Fwd: TaxGuru.in : Legal & Tax Updates

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From: LEGAL & FINANCIAL UPDATES FROM TAX GURU <info@taxguru.in>
Date: Sun, Feb 27, 2011 at 3:33 PM
Subject: TaxGuru.in : Legal & Tax Updates
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TaxGuru.in : Legal & Tax Updates

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• Amends Notification No. 208/77-Customs, dated the 1st October, 1977
• Fiscal deficit to be lower at 4.8 Per Cent in 2011- Survey
• Reform Agenda – Economic Survey 2010 – 11
• FM Releases Compendium of Innovative and Unique Practices in Customs, Excise and Service Tax
• Services sector may register 9.6 per cent growth
• Infrastructure-A Mixed Bag of Performances – Economic Survey 2010-2011
• Budget 2011- FM to present Budget on Feb 28; Industry and tax-payers hopeful
• Union Budget may not tinker too much with duty rates -CARE
• Economic Survey 2011- Separate disclosure norms for life, general insurance companies
• Govt notifies 35 accounting standards in line with IFRS
• LIC launches Samridhi Plus under Ulip portfolio
• FATF Plenary Appreciates the Strong Commitment Demonstrated by India to The International Drive against Money Laundering and Financing of Terrorism
• FM Says Direct Taxes are Major Resource for Undertaking Development Work
• FM releases compendium of unique practices on indirect taxes
• After receipt of return in response to notice under Section 148, it shall be mandatory for AO to serve a notice on assessee under section 143(2) assigning reason therein.
• A Del Credere Agent is not liable to pay service tax in respect of service rendered by it prior to 16-6-2005
• Only when assessee is able to offer reasonable explanation, based on some evidence, Assessing Officer cannot invoke Part B of Explanation to section 271(1)(c)
• Definition of "export turnover" given in Explanation 2 to section 10A excludes freight and insurance
• India–Netherlands DTAA-Mere provision of a dredger on dry lease for carrying out dredging activity in India does not result in assessee having a PE
• When a company-landlord of premises stands dissolved due to amalgamation, its rights under decree for eviction devolves on amalgamated company
• Powers under section 254(2) cannot be exercised for reviewing a considered and conscious decision on grounds which are inherently subjective and capable of debate and discussion on adoption of one view or the other
• Section 65 of the Finance Act does not talk of a tourist permit issued under Motor Vehicles Act, but it only speaks of user of tourist vehicle by tour operator
• Once commissioner/brokerage is credited in P&L account of assessee broker and entire debit balance including principal and brokerage is found irrecoverable and is written off in books by assessee, same can be allowed as bad debt allowable u/s 36(1)(vii)
• Without rejecting books of account regularly maintained, addition cannot be made only on basis of DVO's report
• Cessation of Liabilities- Liabilities reflected in balance sheet cannot be treated as cessation of liabilities
• Fetter on an executing court to not go behind decree is not placed on a Company Judge assessing a creditor's winding-up petition founded on a decree
• Penal provision of section 271(1)(c) would operate when there is a failure to disclose fully or truly all the particulars of income
• Royalty- Necessary ingredient for treating a payment as royalty is exclusiveness of right of a person over design or invention invented by him
• It is impossible to presume that expression `licence' provided in section 32(l)(ii) is an endless expression and even a tenancy right can be brought under it
• Once capital asset is converted into stock-in-trade provision of section 2(47) becomes irrelevant and does not apply
• Scope of Explanation 2 to Section 147 is such that Assessing Officer is free to re-examine correctness of a regular assessment
• The expression "Tax due" in section 179(1) will not comprehend within its ambit a penalty
• Provisional attachment of property -Section 281B provides for attachment of property of assessee only and of no one else
• Financiers of motor vehicles are not entitled to any deprecation much less higher rate of depreciation on such vehicles
• Once initial burden in terms of section 68 of IT Act, 1961 is discharged by assessee, onus shifts to Department to prove that amount credited in books of accounts represents undisclosed income of assessee
• Indo-UAE Tax Treaty: Aggregation of time spent on different projects can only arise for `connected' projects [2010] 5 taxmann.com 68 (Mum. – ITAT)
• Increase in Interest Rate on EPF
• Eligibility of tufted cotton bathmats/cotton tufted bathrugs covered under ITC (HS) Codes 5703 or 5705 for grant of duty credit scrip under VKGUY/FPS of FTP
• Prohibition on export of onion – Clarification for (a) MEP and (b) Export of Bangalore Rose onions and Krishnapuram onions under export licence
• Certificate Course on Valuation is scheduled to start at Chennai from 19th March, 2011

