Thursday, August 14, 2014

[aaykarbhavan] Judgments and Information , C A Next step, Tax Updates, [5 Attachments]




Does DTAA Overrides Service Tax in India?

 Import of Service
The Import of Service means that the Service which is being provided by a Service Provider who is located in Non-Taxable territory and the service recipient is located in taxable territory. In such circumstances, the Service Receiver is liable to pay service tax as per Sr. No. 10 of Notification 30/2012-ST dated 20-06-2012 subject to the exemptions granted under Item No. 34 of Notification No. 25/2012-ST dated 20-06-2012.
A question which brings many minds to dilemma is that whether the Indian Government can impose tax on matters of extra territorial jurisdiction. In this regard, it is pertinent to note that Article 245(2) of the Indian Constitution states that
"No law made by Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation."
It is worthwhile to note that the law should have territorial nexus with India without which the said Act shall be ultra vires as the matter is no longer res integra and the same has been decided in case of Electronics Corporation of India v. CIT [(1989) 183 ITR 43 (SC)].
Application of DTAA on Service tax
There is a general perception that DTAA is applied only to Income Tax Act, 1961 but this notion is not good in all cases. The DTAA can also be applied to Service Tax. In this connection, we must note the meaning of income. In common parlance, income refers to both gross receipts and net receipts. And it must be noted that DTAA applies to gross receipts in many cases such as Article 12 of DTAA is on 'gross amount of royalty and fees for technical services', Article 10 is on 'gross dividend'.
In view of the afore-said, it can be said that some of the agreements entered by India with other countries are not specifically for income tax but also on similar taxes. For instance, Article II of DTAA with Australia Notified vide GSR 60(E), dated 22-1-1992 states that
"This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of the Republic of India after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies."
Hence, imposing service tax on gross receipts of royalties, technical services, etc. is taxing the same indirectly which cannot be taxed directly (Quando aliquid prohibetur ex directo, prohibetur et per obliquum). In this regard, it can be noted that Hon'ble Supreme Court in case of Jagir Singh vs. Ranbir Singh [1979 SCC (1) 560] held that
"In order to cross the hurdle imposed by Section 397(3) it was suggested that the revision application before the High Court could be treated as an application directed against the order of the Sessions Judge instead or an one directed against the order of the Magistrate We do not think that it is permissible to do so. What may not be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a "well-known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C.J. in Fox v. Bishop of Chester(1) "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th edition, page 109). When the Sessions Judge refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Session Judge's order."
Hence, if we appoint any lawyer for handling a case in Australia then it would not be taxable in India because of the application of make available clause. Hence, in our view no service tax should be levied on the recipient of such service as the DTAA overrides the domestic laws.
Disclaimer: This article is the property of the author. No one shall publish, reproduce or use it in any manner, for commercial purposes, without the permission of the author. The author shall not be responsible or liable for anything done or omitted to be done on the basis of this article.
                                                                             -   By Aditya Singhania & Nischal
- See more at: http://taxguru.in/service-tax/dtaa-overrides-service-tax-india.html#sthash.01gy6Mw9.dpuf

