IMPORTANT SERVICE TAX CASES

SERVICE TAX CASE LAWS
SOURABH SONI
SECRETARY
JAB WE MET CA

Service Tax - 2008 - - HIGH COURT OF GAUHATI -

Applicability of Service Tax on the business of development and sale of immovable properties, i.e., real estates - whether the appellant has been working, as a "service provider", for those persons with whom the petitioner-company enters into agreements and constructs flats for the purpose of sale to those with whom such agreements are entered into - HC held that department is binding by the circular issued by board. HC further held that, the activity in question is not subject to service tax.
Service Tax - 2008 - - HIGH COURT OF ANDHRA PRADESH

Applicability of Service tax on Works Contract - Appellant sought to declare the circular no. 98/1/2008 St dated 4-1-2008 ultra virus the Finance Act, 1994. In the circular it is said that contracts executed prior to 1.6.2006 shall be taxable under the old respective categories. Appellant wants to pay tax on the works contract under the new provision 65(105)(zzzza) - HC has granted interim relief to the petitioner to pay service tax under new category subject to further orders.
Service Tax - 2008 - CESTAT, Delhi

Applicability of Service Tax on services provided by private companies relating to generation, supply, distribution etc. on behalf of state power board (state governments, i.e. Madhya Pradesh Electricity Board) to the consumers - Demand was raised to the tune of Rs. 67,28,53,038/-. CESTAT has found that prima fascia the service is taxable under the category of "Business Support Service" and ordered to deposit Rs. 5 crore and stay granted for the balance demand from pre-deposit

Self Credit Scheme under Excise

Self Credit Scheme under Excise
(BY MOHAN,EDITOR,JAB WE MET CA)
Self Credit Scheme is one of the privilege given to an establishment in the state of Jammu and Kashmir by giving benefits of Central Excise
Original notification 57/2002…….. Exempts the goods specified in the schedule cleared from a unit located in the state of Jammu & Kashmir, from so much of amount of excise livable thereon under excise act as equivalent to amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit under CER 2002.

The point to be noted here is its only the amount of Excise which is exempted , the Assesee is required to pay the amount of CESS out of PLA, in other words we can say it can not be used for the payment of CESS.

Manufacturer has two Options
Either take refund of Duty paid on Cash or Take Credit of That Amount

Eg…..

Excise Payable on Output Rs100
Less:-
CENVAT Availed Rs 40

Excise Paid In Cash Rs 60


Now either he can take refund of this amount or…….

Next Month Excise Payable RS 200
Less;-
CENVAT Availed Rs 80
Less:-Self Credit Rs 60

(the amount paid in cash of last Month)
Payment to be made in Cash RS 60

Next Month Self Credit Available Will be 120 (I.e 60+60) as the amount paid as self credit will also be treated as paid in cash.
Now……… Notification 57/2002 is amended by Notification 22/2008

The amount of Self Credit taken is reduced by inserting following words

Credit Available……………….is of … Duty payable on VALUE ADDITION undertaken in the manufacture of the said goods by said unit

Duty Payable on Value Addition

Total Duty Payable (Gross) * %age specified in notification

Credit Available is of Duty Payable on Value Addition
Or
Amount paid in Cash
Which ever is less

Article by:-
Mohan Chand

OFFICE BEARERS OF JWM CA

SATBIR SINGH, PRESIDENT (JAB WE MET CA)

SOURABH SONI , SECRETARY (JAB WE MET CA)

VICE PRESIDENT ,VIVEK SAWHNEY,(JAB WE MET CA)
MOHAN , EDITOR, WEEKLY E- NEWSLETTER (JAB WE MET CA)

MANOJ GARG (48 TH RANKHOLDER NOV 07),

CORDINATOR, CA STUDENTS HELP DESK (JAB WE MET CA)

Golden Quotes

Everyone needs to be loved...
Especially when they do not deserve it...

Warren Buffet -Golden Tips

CONITNUED FROM YESTARDAY......

