The Chartered Accountant

More documents

Recommendations

Info

LEGAL UPDATE can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitutional Bench of this Court in Gurbaksh Singh Sibbia & Ors. v. State of Punjab, (1980) 2 SCC 565, and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exer- cising statutory power of arrest a person said to have committed a non -bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law. The order passed by the High Court to the extent of directions issued to the Custom Authorities was, therefore, liable to be set aside. The appeal was partly allowed. Section 2(f) of the Central Excise Act, 1944 — Manufacture Cutting and slitting of steel sheets and polyester films used for lamination purposes do not amount to manufacture Commissioner of Central Excise, Mumbai v. M/s Rajpurohit GMP India Ltd. & Ors. (Supreme Court) 14 October, 2008 Section 11A of the Central Excise Act, 1944 - Recovery of duties not-levied or not-paid or short-levied or short-paid or erroneously refunded Revenue was not justified in invoking the extended period of limitation Commissioner of Central Excise, Kanpur v. M/s. New Decent Footwear Industries (Supreme Court), 25 September, 2008 In this case, composite appeal filed by the Firm and the partners was partly accepted in the case of partners. Against the Firm the demand was confirmed. The Revenue did not file any appeal against the order passed in favour of “X”, the company to whom the Firm was supplying its proucts and the partners. The Tribunal held that the Revenue was not right in invoking extended period of limitation under the proviso to Section 11A. Section 37B of the Central Excise Act, 1944 — Instructions to Central Excise Officers A circular which is contrary to the statutory provisions has really no existence in law Commissioner of Central Excise, Bolpur v. M/s Ratan Melting & Wire Industries (Supreme Court) 14 October, 2008 The Supreme Court held that Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appro- The Supreme Court held that as the Revenue had accepted the decision in the case of X arising from the same order of the authority in original and there being no change on the facts, the appeal against the respondent firm could not be proceeded with. Further, the Revenue was not justified in invoking the extended period of limitation. The appeal was dismissed. priate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court. A circular which is contrary to the statutory provisions has really no existence in law. Service Tax Sections 76 read with Sections 77 and 78 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 — Penalty for failure to pay service tax For the purpose of arriving at a finding as to undue hardship, the case as a whole should have been considered by the appellate authority Devi Constructions, Erode v. Commissioner of Central Excise, Salem (MAD), 15 October, 2008 The respondent/appellate authority had directed the petitioner to make the payment of pre-deposit within 30 days for the purpose of enabling the respondent to hear the appeal. The petitioner has not raised any point about the financial hardship and even at the time of hearing the appeal, any such hardship had not been contended. Whether respondent was justified in directing payment of entire service tax due for the purpose of admitting the appeal without by itself considering undue hardship? The High Court held that for the purpose of arriving at a finding as to undue hardship, the case as a whole should have been considered by the appellate authority. The Appellate Tribunal before passing any interim THE CHARTERED ACCOUNTANT 1001 DECEMBER 2008
order shall consider whether the direction for deposit as pre-deposit condition would cause undue hardship to the person against whom such direction is issued. Such a finding is not available in the impugned order of the respondent, nor did the respondent decide DECEMBER 2008 1002 THE CHARTERED ACCOUNTANT LEGAL UPDATE the prima facie issue. It is not proper on the part of the respondent to come to the prima facie conclusion that the petitioner is liable to pay tax for all the works as assessed by the original authority. The petition was disposed of. Sales Tax / VAT Rule 31B of the Bombay Sales Tax Rules, 1959 — Incentives — Entitlement An existing unit is entitled to the incentives under the 1993 scheme irrespective of the increase in the production capacity Commissioner of Sales Tax, Mumbai v. Pec Vee Textile Limited, Wardha (BOM), 13 October 2008 The issue under consideration is whether the Deputy Commissioner of Sales Tax could impose conditions to the effect that the incentives can be availed proportionately to the production of the finished products attributable to the newly acquired fixed assets? The High Court held that the 1993 scheme as amended in 1994 makes a specific departure from the earlier schemes and provides for availing the incentives not on the proportionate basis but on the total production of the Existing Unit. In these circumstances, imposing conditions for availing the incentives on prorata basis would be contrary to the 1993 scheme of incentives. Therefore, additional investment made by the assessee for modernisation and upgradation of the existing plant did not result in increase in the production capacity of the plant. Merely because an existing unit is entitled to the incentives on acquisition of requisite new fixed assets and merely because the incentives are to be availed on the finished products, it cannot be presumed that the incentives under the 1993 scheme are to be availed on the finished products attributable to the fixed assets newly acquired by the existing unit. Since increase in the production capacity of the existing unit acquiring new fixed assets, is not the criteria for entitlement of incentives under the 1993 