Arrests of service provider for failing to remit Service Tax

 OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX 7th FLOOR, TRADE CENTRE, BUNTS HOSTEL ROAD, MANGALORE-3.
C.No. PV/06/90/2013-14 SPV Cell       Dated: 11.08.2014
PRESS NOTE
MANGALORE SERVICE TAX ARRESTS A KARWAR BASED SERVICE PROVIDER FOR FAILING TO REMIT THE SERVICE TAX COLLECTED TO THE EXCHEQUER
Officers of the Commissionerate of Central Excise and Service Tax, Mangalore arrested the Managing Director of a private limited company providing storage and warehousing services at Karwar, for collecting the Service Tax of over Rs.60 lakhs from August 2011 to March 2014 and not remitting the same to the Government account. As on date, over Rs.51 Lakhs Service Tax collected is retained by them for more than six months without remitting to the Exchequer. The service provider based in another state having business at Karwar has been evading appearance before the investigating officers for several months. He appeared for the investigation only after a petition was filed before the Hon'ble Court for issuance of a non-bailable warrant to secure his presence.
2. During the verification of the documents of the service provider, the officers found that the service provider has failed to remit the Service Tax collected to the Government account. The detailed investigation initiated in the matter prima facie revealed that the service provider has been evading payment of appropriate Service Tax for over three years. The investigation has unearthed that despite providing taxable services since August, 2011, the service provider has failed to obtain the Registration Certificate till February, 2013 i.e., the delay of about 16 months. It has also been revealed that the service provider was not even complying with the basic statutory requirements like filing of returns intimating the taxable services provided, discharging appropriate Service Tax liability, remitting the Service Tax collected to the Government account etc. thereby contravening the provisions of the Finance Act, 1994 and the Rules framed thereunder.
  1. As per Section 89(1)(d) read with Section 89(1)(ii) of the Finance Act, 1994 whoever collects Service Tax in excess of Rs.50 lakhs but fails to credit the same to the Government account within a period of 6 months from the day on which such payment becomes due, is liable for imprisonment for a term which may extend to 7 years. Such offences shall be cognizable as per Section 90 of the Act.
  2. The service provider was therefore, arrested today i.e. on August 11, 2014 under Section 91 of the Finance Act, 1994 and produced before the Hon'ble Principal Civil Judge Senior Division and Chief Judicial Magistrate, Mangalore who remanded him to judicial custody. Further investigation is under progress.
5. The Commissionerate has initiated several measures to facilitate genuine trade to improve service tax compliance in the jurisdiction. Simultaneously, concerted efforts are being taken to create a data base of habitually non-compliant trade on the basis of inputs generated and received from other Departments so as to take appropriate action as per the legal provisions.
(Dr. M. SUBRAMANYAM) COMMISSIONER
- See more at: http://taxguru.in/service-tax/arrests-service-provider-failing-remit-service-tax.html#sthash.apG16vVb.dpuf
CPC (TDS) asks Govt. Deductors to quote AIN details in TDS StatementsC
As per the records of the Centralized Processing Cell (TDS), it has been observed that the Accounts Office Identification Number (AIN) has not been mentioned in the TDS statements submitted by you.
What is AIN and its relevance :
  • AIN is a unique seven digit number allotted by NSDL, to the Pay and Accounts Office (PAO), District Treasury Office (DTO) or Cheque Drawing and Disbursing Office (CDDO). It is mandatory for the PAO / CDDO / DTO to have an AIN.
Why is AIN important to be quoted in TDS Statement:
  • Quoting of AIN in TDS Statement facilitates complete reporting and results into correct mapping of the TAN with the AIN.
  • The AIN details in Form 24G, filed by the PAO / CDDO / DTO forms part of G-OLTAS database. CPC (TDS) processes TDS statements on the basis of information contained in G-OLTAS.
In view of the above, you are requested to provide AIN details in point 2(b) of the Forms 24Q and 26Q of the TDS Statements.
Source- Communication from CPC (TDS)
- See more at: http://taxguru.in/income-tax/cpc-tds-asks-govt-deductors-quote-ain-details-tds-statements.html#sthash.RpiIMIa5.dpuf

Login to Income Tax E-filing Account from your Bank Account

Income Tax Department is happy to announce the facility of Direct Login from Corporation Bank, Union Bank of India and Oriental Bank of Commerce – Net banking account to the taxpayer's E-filing Account. Other banks are expected to follow.
- See more at: http://taxguru.in/income-tax/login-income-tax-efiling-account-bank-account.html#sthash.qmUFEOTB.dpuf

AHMEDABAD, AUG 14, 2014: THE issue before the Bench is - Whether when subjective satisfaction was arrived at by AO for initiation of proceedings u/s 158BD on basis of meterails found during Search, it can be said that initiation of proceedings was vitiated. And the verdict goes against the assessee.
Facts of the case