Amends Notification No. 208/77-Customs, dated the 1st October, 1977 Posted: 26 Feb 2011 11:44 PM PST In the said notification, in paragraph 2, before the Explanation, the following proviso shall be inserted, namely,- "Provided that no drawback shall be allowed if the goods exported were imported into India from third countries and exported to... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Fiscal deficit to be lower at 4.8 Per Cent in 2011- Survey Posted: 26 Feb 2011 11:01 PM PST The Economic Survey on Friday pegged the fiscal deficit for 2010-11 at 4.8 per cent, lower than the Budgetary estimates of 5.5 per cent, on the back of higher realisation from 3G spectrum auction and buoyancy in revenues. India's fiscal deficit had... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Reform Agenda – Economic Survey 2010 – 11 Posted: 26 Feb 2011 10:48 PM PST The following reforms have been suggested by Economic Survey 2010-11 for overall growth of economy. Better convergence of the Schemes to avoid duplications and leakage and to ensure benefits reach to the targeted groups.Private sector... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

FM Releases Compendium of Innovative and Unique Practices in Customs, Excise and Service Tax Posted: 26 Feb 2011 10:43 PM PST On the occasion of Central Excise Day yesterday, the Union Finance Minister Shri Pranab Mukherjee, released "Innovations - The Pursuit of Excellence in Customs, Central Excise & Service Tax", a compendium of unique practices and initiatives... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Services sector may register 9.6 per cent growth Posted: 26 Feb 2011 10:43 PM PST The advance estimates (AE) of the Economic Survey 2010-11 put the growth rate of the services sector at 9.6 per cent. This is despite global deceleration in the sector. The sector had registered 10.1 per cent growth in 2009-10. [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Infrastructure-A Mixed Bag of Performances – Economic Survey 2010-2011 Posted: 26 Feb 2011 10:33 PM PST The Economic Survey 2010-11 states that the infrastructure structure is a mixed bag of performance; some like telecommunications have done exceedingly well and in some others there have been less than targeted achievement. During 2007-08 to 2009-10,... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Budget 2011- FM to present Budget on Feb 28; Industry and tax-payers hopeful Posted: 26 Feb 2011 09:56 PM PST Finance Minister Pranab Mukherjee is set to present his sixth national budget Monday, with people hoping for measures that will help them brave high prices and industry expecting steps that would spur demand and reduce tax burden . [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Union Budget may not tinker too much with duty rates -CARE Posted: 26 Feb 2011 09:51 PM PST No increase in passenger fares and freight rates in the Railway budget presented on Friday, might be seen as an expectation of no significant increase in excise duties in the coming Union Budget on Monday. CARE Ratings on Friday said it expects no... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Economic Survey 2011- Separate disclosure norms for life, general insurance companies Posted: 26 Feb 2011 09:17 PM PST The Economic Survey 2010-11 today said there will be different set of norms for life and non-life insurance companies for coming out with a public float. "It is proposed that the disclosure requirements for life and non-life companies would be... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Govt notifies 35 accounting standards in line with IFRS Posted: 26 Feb 2011 08:53 PM PST The government today notified 35 accounting standards with a view to update Indian accounting norms in line with the global audit practice IFRS. The companies, however, will be given time to adjust to the new accounting standards as government has... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

LIC launches Samridhi Plus under Ulip portfolio Posted: 26 Feb 2011 08:51 PM PST Life Insurance Corporation of India today launched 'Samridhi Plus' under its unit linked portfolio offering insurance protection, safety and growth. Samridhi Plus safeguards policyholders' investment from market fluctuations, LIC said in a statement... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

FATF Plenary Appreciates the Strong Commitment Demonstrated by India to The International Drive against Money Laundering and Financing of Terrorism Posted: 26 Feb 2011 08:45 PM PST FATF Plenary Appreciates the Strong Commitment Demonstrated by India to The International Drive against Money Laundering and Financing of Terrorism; India Takes Over as the Co-Chair of the Asia Pacific Regional Review Group of the FATF. [[ This is a content summary only. Visit www.taxguru.in for full article ]]

FM Says Direct Taxes are Major Resource for Undertaking Development Work Posted: 26 Feb 2011 08:43 PM PST FM Says Direct Taxes are Major Resource for Undertaking Development Work; Releases Coins in Denomination of Rs. 150 and Rs. 5 to Commemorate Completion of 150 Years of Income Tax.Union Finance Minister Shri Pranab Mukherjee said that direct taxes... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

FM releases compendium of unique practices on indirect taxes Posted: 26 Feb 2011 08:41 PM PST The compendium 'Innovations: The Pursuit of Excellence in Customs, Central Excise & Service Tax' consolidates localised practices to facilitate their replication and adoption in various offices across the country for enhance efficiency and... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

