Jurisprudentiol– Monday's cases
Central Excise
Notice issued under Section 11A cannot be presumed to invoke extended period – SCN has to spell out nature of suppression or mis -representation on part of the appellant– Tribunal allows appeal on ground of limitation
Without going into the merits of the case, the Bench observed that the S C decision in Kaur & Singh cited by the appellant clearly applied to the facts of the case and hence the notice was time barred. As for the specificity of not invoking the proviso to section 11A and the presumption factor taken by the DR, the Bench noted that the show cause notice has to spell out the nature of suppression or mis -representation on the part of the appellant so as to give an opportunity to the noticee to meet the same and since there was no such allegation either in the notice or the order of C ommissioner (A), the demand was clearly hit by limitation.
Customs
COFEPOSA - Indolence on the part of the authorities has vitiated the Detention order on the ground of unexplained delay even if it is presumed that the detenue was absconding: Bombay High Court
The High C ourt did not agree with the submissions made by the APP that the detenue is taking benefits of his own wrongs in challenging the detention order on the ground of delay caused in its execution. On the contrary, the record shows that the detaining authority as well as the sponsoring authority failed to take timely steps for execution of the order, including the order to be passed under Section 7(1 )( b) of the Act. The casual and non serious attitude of the detaining as well as the sponsoring authority in executing the detention order is writ large.
Income Tax
Revenue earned by non-resident from services related to processing of data for oil exploration– Business profits from such services in terms of section 44BB (1) not taxable in India; not taxable even under Indo-Australia DTAA in absence of PE in India –Tribunal
Payment received by non-resident company for technical guidance and training of client's personnel for usage of the assessee's proprietary software tools– Provisions of section 115A read with section 44D not applicable - Consideration for such services will not be treated as fees for technical services for the purpose of Explanation 2 to section 9(1 )( vii) of the Act but income chargeable to tax under section 44BB– Board Circular No. 1862 dated 22.10.1990 relied– Revenue's appeal dismissed.