TWO QUALITIES OF INVESTMENT

1) some degree of safety of principal
2) and a satisfactory rate of return INCLUDING price appreciation

BUY CERTANTIES

“Buffett’s preference to “buy certainties at a discount.”
“Certainties” are defined by the predictability of a company’s
economics. The more predicable a company’s economics, the more certainty
we might have about its valuation”

INVESTMENT V/S SPECULATION

“An investment operation is one which, upon thorough
analysis, promises safety of principal and a satisfactory return. Operations
not meeting these requirements are speculative.

IDENTIFY MARGIN OF SAFETY

“Margin of Safety exists when securities are selling—for
whatever reason—at less than their real value”. If, for example, an analyst reviewed the operating history of a company and discovered that, on average, for the past five years the company was able to earn annually five times its fixed charges, then that
company’s bonds possessed a margin of safety. If the spread between the price of a stock and the intrinsic value of a company was large enough, the margin-of-safety
concept could be used to select stocks. Definition of intrinsic value is “that value which is determined by the facts.” These facts included a company’s assets, its earnings and dividends, and any future definite prospects.

MOST IMPORTANT FACTOR

“Single most important factor in determining a company’s value was its future earnings power, a calculation that is bound to be imprecise. Simply stated, a company’s intrinsic value could be found by estimating the earnings of the company and multiplying
the earnings by an appropriate capitalization factor. The company’s stability of earnings, assets, dividend policy, and financial health influenced this capitalization factor, or multiplier.Intrinsic value is distinct from the market’s quotation price. Originally, intrinsic
value was thought to be the same as a company’s book value, or the sum
of its real assets minus obligations. It is not essential to determine a company’s exact intrinsic value; instead, investors should accept an approximate measure or range of value. Even an approximate value, compared against the selling price, would be sufficient to gauge margin of safety.”

TWO RULES OF INVESTMENT,

“ Two rules of investing, said by Graham are
1) The first rule is don’t lose.
2) The second rule is don’t forget rule number one.
This “don’t lose” philosophy steered Graham toward two approaches for selecting common stocks that, when applied, adhered to the margin of safety. The first approach
was buying a company for less than two-thirds of its net asset value, and the second was focusing on stocks with low price-to-earnings (P/E) ratios.”

TO BE CONTINUED TOMORROW.......

“ENJOY TODAY ,WAIT FOR BEAUTIFUL TOMORROW ”
what are weakness and strength you find while reading this article/section ?
please give your comment below (in comment label) as how can this article/section be improved further ? it will GIVE THE OPPORTUNITY TO MEMBERS OF “ jab we met CA “ BLOG TO IMPROVE THEMSELVES. WAITING FOR YOUR REPLY....

SATBIR SINGH
PRESIDENT
JAB WE MET CA
REDEFINING PROFESSIONALISM......
“LEADERS ARE READERS, READERS ARE THE LEADERS”

DIRECTOR

SUBJECT :CORPORATE LAWS AND SECRETARIAL PRACTICE
CHAPTER- DIRECTOR
Mr Stubborn is a director of M/S Doubtful Industries Ltd. He along with other two directors has been running the company for past twenty years without declaring any dividends or giving any benefits to the shareholders. Frustrated by this, some shareholders are desirous of giving notice to pass a resolution with the support of other shareholders for his removal as a director in the annual general meeting of the company to be held in the month of December of 2001.State the procedure to be followed for the removal of Mr. Stubborn as a director and the right of stubborn to defend his position . CA (FINAL) NOV 2001

ANSWER : APPLICABLE SECTION :-284 of companies act 1956

Steps involved to solve the above question :-
Mention the procedure/steps for removal of director in sequence e.g
Mention case law to support your answer
Explain the exceptions
Give conclusions

Tips on writing a good CV

Tips on writing a good CV
What is a CV?
Your CV is your marketing brochure through which the prospective employer decides whether he wants to see you for an interview or not.
What is the purpose of a CV?
The purpose of your CV is to fetch you an interview call.