After receipt of return in response to notice under Section 148, it shall be mandatory for AO to serve a notice on assessee under section 143(2) assigning reason therein. Posted: 26 Feb 2011 07:44 PM PST In absence of any notice issued under section 143(2) after receipt of fresh return submitted by the assessee in response to notice under Section 148, the entire procedure adopted for escaped assessment, shall not be valid When the Statute provides... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

A Del Credere Agent is not liable to pay service tax in respect of service rendered by it prior to 16-6-2005 Posted: 26 Feb 2011 07:42 PM PST The Deputy Commissioner of Central Excise issued a notice calling upon the respondent-assessee to pay the service tax in respect of the service rendered by it as a Dal Credere Agent. The Deputy Commissioner of Central Excise, Bangalore, passed an... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Only when assessee is able to offer reasonable explanation, based on some evidence, Assessing Officer cannot invoke Part B of Explanation to section 271(1)(c) Posted: 26 Feb 2011 07:40 PM PST Where the assessee is not able to substantiate his claim of expenditure with any evidence, penalty is leviable under section 271(1)(c) [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Definition of "export turnover" given in Explanation 2 to section 10A excludes freight and insurance Posted: 26 Feb 2011 07:33 PM PST Since export turnover has been defined by Parliament and there is a specific exclusion of freight and insurance, the expression "export turnover" cannot have a different meaning when it forms a constituent part of the total turnover for the purposes... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

India–Netherlands DTAA-Mere provision of a dredger on dry lease for carrying out dredging activity in India does not result in assessee having a PE Posted: 26 Feb 2011 07:24 PM PST under the DTAA agreement, the receipt of bare boat rentals i.e. rent for use of or payment for use of equipment is not brought to tax as royalty consequent to the amendment. Thus though under domestic law, the charging section treats the receipts as... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

When a company-landlord of premises stands dissolved due to amalgamation, its rights under decree for eviction devolves on amalgamated company Posted: 26 Feb 2011 07:17 PM PST The business of the erstwhile company will be continued to be carried by the amalgamated company; if the amalgamated company is deprived of the said benefit, it will frustrate the very purpose of amalgamation and defeat the order of amalgamation... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Powers under section 254(2) cannot be exercised for reviewing a considered and conscious decision on grounds which are inherently subjective and capable of debate and discussion on adoption of one view or the other Posted: 26 Feb 2011 07:12 PM PST The powers under section 254 (2) can only be exercised when it is found that there is a mistake in the order of the Tribunal and the mistake is such that no two views are possible on the same. The powers under section 254(2) cannot be exercised for... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Section 65 of the Finance Act does not talk of a tourist permit issued under Motor Vehicles Act, but it only speaks of user of tourist vehicle by tour operator Posted: 26 Feb 2011 07:11 PM PST Merely because the Motor Vehicles Act provides for granting of tourist permit, it would not automatically mean that section 65 of Finance Act, 1994 also contemplates only a tourist permit and not otherwise; if the vehicle is used for providing... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Once commissioner/brokerage is credited in P&L account of assessee broker and entire debit balance including principal and brokerage is found irrecoverable and is written off in books by assessee, same can be allowed as bad debt allowable u/s 36(1)(vii) Posted: 26 Feb 2011 07:09 PM PST Where total debt debited in the account of the client is inclusive of brokerage then brokerage being part of the total debt having been taken into account in computing the income, would satisfy the provisions of sec. 36(2) and therefore, when... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Without rejecting books of account regularly maintained, addition cannot be made only on basis of DVO's report Posted: 26 Feb 2011 07:06 PM PST If books of account are found to be correct and complete in all respect and no defect is pointed out therein and cost of construction of building is recorded therein, then the addition on account of difference in cost of construction cannot be made... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Cessation of Liabilities- Liabilities reflected in balance sheet cannot be treated as cessation of liabilities Posted: 26 Feb 2011 07:04 PM PST Merely because the liabilities are outstanding for last many years, it cannot be inferred that the said liabilities have ceased to exist. [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Fetter on an executing court to not go behind decree is not placed on a Company Judge assessing a creditor's winding-up petition founded on a decree Posted: 26 Feb 2011 07:01 PM PST There is discretion available to the Company Judge in a creditor's winding-up petition, both at the time of admission and at the post-advertisement stage; the Company Court may refuse to admit a winding-up petition founded on an ex parte decree if... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Penal provision of section 271(1)(c) would operate when there is a failure to disclose fully or truly all the particulars of income Posted: 26 Feb 2011 06:59 PM PST When any fact material to the determination of an item as income or material to the correct computation is not filed or that which is filed is not accurate, then the assessee would be liable to penalty under section 271(1)(c). [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Royalty- Necessary ingredient for treating a payment as royalty is exclusiveness of right of a person over design or invention invented by him Posted: 26 Feb 2011 06:58 PM PST Once there is no patent or any intellectual right vested in a person over a thing, no claim of royalty can be allowed to him. [[ This is a content summary only. Visit www.taxguru.in for full article ]]