Revenue conducted a Search u/s 132 in the case of Malpani Groups. During the course of search, a locker key was found at the residence of Shri Surjanath Sidh. It was found that the locker in Oriental Bank of Commerce was in the name of Shri Pursottam Mundra, who was an employee of said Surajnath Sidh. During the course of search in locker, certain dishonoured cheques were found and seized. Out of these, the major dishonoured cheques were found to be in respect of Raju Fabrics, Roopan Textiles and Rahul International. Details were called from the Bank regarding the account holders. The copy of the bank statements were also called for which showed that a huge amount of cash was deposited and the cheques have been issued. The said cheques were from the accounts of Rahul International and Roopa Textiles and were mostly issued in the names of (i) Gunjan Exports, (ii) Raju Fabrics and (iii) Aditya Yarn Pvt. Ltd. On further enquiry, the address given in the bank accounts were found to be bogus except in the case of Rahul International, Prop. Shri Dilip V. Makwana. During the course of statement under section 131, Shri Dilip V. Makwana stated that he was working as a peon in the office of Shri Rajendra Goyal, Director of Goyal Industries Ltd. He admitted that the account in The Udhna Citizen Co. Op. Bank Ltd., Ring Road was opened at the instruction of Shri Satyanarayan Sharma @ Dayma, who was the manager of Goyal Industries Ltd. He also admitted that the blank cheques were signed by him at the instruction of Shri Satyanarayan Sharma. He stated that he had no knowledge regarding the deposit of cash or issue of cheques in the said account. Statement of Shri Satyanaayan Sharma was recorded under section 131. As the department's case, said Shri Sharma stated that he was working as manager in the Goyal Industries Ltd. and the bank accounts which were in the name of Rahul International Prop. Shri Rahul Chopra, Rahul International Prop. Shri Dilip Makwana, Roopa Textiles Prop. Shri Rajesh Nath and Raju Fabrics Prop. Shri Satyanarayan Dayma, were operated by him on the instruction of Shri Rajendra Goyal (Director of Goyal Industries Ltd.). During the interrogation, said Shri Satyanarayan Sharma confirmed that he was working as manager in the Goyal Industries Ltd. i.e. Shri Rajendra Goyal, but two concerns namely Raju Fabrics and Gunjan Exports were being run as his proprietary concerns and the books of accounts were being written at the office of Shri Rajendra Goyal, Director of Goyal Industries Ltd. He also stated that the cash deposited in the accounts of Rahul International and Roopa Textiles was actually given to him by the aforesaid Rajendra Goyal, Director of Goyal Industries Ltd. He also stated that he was actually handling all the bank accounts of the group at the instruction of Shri Rajendra Goyal. It appears that in view of the aforesaid statement made by said Shri Satyanarayan Sharma, summons were issued to Shri Rajendra Goyal and his statement was also recorded under section 131 of the Income-tax Act. The aforesaid Rajendra Goyal denied the knowledge of bank accounts and he also denied that the said Shri Satyanarayan Sharma is his employee. According to him, he was purchasing the yarn from Goyal Industries Ltd. However, the authority did not accept the case on behalf of the aforesaid Shri Rajendra Goyal, Director of Goyal Industries Ltd. and formed an opinion that undisclosed income discovered during the search has been earned and belongs to the persons i.e. Goyal Industries Ltd., Goyal Synthetics Pvt. Ltd., Foremost Finvest Pvt. Ltd., Aditya Yarn Pvt. Ltd. And Raju Fabrics and Gunjan Exports, Prop. Shri Satyanarayan Sharma, which are other than persons covered under section 132 of the I.T. Act, and therefore, having so satisfied has issued notices upon the respective assessees and others as mentioned in the Notice under section 158BD of the I.T. Act.

Assessees submitted that as such none of the requirements as contemplated/provided under section 153BD were satisfied in the present case. It was submitted in the impugned notices, nothing had been mentioned with respect to his satisfaction against the respective assessees, more particularly, that undisclosed income belonged to the respective assessees. It was submitted that as such whatever was alleged and/or the satisfaction arrived at was against Rajendra Goyal individually. It was submitted that even if during the course of search something might have been found against said Rajendra Goyal, who may be a director of the Goyal Industries Ltd., it cannot be said that any undisclosed income belonged to the respective assessees. It was submitted that it does not born out that the Assessing Officer was satisfied that any undisclosed income belonged to the respective assessees. It was submitted that as requirements as provided under section 132 of the Act were not satisfied, the subjective satisfaction of the Assessing Officer against the respective assessees was vitiated.