scheme, availing the incentives under the 1993 scheme proportionate to the production attributable to the newly acquired fixed assets does not arise at all. Rule 31B does not provide for availing the incentives under the 1993 scheme in proportion to the production attributable to the newly acquired fixed assets. An existing unit is entitled to the incentives under the 1993 scheme irrespective of the increase in the production capacity. The applications were disposed of. Other Acts Arbitration Act Section 11 of the Arbitration and Conciliation Act, 1996 — Appointment of Arbitrator Where conditions indicate to existence of an arbitration agreement, matter should be referred to an Arbitrator M/s. Unissi (India) Pvt. Ltd. v. Post Graduate Institute of Medical Education & Research (Supreme Court), 1 Octo- ber, 2008 Tender floated by the Respondent/PGI contained an arbitration clause. The appellant gave an offer for the tender which was accepted by the Respondent. Purchase orders were placed and in compliance with the said order, the appellant had supplied equipments. The delivery of equipments was also accepted by the Respondent and the machineries were installed however, no payment was made to the appellant. The Respondent demanded the execution of an agreement containing an arbitration clause on a non-judicial stamp paper duly signed. The appellant signed the agreement and sent it to the Respondent. The Respondent though admittedly received the same, did not send back the agreement to the appellant. It was alleged by the Respondent that no arbitration agreement was executed between the parties and, therefore, question of appointing an Arbitrator could not arise. The Additional District Judge held that it could not be held that the appellant was entitled to ask for appointment of an Arbitrator under Section 11. The High Court held that the tender documents itself contain an arbitration clause and by reason of acceptance of the tender of the appellant by PGI, it must be held that there was a valid arbitration agreement between the parties. Further, although no formal agreement was executed, the tender documents indicating certain conditions of contract contained an arbitration clause. Since, an arbitration agreement did exist in the instant case, the matter should be referred to an Arbitrator for decision. Accordingly order passed by the Learned District Judge was set aside. The appeal was allowed.
Page 1 and 2: Volume 57 No. 06 December 2008 THE
Page 3 and 4: EDITORIAL BOARD EDITOR-IN-CHIEF CA.
Page 5 and 6: DECEMBER 2008 946 THE CHARTERED ACC
Page 7 and 8: own residential Centre of Excellenc
Page 9 and 10: READERS WRITE DECEMBER 2008 950 THE
Page 11 and 12: ICAI President CA. Ved Jain address
Page 13 and 14: 956 DECEMBER 2008 THE CHARTERED ACC
Page 15 and 16: ACCOUNTING covered by forward excha
Page 19 and 20: profit and loss account and the bal
Page 21 and 22: consonance with the Standards presc
Page 23 and 24: When the power to make rules is lim
Page 25 and 26: A. Facts of the Case 1. A private l
Page 31 and 32: Now if we apply these probability c
Page 33 and 34: Residential Status DECEMBER 2008 98
Page 45 and 46: CUSTOMS I. Circulars 1. Circular No
Page 47 and 48: Appellant/assessee is a multi-state
Page 49: that the penalty proceedings under
Page 53 and 54: Facts of the case: Shri Bharat D. B
Page 55 and 56: DECEMBER 2008 1008 THE CHARTERED AC
Page 59 and 60: forcing otherwise healthy banks to
Page 61 and 62: The real question is, given the rec
Page 63 and 64: etained in LLP Bill - 2008 and some
Page 65 and 66: If the partners do not execute the
Page 67 and 68: of Accounts and a Solvency Statemen
Page 69 and 70: Section 57 of the LLP Bill provides
Page 71 and 72: e converted into a LLP by following
Page 75 and 76: y misrepresenting their earnings. I
Page 83 and 84: US$ Million USD 48.86 48.68 48.83 S
Page 85 and 86: 1. What are my professional objecti
Page 87 and 88: The Committee for Members in Indust
Page 89 and 90: ) 25-35 c) 36-45 d) 46-55 e) 56-65
Page 91 and 92: & Icai news If yes, which areas ___
Page 93 and 94: & is 15 th December 2008. Icai news
Page 95 and 96: & a) Yes b) No Comments, if any ___
Page 97 and 98: & Comments, if any_________________
Page 99 and 100: IASB Exposure Drafts on: Icai news
Page 101 and 102:
Icai news NEW PUBLICATIONS From the
Page 103 and 104:
Icai news OFFICE OF THE COMPTROLLER
Page 105 and 106:
Icai news Requirements The student
Page 107 and 108:
��
Page 109 and 110:
DECEMBER 2008 1064 THE CHARTERED AC
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
(This Accounting Standard includes
Page 119 and 120:
counts the nominal amount of the in
Page 121 and 122:
accounting treatments set out in pa
Page 123 and 124:
inspection are complete. However, r
Page 125 and 126:
(This Accounting Standard includes
Page 127 and 128:
Some loans may be interest-free or
Page 129 and 130:
Standard for Local Bodies: (i) Inte
Page 131 and 132:
the business, to an entity’s abil
Page 133 and 134:
l Ensuring employees are properly t
Page 135 and 136:
own legal counsel as to whether a c
Page 137 and 138:
cial statements (in other cases tho
Page 139 and 140:
Legal or Regulatory Restrictions on
Page 141 and 142:
strategies, and the related busines
Page 143 and 144:
Entities A35. In the case of audits
Page 145 and 146:
with governance is not adequate and
Page 147 and 148:
in the preparation of financial sta
Page 149 and 150:
asis but, in the auditor’s judgme
Page 151 and 152:
further into the future, in conside
Page 153 and 154:
Introduction 1. The purpose of this
Page 155 and 156:
Page 157 and 158:
Introduction 1. The purpose of this
Page 159 and 160:
for which controls are being assess
Page 161 and 162:
erised applications or over the ove
show all

The Chartered Accountant

Create successful ePaper yourself

Delete template?

Save as template?