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Month: September 2008

Archive for September, 2008

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COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 15, 2008 (Date of publication)
AY:
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CITATION:

Where the Tribunal had dismissed the appeal filed by the assessee by holding that it was not entitled to exemption u/s 11 and subsequently, on an application filed by the assessee u/s 254(2), recalled the said order on the ground that it had not considered a judgement of the jurisdictional High Court and that there was a mistake apparent from the record and the question arose whether such recall was justified, HELD, upholding the order of the Tribunal:

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Posted on by editor
COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 15, 2008 (Date of publication)
AY:
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CITATION:

Where the record did not show that the assessee had been served with a notice under section 143(2) before the due date HELD that the assessment proceedings were not valid as the non-service of the notice was a jurisdictional defect and not merely a procedural defect. Held also that s. 292BB was procedural and prospective.

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COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 13, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee, a Korean company, had entered into two contracts, one for on-shore execution of a fiber optic system and the other for offshore supply and services and it had a project office in India and the question arose whether any part of the profits from offshore supply was taxable in India, HELD:

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Posted on by editor
COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 13, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee is carrying on an illegal activity which is treated as a business, any loss arising in such business as a result of confiscation by the authorities is an allowable loss. However, where the assessee is carrying on a lawful business, any loss arising as a result of infraction of the law is not allowable.

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Posted on by editor
COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 12, 2008 (Date of publication)
AY:
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CITATION:

Where the assessee, a resident of Singapore, received consideration from Indian customers for grading and certification reports of diamonds and the AO took the view in s. 197 proceedings that the income was taxable as “royalty” on the ground that there was transfer of commercial experience in the shape of the diamond grading report

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COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 10, 2008 (Date of publication)
AY:
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CITATION:

Where in respect of the asst. year 1990-91, the assessee claimed deduction under section 80-HHC on traded goods on the proportion that the export turnover bore to the total turnover even though there were no profits from the export activity and the High Court held, relying on IPCA Laboratories vs. CIT 266 ITR 521 (SC), that in the absence of export profits deduction u/s 80-HHC was not available, HELD, reversing the judgement of the High Court that in accordance with the CBDT Circular issued under the then prevailing s. 80-HHC, deduction was allowable on the proportionate basis notwithstanding the absence of profits from the export activity and the judgement in IPCA Laboratories had no application.

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Posted on by editor
COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 10, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

For purposes of Article 20 of the India-Korea DTAA, a Government undertaking with corporate status cannot be equated to the Government. Even if the Articles of Incorporation make it clear that the Government has pervasive control over the undertaking, it still cannot be treated to be a wing or an integral part of the Government. However, the fundamental requirement of Article 20(1)(a) is that the remuneration should be paid by the Contracting State. Even if it is paid out of funds allocated by the Government to the undertaking specifically towards personnel expenses, the requirement of Article 20(1) is satisfied. It is as good as payment by the State itself. The expression “payment by a Contracting State” cannot be given a rigid or literal interpretation so as to cover the payments made directly by Government or a department of the Government. Even if the payment is made out of State’s funds set apart for that purpose, the requirement of Section 20(1)(a) will be attracted and the Indian income-tax cannot be levied in such a case.

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COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 8, 2008 (Date of publication)
AY:
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CITATION:

As s. 35-G of the Central Excise Act (and s. 130 of the Customs Act) provides that an appeal to the High Court shall be filed within 180 days of the receipt of the order appealed against and there is no provision for condonation of delay the court has no power to condone delay;

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COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 4, 2008 (Date of publication)
AY:
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CITATION:

Where the assessee transferred its undertaking under a scheme of demerger which provided that neither the assessee nor its shareholders would receive any consideration from the transferee company as the value of the liabilities taken over were more than the value of the assets taken over and the assessee treated the difference between the said liabilities and assets as a capital reserve and the question arose whether such difference was assessable to tax, Held:

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Posted on by editor
COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: September 4, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee had entered into a production sharing contract with a consortium which was governed by section 42 of the Act and the assessee made contribution at a certain rate to the consortium whereas the expenditure incurred out of the said contribution stood converted on the basis of a different exchaneg rate which exercise resulted into a loss on conversion of foreign currency to the assessee and the AO held the loss to be a notional loss, Held,

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