TIOL-DDT 2141
04.07.2013
Thursday

CADRE Review activities are on a brisk pace in CBDT. The DG, HRD in the CBDT has written a detailed letter on the scheme of cadre review, salient features of which are.

1. Number of assessment units (AUs) to be increased by 1080 from 3420 to 4500, for strengthening the tax-administration.

2. Expected net additional revenue of Rs. 25,756.04 crores per annum against expenditure of Rs. 449.71 crores per annum.

3. Each Range to have one more Assessing Officer.

4. Increase in the number of Administrative CsIT deployed on assessment related functions to increase from 228 to 250

5. 114 Special Ranges to be created, with adequate supporting manpower.

6. Upgradation of all existing 116 posts of Chief Commissioners in HAG+ and Apex scales along with an increase of their number by 1 post.

7. Strengthening the Appellate/Advocacy Structure by increasing the number of CIT Appeals and providing them supporting manpower. Advocacy structure in the ITAT to be strengthened.

They have formed 7 Sub committees to work on the following areas:

1. Jurisdiction and Deployment of Posts.

2. DPC

3. Restructuring of Directorates

4. Recruitment of Group B&C Cadres and Training Needs

5. IRS Recruitment Rules

6. Recruitment Rules for Group B&C Cadres

7. Infrastructure Requirements

Poor CBEC cadre review is still doing the rounds in the Ministries.

DGIT (HRD) D.O F. No.HRD/CM/102/3/2009-10/(Pt)/1102, Dated: July 02, 2013

FTP - Duty free re-import of diamonds

GOVERNMENT has amended Para 4A.2.1 and Para 4A.2.2 of FTP to allow reduction in size of diamond from ‘0.25 carat and above' to ‘0.10 carat and above' for certification by authorised laboratories in India and abroad (and re-import duty free in case of export after certification).

Cut & polished diamonds of 0.10 carat or above can now be exported and thereafter re-imported duty free after certification by authorised laboratories. Earlier this was allowed for diamonds of size 0.25 carat and above only.

DGFT Notification No. 25 (RE-2013)/ 2009-2014, Dated: July 03, 2013

FTP - SCOMET Entries amended

GOVERNMENT has amended the list of specified goods, services and technologies, i.e. Special Chemicals, Organisms, Materials, Equipment and Technologies (SCOMET) that was notified vide Notification No.37 (RE-2012) /2009-2014 dated 14th March, 2013.

DGFT Notification No. 26 (RE-2013)/ 2009-2014, Dated: July 03, 2013

Non-requirement of RCs for export of non-basmati rice and wheat

VIDE Trade Notice No. 3/2013 dated 28.05.2013 it was informed that the online applications for obtaining Registration Certificates (RCs) for export of various commodities like cotton, cotton yarn, non-basmati rice, wheat and sugar would be mandatory from 1 st July, 2013.

It has come to the notice of DGFT that RCs are being insisted in case of all exports of non-basmati rice & wheat irrespective of the destination of export.

Therefore, the DGFT clarifies that there is no change in the policy for export of non-basmati rice & wheat and the Registration Certificate is required for non-basmati rice & wheat only when it is exported to Bangladesh & Nepal through non-EDI Land Custom Stations (LCS).

DGFT Trade Notice No. 4/2013, Dated: July 02, 2013

IAS vs IRS - Issuance of warrant of authorization and consequent search and seizure proceedings quashed - No arbitrary authority for revenue officers: HC

YESTERDAY'S DDT reported the story of an IAS officer being raided by the Income Tax Officers because he displeased a top IT officer who was trying to get a State Government Bungalow. Today we bring you the High Court order quashing the warrant and the consequent search and seizure proceedings.

