Jurisprudentiol-Monday's cases

By Vijay Kumar

SERVICE TAX

Telecom Towers - Management & Maintenance or repair service - Cost of diesel filled in generators is prima facie not includible in gross value as diesel is not required for providing such service but diesel consumption is required for generating electricity - Pre-deposit waived & stay granted: CESTAT

THE appellants are engaged in providing service of maintenance and repair of telecom towers of various telecom companies like M/s. Bharati Infratel Ltd. classifiable under ‘Management and Maintenance or repair service'. The appellant had paid service tax under the said service but they had not included the value of diesel which they had been filling in the generators.

The Department wants the value of diesel so filled to be included in the AV for the purpose of payment of service tax and so this mighty demand tall as the telecom tower.

Income Tax

Whether Sec 54E benefit is available even if assessee invests or deposits whole or part of net consideration in specified asset within six months from date of consideration received - NO: HC

THE assessee, an individual, had sold two plots of land for Rs.8,98,775/-. The original assessment made u/s 143(3) was set aside by the CIT(A) and the AO was directed to make fresh assessment. Thereafter, the AO completed the fresh assessment and passed an order. In the fresh assessment, the assessee claimed deduction u/s 54E on the basis of investment of Rs.1,89,400/- made in NRDB on 20th February, 1987, within six months of the receipt of final instalment. However, the AO, rejected the claim of the assessee. On appeal, CIT(A) dismissed the said appeal. On further appeal, Tribunal had also dismissed the appeal of assessee.

The issue before the Bench is - Whether the benefit of Section 54E is available where the assessee has invested or deposited the whole or any part of net consideration in any specified asset within six months from the date of consideration received. NO is the answer.

Central Excise

When two exemption Notifications are available to an assessee, he can always opt for one which is most beneficial for him and in this regard Department can not force assessee to avail particular exemption Notification: CESTAT

THE Department had a twisted view. It was of the opinion that the appellant assessee ought not to have cleared the goods for export on payment of duty as they were entitled for the nil rate of duty in terms of notification 30/2004-CE since they had not taken any credit on inputs and, therefore, what was paid on their own volition was "deposit" and not duty. Inasmuch as since the goods were exempted, the appellant could not have availed credit of duty paid on capital goods in view of rule 6(4) of the CCR, 2004 as by the department logic they had been exclusively used in manufacture of "exempted goods".

See our Columns Monday for the judgements