It is impossible to presume that expression `licence' provided in section 32(l)(ii) is an endless expression and even a tenancy right can be brought under it Posted: 26 Feb 2011 06:53 PM PST The agreement of the assessee to acquire a rented property for running its office cannot be considered as an intangible asset similar to know how, patents, copy rights, trade marks, etc under section 32(1)(ii). [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Once capital asset is converted into stock-in-trade provision of section 2(47) becomes irrelevant and does not apply Posted: 26 Feb 2011 06:52 PM PST The sale/transfer of stock-in-trade cannot be equated with the transfer of capital asset under section 2(47). The meaning of the words "otherwise transferred" in section 45(2), should be according to its ordinary popular and natural sense, and it... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Scope of Explanation 2 to Section 147 is such that Assessing Officer is free to re-examine correctness of a regular assessment Posted: 26 Feb 2011 06:48 PM PST Scope of Explanation 2 to Section 147 is such that Assessing Officer is free to re-examine correctness of a regular assessment and decide whether tax assessed, rate applied, relief and allowances granted, etc., are in terms of provisions of Act and... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

The expression "Tax due" in section 179(1) will not comprehend within its ambit a penalty Posted: 26 Feb 2011 06:45 PM PST Where Parliament has intended to make a specific provision imposing a liability to pay penalty apart from the tax which is due and payable, a specific provision to that effect has been made; the expression "tax due" in section 179(1) cannot... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Provisional attachment of property -Section 281B provides for attachment of property of assessee only and of no one else Posted: 26 Feb 2011 06:42 PM PST A search and seizure under Section 132 of the Income Tax Act, 1961 (hereinafter referred to as an Act) was conducted on 9.5.2003 and 24.5.2003 on the business and the residential premises of respondent no. 5 Purshottam Das Khandelwal who happened to... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Financiers of motor vehicles are not entitled to any deprecation much less higher rate of depreciation on such vehicles Posted: 26 Feb 2011 06:38 PM PST If the financiers have only financed or purchased the vehicle and the borrowers are the registered owners, then the financiers are not entitled to claim any depreciation because they are neither the owners of the vehicle nor have they used the... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Once initial burden in terms of section 68 of IT Act, 1961 is discharged by assessee, onus shifts to Department to prove that amount credited in books of accounts represents undisclosed income of assessee Posted: 26 Feb 2011 06:36 PM PST The onus cast on the assessee stands discharged where the assessee is able to establish the three ingredients of section 68 i.e., (a) the identity of the creditor, (b) the genuineness of the transaction, and (c) creditworthiness of the creditor. [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Indo-UAE Tax Treaty: Aggregation of time spent on different projects can only arise for `connected' projects [2010] 5 taxmann.com 68 (Mum. – ITAT) Posted: 26 Feb 2011 06:34 PM PST The word `connected' is not defined anywhere in the India-UAE Tax Treaty but, contextual meaning of that term would include connection in terms of the nature of work carried out; the connection would not arise only because these are carried out at... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Increase in Interest Rate on EPF Posted: 26 Feb 2011 06:24 PM PST For the financial year 2010-2011, 9.5% rate of interest on EPF has been recommended by the Central Board of Trustees, Employees' Provident Fund [CBT(EPF)] in the 190th meeting held on 15.09.2010 based on the funds available in the interest suspense... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Eligibility of tufted cotton bathmats/cotton tufted bathrugs covered under ITC (HS) Codes 5703 or 5705 for grant of duty credit scrip under VKGUY/FPS of FTP Posted: 26 Feb 2011 06:18 PM PST Trade and Industry has again represented that in respect of some export shipments prior to 12.01.2010, the benefit is being denied because the export product has been described on the shipping bill as "cotton powerloom-tufted bathmats/cotton... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Prohibition on export of onion – Clarification for (a) MEP and (b) Export of Bangalore Rose onions and Krishnapuram onions under export licence Posted: 26 Feb 2011 06:17 PM PST Export of Onions (all varieties including Bangalore Rose onions and Krishnapuram onions) excluding cut, sliced or broken in powder form was prohibited by Notification No.13(RE-2010)/2009-14 of 22.12.2010. This prohibition on exports was relaxed... [[ This is a content summary only. Visit www.taxguru.in for full article ]]

Certificate Course on Valuation is scheduled to start at Chennai from 19th March, 2011 Posted: 25 Feb 2011 09:53 PM PST Certificate Course on Valuation is scheduled to start at Chennai from 19th March , 2011 subject to minimum of 50 participants. Please Register. Form may be downloaded from the link: http://220.227.161.86/13269registration_form_clc.xls [[ This is a content summary only. Visit www.taxguru.in for full article ]]

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Palash Biswas
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