The High Court noted that the Supreme Court had in the Seth Brothers case held that section 132 of the Act does not confer any arbitrary authority upon the revenue officers. The Commissioner or the Director of Inspection must have, in consequence of information, reason to believe that the statutory conditions for the exercise of the power to order search exist. He must record reasons for the belief. Since by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must have been exercised strictly in accordance with the law or only for the purposes for which the law authorizes it to be exercised. If the action of the officer issuing the authorization or of the designated officer is challenged, the officer concerned must satisfy the court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the Court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed.

High Court found that the entire action which was initiated and taken was based without sufficient ground or material and it appears that because of dispute in respect of allotment of house, the respondents issued the warrant and search was conducted.

Please see 2013-TIOL-520-HC-MP-IT

Customs/Excise/Service Tax - Writing Off of Arrears

CBEC had by Circular No. 946/07/2011 dated 01.06.2011 instructed about the constitution of Committees for writing off of arrears for Customs and Central Excise cases. By a Notification dated 14.12.2012, the President had amended the Delegation of Financial Power Rules, 1978. With this amendment, the authorities competent to write-off the arrears of Central Excise and the Commissioner of Service Tax are also delegated powers to write-off the arrears of Service Tax. Consequently, the constitution of the Committees for examining the proposals for write-off of irrecoverable arrears and recommending deserving cases to the authority competent to order such write-off, also requires modification.

So, the Board has amended the Circular to empower the Committees to write off Service Tax arrears also.

Please also see DDT 1631 - 16.06.2011

CBEC Circular No.971/5 /2013, Dated: May 29, 2013

Service Tax - an Introduction

IN a landmark judgement, the Madras High Court while upholding the Service Tax on Film distribution, remarked,

Service Tax is an indirect tax levied on certain services provided by certain categories of persons including companies, associations, firms, body of individuals etc. Services constitute heterogeneous spectrum of economic activities, covers wide range of activities, such as management, banking, insurance, hospitality, consultancy, communication, administration, entertainment, research and developmental activities forming part of retailing sector. Economists hold the view that there is no distinction between the consumption of goods and consumption of services as both satisfy the human needs. (See ALL INDIA FEDERATION OF TAX PRACTITIONERS AND OTHERS v. UNION OF INDIA AND OTHERS, (2007-TIOL-149-SC-ST).

During 1994-95, a new concept of Service Tax was introduced by imposing tax on services of Telephones, General Insurance and Stock Broking and the list has increased since then. Chapter V of the Finance Act, 1994 defines "assessee" to mean the person responsible for collecting the service tax. The Service Tax was defined to mean tax chargeable under Chapter V. Taxable Service was defined to mean any service provided by stock brokers to an investor in connection with sale or purchase of securities listed by a recognised stock exchange; services rendered by the subscriber of the telegraph authority and services rendered by insurer to a policy holder. Section 66 stated that Service Tax shall be levied at the rate of 5% of the value of the taxable services provided to any person by service provider who was responsible for collecting the service tax.

Finance Act, 1998, was also to the same effect as that of the 1994 Act and in the 1998 Act, the list of notified services were increased to include advertising agencies, travel agencies, architects, entrepreneurs, clearing and forwarding agencies, credit rating agencies, customs house agents, practicing charted accountants, cost accountants, real estate agents, security agencies etc. The Finance Act has been amended year after year in order to bring more services into the tax net, as well as to insert certain new provision found necessary.

The legislative competence of the Parliament to levy service tax on Kalyana Mandapam, on use of goods transport services, chartered Accountants and leasing and financial services, under Entry 97 of List I under various amendments have been upheld by the Hon'ble Supreme Court in various decisions (Vide Tamil Nadu Kalyana Mandapam Association Vs. Union of India and others, (2004-TIOL-36-SC-ST); Association of Leasing and Financial Services companies vs. Union of India and others, (2010-TIOL-87-SC-ST-LB), All India Federation of Tax Practitioners and another Vs. Union of India and others, (2007-TIOL-149-SC-ST), Gujarat Ambuja Cements Ltd. And another Vs. Union of India, (2005-TIOL-53-SC-ST) and BSNL Vs. Union of India, (2006-TIOL-15-SC-CT-LB).