HOW to write a good CV?
Include the relevant information. Your CV may require a little bit of modification according to the type of opening you are applying for. You may need to expose different facets of your personality and work experience for different openings.
Prioritize the information
A recruiter is not interested in knowing your father's name on opening up your CV. He would rather prefer to know about your educational background, if you are a fresher and your work experience, if you an experienced job seeker. Prioritize the information in the CV to maintain the attention of the recruiter.
Emphasize at right place
Learn to emphasize at right place in the CV. If you think, any of your particular achievements gives you a cutting edge over other job seekers for a particular opening, emphasize on it. For e.g. if you are a fresher and you have been a topper of your college or university, it is worth mentioning and emphasizing in the CV. Similarly, if you are an experienced worker and your particular achievement has been acknowledged by your employer, which you think can add more value to your CV while applying for a particular position, emphasize on it.
Use more impactful words
Use words which demostrate your control over things. For e.g. managed, achieved, counselled.
Use figures
Use some figures to show the extent of your activities and their impact. For e.g. Planned raw material requirements for 10 manufacturing units of the company, across 5 states.
Don't be verbose
Try to keep your CV precise and to the point. Don't fill it up with extra words. You might land up losing the recruiters attention.
Don't dump the information
A neat CV attracts the recruiter more than the one which has information dumped on it. Provide all the relevant information but in a neat and attractive manner.
Check for spellings and grammar
Try to keep your CV free of any spelling mistakes and bad grammar. They put the recruiter off.
Key areas of a good CV
While writing a CV you must first think, what is it that you want to communicate to the recruiter through your CV. Now, write your CV keeping your objective in mind. Following are the key areas which if well written catch the immediate attention of the employer.
Executive/Career summary
A well written, short and simple executive summary at the beginning of your CV will catch the immediate attention of the recruiter. Keep it short and to the point while trying to focus on your key strengths and achievements, relevant to the position.
Work experience/ Educational background
If you have a work experience, mention it after the executive summary in a chronologically descending manner with the job profile. If you are a fresher educational back ground should find this place in your CV. Mentioning acievements rather than responsibilities is more impactful.
Mention about your achievements
Mentioning achievements out of work also plays an important role. For e.g. Elected college vice president during graduation. This demostrates your leadership quality.
Avoid using "I"," my" in your CV
The recruiter knows well that you are talking about yourself in your CV. Avoid the use of words like I , my in your CV. It makes you look egomaniac.

Pay Carbon Tax

Polluting power cos may pay carbon tax

29 Jul, 2008, 0205 hrs IST,Subhash Narayan, ET Bureau

NEW DELHI: The energy coordination committee headed by Prime Minister Manmohan Singh has suggested imposition of a carbon tax on polluting power stations. The proposal would club India with a select group of countries that tax carbon emissions directly and boost the renewable energy initiative. The initiative could turn Indian power stations more efficient and less polluting; it could push up power tariffs. “A proposal to levy carbon tax on polluting power stations is on the table. The move would also enable the country to begin work on containing pollution at an early stage itself. While we are sitting on huge carbon credits now, it is feared that rising pollution could change the situation soon. The new tax would provide more funds for renewable energy initiative whose share in total power mix is dismal at present,” an official source told ET . However, implementation of the proposal would depend on how fast the country progresses in having benchmarks for efficiency that would be important for levying a carbon tax. It is also felt that the carbon tax should not be additional burden on utilities. The ECC has also suggested that carbon tax should not be a standalone initiative and there was also a need for introducing a system of emission trading in order to avoid problems in the country’s negotiating position on climate change. Most countries in the European Union have a system of penalising polluting industries, forcing them to buy carbon credits from efficient industries. India proposes to add 78,577 mw of additional power generation capacity during the 11th Plan. Around 70% of this capacity would come from the thermal sector. The gross installed capacity of grid interactive renewable power in the country is estimated at 11,273 mw, 8% of the total installed generation capacity in the country.

WHAT IS SERVICE ?

TAX ON SERVICES BUT WHAT IS SERVICE ?

