Jurisprudentiol– Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Advertisement expenditure incurred by a customer can be added to the sale price only if the manufacturer has an enforceable legal right against the customer to insist on such advertisement expenses - CESTAT

It appears that these advertisements cannot be held to have been carried out by the buyers on behalf of the manufacturer; that the assessee has no enforceable legal right to insist on incurring such advertisement expenditure. The contention of the Department that there is no option available to the dealers does not stand proved. The stand of the department that the failure on the part of the dealer may lead to the cancellation of dealership and therefore there is an enforceable legal right is acceptable. Such cancellation cannot enable recovery of dealer's share of cost of advertisements.

Income Tax

All receipts of assessee are to be taken into account for working out presumptive income u/s 44BB - if place of business is available to assessee for period in which its independent work can be completed, it shall constitute a PE: ITAT

It is clear from the perusal of section 44BB that all amounts either paid or payable (whether in India or outside India) or received or deemed to be received (whether in India or outside India) are mutually inclusive, and includible in the receipts mentioned in sub-section (2) of section if 44BB. Thus, there is a clear authority of the jurisdictional High Court that all amounts mentioned in sub-section (2) are to be included for the purpose of calculating deemed income on the basis of receipts. There is no doubt that the assessee has received the amount and, thus, the same is includible in the receipts for working out the presumptive income.

Customs

Claim of benefit of exemption Notification without challenging assessment order – Refund claims for excess duty paid not maintainable if original assessment is not challenged – SC decision in Priya Blue Industries and Larger Bench decision in Eurotex Industries followed : CESTAT

Now what if the importer is eligible for exemption from any or all of the Customs duties or concessional rate of duty under any Notification and it is not mentioned in the bill of entry, and later attempts to seek a refund of the excess duty paid by him. Will the Customs authorities allow refund of such excess duty? What do you think; you can get such excess duty back without any resistance from the Department? Dear Importer, as far as payments goes it is only one way traffic into the Government coffers and not two way as we are commonly made to believe by pretentious senior officers and the Finance Minister. The claims are blocked with technicalities and your money will never come back to you.

See our columns Monday for the judgements