We will bring you the judgement tomorrow.

Subsidies are negative taxation and there cannot be a positive tax on same under ST: CESTAT

IN this case, the Commissioner (Appeals) held that buffer stock subsidy received by the respondent sugar factories are not liable to service tax under the category of storage and warehousing services.

Aggrieved, Revenue is before the CESTAT and submits that the subsidy has been granted to the respondents by the Government for the expenses incurred towards storage of the goods and, therefore, it is a consideration for the services rendered.

The respondents were probably collecting their subsidies and so did not appear.

The Bench noted that the issue has been settled by the Punjab & High Court decision in the case of CCE, Chandigarh vs. Nahar Industrial Enterprises Ltd. 2010-TIOL-547-HC-P&H-ST wherein it was held that buffer-stock subsidy cannot be considered as a consideration received for the services rendered and, therefore, service tax would not be leviable on such activity; that the sugar factories are storing the sugar for themselves and, therefore, there cannot be any service to self.

The CESTAT further added - “Even otherwise, subsidies are negative taxation and there cannot be a positive tax on the same under service tax.”

Holding that there is no merit in the appeals of the Revenue, the same were dismissed.

See 2013-TIOL-1012-CESTAT-MUM

Kerala High Court Quashes ST on Restaurants

WE hear that the Kerala High Court has quashed the Service Tax on restaurants as beyond the legislative competence of Parliament. We will bring you the judgement as soon as possible.

Jurisprudentiol - Friday's cases

Service Tax

Temporary transfer of copyright - Section 65(105)(zzzzt) - taxability on film distribution - Service Tax on Films Upheld: HC

CONTENDING that the levy of service tax on transfer of copyright, which is goods, is transfer of right to use the goods amounting to sale and no service element is involved and that temporary transfer of copyright is not exigible to service tax, writ petitions are filed challenging the vires of Section 65(105)(zzzzt) and to declare that the provisions of Section 65(105)(zzzzt) is beyond the legislative competence of the Union of India.

Income Tax

Whether interest received for delayed payment from customers can be said to have direct nexus with sales of Undertaking, and hence would be eligible for deduction u/s 80IA - YES: ITAT

THE issues before the Bench are - Whether the interest received by the assessee from delayed payment from customers can be said to have direct nexus with such sale and hence would be eligible for deduction u/s 80IA; Whether the provision of leave encashment is ascertained liability and therefore, need not to be added back to the book profits u/s 115JB of the Act; Whether interest on FDRs could not be said to have been derived from eligible business, and therefore, the assessee is not entitled to deduction u/s 80IA of the Act in respect of such interest and Whether scrap generated out of stores and from repair of plant cannot be said to have been generated during the process of manufacture for the purpose of deduction u/s 80IA. And the verdict partly goes in favour of the Revenue.

Customs

Whether to qualify as 'other alloy steel' not only one element is essential in proportion prescribed but if there are more than one elements (in addition to steel) all should be in proportion prescribed in Chapter 1(f) of Chapter 72, are essential - Difference of opinion - Matter referred to President: CESTAT

BASED on information that the appellants were claiming the benefit of Notification No.21/2002-Cus, Sr.No.190 C wrongly on import of steel coils by mis-declaring the same as non-alloy steel, S.I.I.B (Import), New Customs House, Mumbai undertook investigation and took over 11 live Bills of Entry and carried out a detailed scrutiny. The percentage content of other metals shown in the Mill test certificates were compared with chapter note (f) of Chapter 72, where Other Alloy steel is defined. In all the 11 Bills of Entry, the percentage of Manganese was found to be more than 1.65%, and the Titanium was more than 0.05% and on the examination of Mill test Certificates of these Bills of Entry also confirmed that goods imported vide the above Bill of Entry were alloy steel and the benefit claimed under notification No.21/2002 Sr. No. 190C thus was not correct.

See our Columns Friday for the judgements

Until Friday with more DDT

Have a nice day.

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