Service tax has been levied on services i.e., taxable services as per section 65(105) of the Finance Act, 1994 but the term 'service' has not been defined in Act/Rules or by way of any explanation. What constitutes taxable service is very often a subject matter of dispute. Its literal meaning is an act of helpful activity, rendering of assistance or help. Service is a transformation of the user or user's goods, as a result of the voluntary intervention by the producer of services. It is generally an intangible commodity in the forms of external efforts and excludes sale of goods or property or commodities. It pre-supposes existence of a service provider. For service tax purposes, if there is no taxable service, there is no tax.
What is Service ?
Service has been defined differently under various laws and dictionaries. Under Income Tax Act, 1961, service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial nature such as accounting, banking, communication, conveying of news or information, advertising, entertainment, amusement, education, financing, insurance, chit funds, real estate, construction, transport, storage, processing, supply of electrical or other energy, boarding and lodging.
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking financing, insurance, chit fund, real estate, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the conveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Explanation.— For the removal of doubts, it is hereby declared that any dealings in real estate shall be included and shall be deemed always to have been included within the definition of 'service'. [Monopolies and Restrictive Trade Practices Act].
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance transport processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. [Consumer Protection Act, 1986].
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking financing, insurance, medical assistance, legal assistance, chit fund, real estate, transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service fee of charge or under a contract of personal service. [Foreign Exchange Management Act, 1999].
Service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising. [Trademarks Act, 1999 and Competition Act, 2002].
Service means something provided, usually for a fee, that may not be classed as manufacturing or production in any form (such as legal advice, brokerage, agency services and financial advice). [International Accounting; Business; Insurance].
Thus, literally, service can be said to have the following salient features—
— Act of helpful activity
— Act of doing something useful
— Rendering of assistance/help
— Anything which does not involve supply or transfer of goods is service
— Transformation of user/user goods as a result of voluntary intervention of service provider
— Intangible commodity in form of human effort
— Excludes sale of goods/commodities/property
— Existence of service provider
However, following judgements may create controversy between sale of goods and services -
• Sale of sim card and activation of mobile service is a taxable service [Escotel Mobile Communications Ltd. v. Union of India 2005 -TMI - 185 - HIGH COURT OF KERALA]
• Sale of sim cards by a company engaged in providing cellular telephone services to its subscribers fall within the taxable services [Aircell Digilink India Ltd. v. CCE Jaipur 2005 -TMI - 161 - CESTAT, NEW DELHI; Bharti Cellular Ltd. v. CCE Delhi 2005 -TMI - 197 - CESTAT (NEW DELHI)]
• Provision of telephone connection constitutes a sale, as it involves the transfer of right to use goods attracting sales tax, notwithstanding the fact that service is subject to service tax. [State of Uttar Pradesh & Others v. Union of India & Others 2005 -TMI - 143 - SUPREME COURT]
• Transfer of intellectual property, say software, though a medium which is bought and sold as goods (like in case of floppies, discs, CD Rom, punch cards, magnetic tape etc.) would constitute sale purchase of goods and not that of IPR. In one of the cases of sales tax in Tata Consultancy Services v. State of Andhra Pradesh (2008 -TMI - 4143 - Supreme Court) , Supreme Court has held that software may be intellectual property but as the property contained in a medium is bought and sold, it is an article of value and as such, software can be described as goods subject to sales tax.
Supreme Court observed in TCS case (supra) to distinguish between goods and services as under—
"The music is produced by the artistry of musicians and in it is not a good, but when transferred to a laser-readable disc, it becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but when transcribed as a book, it becomes a good".
What constitute 'goods' and is sold by the service provider can not be subjected to service tax which is also evidenced by Notification No. 12/2003-ST dated 20.6.2003 whereby cost of goods or material sold by the service provider to the receiver of services during the course of provision of taxable services is exempt from levy of service tax. Certain abatements also justify this logic.
Anything which is not a good will be called a service. To be a service, some action or rendition of service on the part of service provider is also necessary.
In Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes (2008 -TMI - 2576 - Supreme Court of India), it has been held that payment of service tax and VAT are mutually exclusive. In a composite contracts, both sales and service component can be present.


About the Author: -
Dr. Sanjiv Agarwal

Article Section

List article


TAX ON SERVICES BUT WHAT IS SERVICE ?

