Form 23B can be filed without additional fees up to 12th August, 2012

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General Circular No. 22/2012, Dated the 3rd Aug, 2012
Sub : Imposing fees on certain e-forms filed with ROC, RD or MCA(HQ) under MCA-21 where at present no fee is prescribed.
I am directed to refer to the Ministry’s General Circular no. 14/2012 dated 21st June 2012 & General Circular no. 19/2012 dated 27th July 2012 and to say that fees on Form 23B (Information by statutory auditor to the Registrar) has been further deferred for one week and shall now be applicable from 12th August, 2012.

Sending order at correct address by registered post is deemed to be duly served unless assessee proves otherwise

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CESTAT, NEW DELHI BENCH

Greenview Land & Building Con. Ltd.

v.

CCE, Chandigarh-II

FINAL ORDER NO. 59/A/475/12-CUS

STAY ORDER NO. ST/S/710/12-CUS.

ST/STAY NO. 953/2012

ST/A NO. 431/2012

MAY 30, 2012

We are guided by the judgment of Hon’ble High Court of Punjab & Haryana in the case of CCE v. Mohan bottling Co (P.) Ltd. 2010 (255) ELT 321 where it was held that it is for the assessee to rebut presumption of service by cogent evidence that in fact order was never served upon him. Order of Larger Bench of the Tribunal passed on 28.8.2006 in favour of the respondent was reversed. Larger Bench of Tribunal in that case had held that dispatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery of speed post.Thus according to judgment of Hon’ble High Court of Punjab & Haryana in Mohan Bottling Co (P.) Ltd.’s case (supra), it can safely be said that sending the order at correct address by registered post is a sufficient compliance of section 37-C of Central Excise Act, 1944 and it is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. The appellant in the present appeal in hand failed to discharge its burden of proof, we are able to notice this is a case of service on any authorized person, nor the case of closure of factory nor the case of rebuttal of presumption of by appellant. Thus both stay application and appeal fail to succeed. Accordingly both are dismissed.

Roads inside & within boundary wall of premises are part of factory buildings

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HIGH COURT OF RAJASTHAN

Commissioner of Income-tax, Jaipur

v.

Sunshine Glass Indus (P.) Ltd.

D.B. IT REFERENCE NO. 12 OF 1984

OCTOBER 28, 2010

In Hukamchand Mills Ltd. v. CIT [1978] 114 ITR 870 (Bom.), the roads laid out within factory premises were regarded as part of factory buildings and were entitled to depreciation. In the case of CIT v. Lucas TVS Ltd. [1977] 110 begin_of_the_skype_highlighting FREE [1977] 110 end_of_the_skype_highlighting ITR 346 (Mad.), the word ‘building’ was held to include roads laid in the proximity of factory for the purpose of providing access to factory and other buildings within compound and they were entitled to depreciation. The aforesaid view taken by the High Courts was correct because roads constructed inside and medium boundary wall of premises, be it a building or factory, are meant to augment utilization thereof. Such roads are eventually intended to augment utilization of building/factory by providing access thereto. In view of above, the impugned order of the Tribunal allowing assessee’s claim for depreciation was to be upheld.

AAR is a court & its ruling should be first challenged before HC

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No. 31543 of 2011

Columbia Sportswear Company … Petitioner Versus

Director of Income Tax, Bangalore … Respondent

WITH SPECIAL LEAVE PETITION (C) No. 3318 of 2011,

SPECIAL LEAVE PETITION (C) No. 13760 of 2011,

SC held that We do not think that we can hold that an advance ruling of the Authority can only be challenged under Article 136 of the Constitution before this Court and not under Articles 226 and/or 227 of the Constitution before the High Court. In L. Chandra Kumar v. Union of India and Others (supra), a Constitution Bench of this Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is part of the basic structure of the Constitution. Therefore, to hold that an advance ruling of the authority should not be permitted to be challenged before the High Court under Articles 226 and/or 227 of the Constitution would be to negate a part of the basic structure of the Constitution. Nonetheless, we do understand the apprehension of the Authority that a writ petition may remain pending in the High Court for years, first before a learned Single Judge and thereafter in Letters Patent Appeal before the Division Bench and as a result the object of Chapter XIX-B of the Act which is to enable an applicant to get an advance ruling in respect of a transaction expeditiously would be defeated. We are, thus, of the opinion that when an advance ruling of the Authority is challenged before the High Court under Articles 226 and/or 227 of the Constitution, the same should be heard directly by a Division Bench of the High Court and decided as expeditiously as possible.

