital Gain instead of business income is proper - Revenue appeal dismissed: HC
THE Assessing Officer held that the partnership firm of husband and wife was constituted for the purpose of doing business as Builder & Developer. If the Assessee was only investing in the property, then, there was no occasion to set up such a partnership firm and if in the meanwhile and upon setting it up it was discovered that it was not viable, steps should have been taken to amend the partnership deed and particularly with regard to scope of the partnership business. In addition to this, when this property at Khetwadi, Mumbai was acquired in 1997, the Assessee made several applications seeking clearances and permissions from the Government Authorities so as to develop and construct upon the property, this would run counter and rather negate the position that the property was held as investment.
Service Tax
Rejection of refund of service tax paid on non-taxable service - Writ Petition allowed with strictures on Department - On account of irresponsible behaviour of officers, entire Department gets bad reputation: HC
THE issue relates to rejection of refund of service tax paid by RITES, a Government of India Undertaking. The Petitioner undertook the activity of laying of optical fiber cables to BSNL and paid service tax. Later, on realizing that the activity did not attract service tax at the material time, filed a claim for refund of service tax paid. The original authority rejected the refund claim. On appeal, the Commissioner (Appeals) allowed the claim for the period falling within one year subject to verification of unjust enrichment. The original authority did not even grant refund sanctioned by the Commissioner (Appeals). The assessee is before the High Court.
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