Revenue submitted that during the course of the search conducted in the case of Malpani Group, certain incriminating material was found against Rajendra Goyal, Director of Goyal Industries Ltd. and even against the respective assessees and others against whom notices under section 158BD of the Act were issued. It was submitted that considering the statements recorded during the inquiry/search, the Assessing Officer was satisfied that the undisclosed income has been earned and belonged to the persons against whom the notices issued under section 158BD of the Act. It was submitted that as such during the course of inquiry it has been found that accounts in the respective banks in the name of other persons were actually benami accounts of Goyal Industries Ltd. and the same were operated by Shri Satyanarayan Sharma on the instructions of Rajendra Goyal, Director of Goyal Industries Ltd. It was submitted that the satisfaction arrived at by the Assessing Officer while initiating the proceedings under section 158BD of the Act were not vitiated.

Having heard the parties, the Court held that,

++ when the subjective satisfaction has been arrived at by the Assessing Officer for initiation of the proceedings under section 158BD of the Act on the basis of the material collected during the course of search/inquiry, it cannot be said that satisfaction arrived at by the Assessing Officer while initiating proceedings under section 158 of the Act has been vitiated in any manner;

++ there is ample material on record, so mentioned in the satisfaction note, against the respective assessees and Goyal Industries Ltd and another. It is required to be noted that even the said Rajendra Goyal is the Director of Goyal Industries Ltd. and the Company i.e. Goyal Industries Ltd. is run through its Director/Manager/employees etc. Considering the material on record and in the facts and circumstances of the case and the satisfaction Note, we are satisfied that no error or illegality has been committed in issuing notice under section 158BD of the Act;

++ pursuant to the interim order passed by this Court, the block assessment proceedings were permitted to be concluded, however, are not served and implemented upon the assessees.
 

Museum for Indian Arts shall get continued recognition as Trust, as long as it satisfies conditions of sec. 80G(5)

August 14, 2014[2014] 47 taxmann.com 264 (Hyderabad - Trib.)
IT : A museum is entitled for approval under section 80G(5

Income Tax
Whether Section 80IA benefits are available to captive electricity unit supplying power to assessee's manufacturing plant - YES: HC
THE assessee company was engaged in the business of manufacturing of fused Aluminium Oxide Grains, Calcined products, Monolithics, Refractories, Bonded Abrasives, Ceramic Paper and trading of Monolithic and Refractories. The assessee had an Abrasives Grains Division that manufactured fused Aluminium Oxide grains etc. The assessee had setup a power plant for captive supply to the Aluminium Oxide gains unit. Profit earned from the power plant unit was claimed as eligible for deduction under Section 80 IA as an undertaking engaged in generation of electricity. The assessee along with return of income filed Form No.10CCB, computing deduction under Section 80 IA. In the course of the assessment proceedings, assessee filed a technical note explaining the features of the power plant established by them to generate electricity. The Assessing Officer denied benefit of Section 80 IA in respect of power plant unit.
The issue before the Bench is - Whether Section 80IA benefits are available to captive electricity unit supplying power to assessee's manufacturing plant. And the answer is YES.

Absence of reasons to show failure of assessee to disclose facts won't make re-assessment notice invalid

August 14, 2014[2014] 47 taxmann.com 265 (Bombay)
IT : Where Assessing Officer initiated reassessment proceedings taking a view that deduction under section 80HHC was not available to assessee since it did not have profit from exports, since there was no failure on part of assessee to disclose truly and fully all material facts necessary for assessment, in view of proviso to section 147, initiation of reassessment proceedings after expiry of four years from end of relevant assessment year was not sustainable

HC grants stay against tax demand to 'ICICI prudential' as ITAT had decided impugned issue in favour of ICICI

August 14, 2014[2014] 47 taxmann.com 258 (Bombay)
IT: Where demand in dispute relates to an issue which has been decided in favour of assessee, stay against demand of tax should be granted

Institutes providing event management courses without awarding any diploma not entitled to sec. 12AA registration

August 14, 2014[2014] 47 taxmann.com 259 (Cochin - Trib.)
IT: In order to fall within meaning of 'education' as provided in section 2(15), there should be a normal schooling by way of regular and systematic instruction
IT: Where assessee-trust ran an institution conducting classes in event management which were not recognized by governmental bodies and as a consequence it did not result in conferment of any degree or diploma, said activity did not fall within meaning of 'education' and, thus, assessee's claim for registration under section 12AA was to be rejected


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