The only other question which we have to consider is whether we should entertain this petition under Article 136 of the Constitution or ask the petitioner to approach the High Court under Articles 226 and/or 227 of the Constitution. Article 136 of the Constitution itself states that this Court may, “in its discretion”, grant special leave to appeal from any order passed or made by any court or tribunal in the territory of India. The words “in its discretion” in Article 136 of the Constitution makes the exercise of the power of this Court in Article 136 discretionary. Hence, even if good grounds are made out in a Special Leave Petition under Article 136 for challenge to an advance ruling given by the Authority, this Court may still, in its discretion, refuse to grant special leave on the ground that the challenge to the advance ruling of the authority can also be made to the High Court under Articles 226 and/or 227 of the Constitution on the self same grounds. In fact, in Sirpur Paper Mills Ltd. v. Commissioner of Wealth Tax, Hyderabad [AIR 1970 SC 1520] it has been observed that this Court does not encourage an aggrieved party to appeal directly to this Court against the order of a Tribunal exercising judicial functions unless it appears to the Court that a question of principle of great importance arises. Unless, therefore, a Special Leave Petition raises substantial questions of general importance or a similar question is already pending before this Court for decision, this Court does not entertain a Special Leave Petition directly against an order of the tribunal.

Losses not claimed in original Return, cannot be claimed by filing revised return

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IN THE ITAT BANGALORE BENCH ‘A’

Karnataka Forest Development Corp. Ltd.

v.

Commissioner of Income-tax

I T APPEAL NO. 81(BANG.) OF 2011

[ASSESSMENT YEAR 2004-05]

MARCH 30, 2012

Undisputedly, the assessee has filed original return under sub-section (1) of section 139. In the said return of income, the assessee has not claimed the loss. Sub-section (5) provides that where the assessee discovers any omission or a wrong statement, then he can file a revised return. Where the wrong statement or omission results in the claim of loss, when the return filed under section 139(5) is to be considered or not, is to be now seen. Whether omission of such a claim of loss in the original return of income is bona fide or not is also to be seen. From the revised return of income, it is noticed that the assessee has not only claimed the loss of the relevant assessment year, i.e., 2004-05 to be carried forward but has also claimed the loss of the assessment year 2003-04 to be carried forward. Thus, it is to be presumed that the assessee was having the knowledge of the loss for the assessment year 2003-04 which was to be carried forward and claimed in the assessment year 2004-05. Therefore, when it filed the return under section 139(1), it should have taken this loss into consideration and should have filed the return under section 139(3). Having filed the original return of income under section 139(1), the assessee cannot later on file the revised return of income claiming the loss on the ground that it was discovered subsequently. This argument of the assessee is not acceptable. In view of the same, the findings of the Commissioner (Appeals) were to be agreed with that when the assessee was claiming the loss for the relevant assessment year and also claiming the loss to be carried forward of the loss of 2003-04 and 2004-05, respectively, then the assessee was required to file the return under section 139(3) and, therefore, the revised return filed under section 139(5) could not be accepted and had to be treated as null and void.  

MCA extends due date to file Form No. 5 INV to 31st August 2012

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GENERAL CIRCULAR NO. 20/2012 , Dated: 01.08.2012

As per the Circular No. 17/2012 dated the 23rd July, 2012, the Companies are required to file one Form 5 INV each year for furnishing complete information on unpaid/unclaimed amounts lying with companies as on the date of Annual General Meeting of that year, in pursuance of Investor Education and Protection Fund (uploading of information regarding unpaid and unclaimed amounts lying with companies) Rules 2012, published in the Gazette of India Part II section 3 sub section (i) vide Notification No. G.5.R. 352 (E) dated the 10th May, 2012. However, it has come to the notice of the Ministry that some companies have filed multiple Form No. 5 INV in respect of unpaid/unclaimed amounts lying with them instead of filing one form. To remove this anomaly and for better understanding of the issue, it is clarified:

(a) Any Company, which has filed multiple Form 5 INV while uploading the information for the year 2010-11 on or before the date of issue of this circular, should again file Form 5 INV (single) and upload the details of investors in excel template. This process should be completed by 31′ August, 2012.

(b) All Companies, which have not yet filed Form No. 5 INV are allowed to file Form No. 5 INV along with details of investors in excel template upto 31′ August, 2012.

No Addition u/s 68 for share application money received in bank if assessee establishes identity of share applicants

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INCOME TAX APPELLATE TRIBUNAL DELHI

ITA No.2059 /Del/2011 – Assessment year: 2006-07

Income-tax Officer

V/s

M/s Golden Home Furnishing Pvt. Ltd.

Date of pronouncement: 28-06-2012

Indisputably, certain discrepancies crept in while furnishing the information requisitioned by the AO from the assessee in respect of the aforesaid amount of Rs. 10 lacs from M/s Melco Sales Pvt. Ltd. and Rs. 5 lacs from M/s Poonam Corporation Ltd. towards share application money vis-à-vis information obtained by the AO from the aforesaid two companies u/s 133(6) of the Act. After examining the relevant details and documents including bank statements of the assessee and share applicants, the ld. CIT(A) concluded that in view of the evidences on record, the mismatch as observed by the AO is duly explained by the entries in the bank statement of the assessee as well as the share applicant and the assessee discharged its onus by establishing the identity of the share applicants, the genuineness of the transaction as well as the credit worthiness of the investors. Accordingly, the ld. CIT(A) deleted both the additions. The ld. DR did not place before us any material, controverting the aforesaid findings of facts recorded by the ld. CIT(A) so as to enable us to take a different view in the matter. In the absence of any basis, we are not inclined to interfere. Therefore, ground nos.1 & 2 in the appeal are dismissed.