TIOL-DDT 2233
19.11.2013
Tuesday  

EVER since the Government introduced tax on works contract with effect from 01.06.2007, there has been total confusion and abundant litigation on the legality, procedure and what exactly constitute the service and what is excluded. There is neither unanimity in judicial opinion nor clarity in Government views. Harrowed assessees are running helter-skelter with demands running into crores!

If works contract service came into existence from 1.6.2007, was it taxable earlier under construction service or some such service? Is the difference only in providing pure service and service, which also includes sale of goods?

Drinking water projects for the State Governments were not taxed as they were not commercial construction, but with works contract, the Service Tax Department dragged them into the Service Tax net, with approbation from at least one Tribunal Bench.

When abatement is availed, the gross value including the value of goods and materials supplied or used has to be taken into account. Can there be Service Tax on the value of goods sold?

Some of these questions were answered by the Delhi High Court in a massive judgement last week.

The High Court observed,

The new levy imposed by Finance Act 2007 does not indicate or show that works contract relating to "construction of industrial and commercial complexes" or "construction of (residential) complexes" as specified, would be only applicable when the contractor was providing labour or service and was paid for the same and not to composite contracts when the contractor was providing labour/services as well as goods used for construction of industrial and commercial complexes or residential complexes as specified.

In case of a composite contract, the service element should be bifurcated and ascertained and then taxed.

The High Court held:

1. After 46th Amendment to the Constitution, composite contracts can be bifurcated to compute value of the goods sold/supplied in contracts for construction of buildings with labour and material.

2. Computation of service component is a matter of detail and not a matter relating to validity of imposition of service tax.

3. Authorities cannot compel and force an assessee to accept the notifications in question and pay tax accordingly, as seeking coverage under the notification is voluntary. An assessee can state that the service component of a composite contract should be computed in a fair and reasonable manner and accordingly taxed.

The writ petitions were dismissed.

We bring you this judgement today.

Please see Breaking News

Rs. 4417 crores worth Drawback Claims pending with Customs

4,94,562 Drawback claims accounting for a stupendous 4417 crores rupees are pending with the Customs Department as on 17.11.2013. The exporters are likely to raise this issue before the Finance Minister soon. Exporters are virtually out of business with such huge sums locked up with the Customs. There seems to be an unofficial order right from the top to Customs formations to go slow on granting drawback claims due to shortfall in Revenue collections. And this may continue till March 2014.

No Service Tax on Lottery after 1.7.2012 - HC

TAXING Lottery had been a taxing proposition for the government, not always leading to success. The lottery business in India is a big-time lottery for the organisers and ticket sellers with a turnover of over a lakh of Crores a year.

There is said to be a Lottery Mafia in operation in several States and the whole scheme is full of frauds with absolutely no control. Interestingly the small North Eastern states are the origin for many lotteries and most of the tickets are sold deep down South in Kerala. Technology has only added a new dimension to the fraud. While many states have banned lotteries, Internet knows no geographic boundaries and online lotteries are doing brisk business.

Unfortunately governments have been interested only in getting their pound of flesh by taxes, instead of curbing the menace, which is simply an organised way of looting the poor people.

Government's attempts to bring sale of lottery tickets under Service Tax net were not really successful. The Department tried to tax it under ‘business auxiliary service' from 01.07.2003, but that did not find favour with the Courts. Then they amended the Act to include an explanation to the definition of ‘business auxiliary service' , which the Supreme Court held to be valid only prospectively.

By Finance Act 2010, a new heading zzzzn was introduced which included lottery. This was also struck down by a High Court. Come 2012 and lottery fell in the negative list, but the positive officers of the Department were not prepared to accept such negative attitude of the Government and Parliament. Immediately after the negative list regime came into existence, a Superintendent issued a letter to a lottery seller that he was liable to pay Service Tax.

This letter was challenged in the High Court and the High Court has quashed it emphatically holding that transactions in lottery tickets are not liable to service tax under the provisions of the Finance Act, 1994.

The Government is sure to go to the Supreme Court.

We bring you this High Court order today.

Please see Breaking News

Also see:

1. Service Tax and Budget - Will it turn out to be a lottery for Lottery Industry

2. Bangalore DGCEI detects service tax evasion of Rs 2263 Cr; recovers Rs 55 Cr last calendar year

3. Dear FM, please tax 'law' and 'lottery'

Pay Income Tax in advance - RBI

THE Reserve Bank of India has appealed to income tax assessees to remit their income tax dues sufficiently in advance of the due date. It has also stated that assessees can use alternate channels like select branches of agency banks or the facility of online payment of taxes offered by these banks. These will obviate the inconvenience involved in standing in long queues at the Reserve Bank offices.