Service tax has been levied on services i.e., taxable services as per section 65(105) of the Finance Act, 1994 but the term 'service' has not been defined in Act/Rules or by way of any explanation. What constitutes taxable service is very often a subject matter of dispute. Its literal meaning is an act of helpful activity, rendering of assistance or help. Service is a transformation of the user or user's goods, as a result of the voluntary intervention by the producer of services. It is generally an intangible commodity in the forms of external efforts and excludes sale of goods or property or commodities. It pre-supposes existence of a service provider. For service tax purposes, if there is no taxable service, there is no tax.
What is Service
Service has been defined differently under various laws and dictionaries. Under Income Tax Act, 1961, service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial nature such as accounting, banking, communication, conveying of news or information, advertising, entertainment, amusement, education, financing, insurance, chit funds, real estate, construction, transport, storage, processing, supply of electrical or other energy, boarding and lodging.
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking financing, insurance, chit fund, real estate, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the conveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Explanation.— For the removal of doubts, it is hereby declared that any dealings in real estate shall be included and shall be deemed always to have been included within the definition of 'service'. [Monopolies and Restrictive Trade Practices Act].
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance transport processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. [Consumer Protection Act, 1986].
Service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking financing, insurance, medical assistance, legal assistance, chit fund, real estate, transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service fee of charge or under a contract of personal service. [Foreign Exchange Management Act, 1999].
Service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising. [Trademarks Act, 1999 and Competition Act, 2002].
Service means something provided, usually for a fee, that may not be classed as manufacturing or production in any form (such as legal advice, brokerage, agency services and financial advice). [International Accounting; Business; Insurance].
Thus, literally, service can be said to have the following salient features—
— Act of helpful activity
— Act of doing something useful
— Rendering of assistance/help
— Anything which does not involve supply or transfer of goods is service
— Transformation of user/user goods as a result of voluntary intervention of service provider
— Intangible commodity in form of human effort
— Excludes sale of goods/commodities/property
— Existence of service provider
However, following judgements may create controversy between sale of goods and services -
• Sale of sim card and activation of mobile service is a taxable service [Escotel Mobile Communications Ltd. v. Union of India 2005 -TMI - 185 - HIGH COURT OF KERALA]
• Sale of sim cards by a company engaged in providing cellular telephone services to its subscribers fall within the taxable services [Aircell Digilink India Ltd. v. CCE Jaipur 2005 -TMI - 161 - CESTAT, NEW DELHI; Bharti Cellular Ltd. v. CCE Delhi 2005 -TMI - 197 - CESTAT (NEW DELHI)]
• Provision of telephone connection constitutes a sale, as it involves the transfer of right to use goods attracting sales tax, notwithstanding the fact that service is subject to service tax. [State of Uttar Pradesh & Others v. Union of India & Others 2005 -TMI - 143 - SUPREME COURT]
• Transfer of intellectual property, say software, though a medium which is bought and sold as goods (like in case of floppies, discs, CD Rom, punch cards, magnetic tape etc.) would constitute sale purchase of goods and not that of IPR. In one of the cases of sales tax in Tata Consultancy Services v. State of Andhra Pradesh (2008 -TMI - 4143 - Supreme Court) , Supreme Court has held that software may be intellectual property but as the property contained in a medium is bought and sold, it is an article of value and as such, software can be described as goods subject to sales tax.
Supreme Court observed in TCS case (supra) to distinguish between goods and services as under—
"The music is produced by the artistry of musicians and in it is not a good, but when transferred to a laser-readable disc, it becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but when transcribed as a book, it becomes a good".
What constitute 'goods' and is sold by the service provider can not be subjected to service tax which is also evidenced by Notification No. 12/2003-ST dated 20.6.2003 whereby cost of goods or material sold by the service provider to the receiver of services during the course of provision of taxable services is exempt from levy of service tax. Certain abatements also justify this logic.
Anything which is not a good will be called a service. To be a service, some action or rendition of service on the part of service provider is also necessary.
In Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes (2008 -TMI - 2576 - Supreme Court of India), it has been held that payment of service tax and VAT are mutually exclusive. In a composite contracts, both sales and service component can be present.


About the Author: -
Dr. Sanjiv Agarwal
asandco@gmail.com
FCA, FCS, ACIS(UK)

Golden Quotes

Do what you can, for who you can, with what you have, and where you are.