It is observed that the rush for remitting Income Tax dues through the Reserve Bank of India has been far too heavy towards the end of March every year and it becomes difficult for the Reserve Bank to cope with the pressure of issuing receipts although additional counters to the maximum extent possible are provided for the purpose.

Twenty-nine agency banks are authorised to accept payments of Income Tax dues. These are:

RBI Press Release: 2013-2014/1005, Dated: November 18, 2013

Service Tax - Repeated issue of demand-cum-show cause notice for same period leads to inconvenience and in some cases harassment of assesse HC

IN a recent case, the Delhi High Court observed, "Repeated issue of demand-cum-show cause notice for the same period, leads to inconvenience and in some cases harassment of assessee as for the same period they have to engage professionals and furnish accounts, documents etc. all over again. It also duplicates the work of the officers. The CBEC will examine the said aspect. If required and necessary, appropriate directions or orders may be issued to ensure that repeated show cause notices are only issued when circumstances justify and are permitted under the law".

Will the CBEC take action?

Please see 2013-TIOL-907-HC-DEL-ST

Jurisprudentiol - Wednesday's cases

Service Tax

CENVAT - Rules 4A, 4(2) of STR, 1994 - Rule 9 of CCR, 2004 -objection raised for denial of credit is that information is not in one page but several pages - Appeal allowed: CESTAT

THE appellant rendered ‘Business Auxiliary Service' to M/s. HDFC Bank Ltd. For rendering of the service, the appellant occupied part of the premises of their client from where services were rendered.

M/s. HDFC Bank, the client, charged the appellant rentals for the area occupied by the appellant on a monthly basis. At the end of the month, HDFC Bank raised debit notes on the appellant at the appellant's registered office at Chandivli, Mumbai. The said debit notes contained an annexure wherein details of the service rendered, monthly licence fees charged and the service tax amounts were indicated. The appellant availed CENVAT credit of the service tax paid on the monthly rentals charged on them by M/s. HDFC Bank Ltd. by treating the same as ‘input service'.

The department was of the view that the appellant was not eligible for the CENVAT credit on two grounds. Firstly, the debit notes containing the annexure is not a ‘prescribed document' for availing CENVAT credit. Secondly, the individual premises for which rentals were charged and from where the services were provided, were not registered by the appellant..

Income Tax

Whether when assessee makes capital gains on sale of property, there is any bar u/s 158BB(4) to claim deduction of carried forward losses pertaining to house property - NO: HC

THE assessee and his wife were partners of a firm known as M/s.Century Complex at Manjeri. There was a search of the premises of the appellant. The firm had filed its returns of income for the assessment years 1993-94 to 1995-96. The assessee sought for settling the tax pertaining to the block period before the Settlement Commission, that was, block period ending with 01.02.1996. The Settlement Commission, while considering income of the house property and the capital gains on sale of Century Complex at Manjeri, had taken into account the sale price apart from brokerage as well as index cost of land appearing in the document. Ultimately the long term capital gains was arrived at Rs. 22,54,446/-. The applicant had sought reduction of losses under two categories under the head of house property - loss from the house property carried forward amounting to Rs. 5,15,389/- and interest paid on borrowings for previous years that was Rs. 8,20,028/-.

THE issue before the Bench is - Whether when the assessee makes capital gains on sale of property, there is any bar u/s 158BB(4) to claim deduction of carried forward losses pertaining to house property. And the answer goes in favour of the assessee.

Customs

Writ Petition against validity of Notification No 127/99 Cus fails - Madras High Court upholds validity of Notification issued under Section 8A(1) of Customs Tariff Act, 1975 - Expression "Free" mentioned in Customs Tariff to be interpreted as "Nil rate" or "Zero rate".

VIDE Notification No 127/99 Cus dated 01.12.1999, issued under Section 8A(1) of the Customs Tariff Act, 1975, Government had imposed 50% duty on goods falling under sub-heading Nos. 1001.10 and 1001.90 in view of the slow off take of wheat from the Central Pool. Section 8A(1) empowers the Government to increase the import duties by amending the First Schedule if the circumstances exist which render it necessary to take immediate action.

It is the contention of the Petitioner that that the Notification is ultra-vires Section 8A of the Customs Tariff Act, 1975.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a Nice Day.

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