1. Issue 05 May , 2011
DIRECT TAXES …... 1-9
INDIRECT TAXES ……. 9 - 13
OTHER LAWS ………... 13 -16
SN K
IMPORTANT DUE DATES… 16
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DIRECT TAXES
Judicial pronouncements Newsletter
Dl. V. Raghuvanshi Charitable Trust [(197 Taxman 170)
(Delhi)]
Trust can be allowed to carry forward the deficit of current
year and to set off against the income of subsequent years.
Adjustment of deficit of current year against income of sub-
sequent year would amount to application of income of trust
for charitable purposes in subsequent year within the mean-
ing of Sec. 11(1)(a).
CIT vs. Gujarat Power Corporation Ltd. (Gujarat High
Court) (2011-TIOL-219-HC-AHM-IT)
Disallowance u/s 14A is invalid when the assessee has
shown that there is no nexus between borrowed funds borrowing. The assessee had demonstrated that it had other
and tax free investment. sources of investment and that no part of the borrowed fund
could be stated to have been diverted to earn tax free in-
The assessee borrowed Rs. 3.83 crores on which it paid
come. As borrowed funds were not used for earning tax-free
interest of Rs. 17.31 lakhs. As the assessee had made in-
income, applying s. 14A was not justified.
vestments in tax-free bonds, the AO held that the entire in-
terest paid on the borrowings had to be disallowed u/s 14A DCIT vs. M/s. Hewlett Packard India Sales P Ltd . (2011
on the basis that the assessee had arranged its affairs so as TOIL-224 (ITAT) Bang)
to reduce the tax liability. If the assessee had not invested its Purchased Goodwill is eligible for depreciation u/s 32(1)(ii).
own fund for earning tax-free income, it would not have re- The true basis of depreciation allowance is the character of
quired to borrow interest bearing funds for its business and the asset and not its description.
so there was a nexus between the borrowed funds and the
CIT v. Neelakanth Synthetics and Chemicals P. Ltd. [330
tax free income. This was reversed by the CIT (A) and Tribu-
ITR 463 (Bom.)]
nal on the basis that the assessee was justified in arranging
its affairs so as to reduce the tax liability and that it was the Interest on loans borrowed to settle liability of sister
prerogative of the assessee to use its own fund in the man- concern to retain business premises of assessee is al-
ner in which it considers proper and the Revenue cannot lowable business expenditure
dictate how the funds should be used. On appeal by the de-
The assessee company had taken a business premises on
partment to the High Court, HELD dismissing the appeal:
lease from its sister concern for a period of 12 years on a
The assessee has sufficiently explained that a majority of lease rent of Rs. 20,000 per month.
the investment in the tax-free security was made before the
1

2. DIRECT TAXES
Judicial pronouncements
SNK
The assessee company had sub- was necessary to carry on the busi- AO stated that the services rendered
leased the said business premises to a ness activities of the assessee. by the stock exchange are technical in
bank for Rs. 2,26,800 per month, inclu- nature and therefore section 194J is
(ii) The Assessing Officer accepted
sive of water charges and taxes. The applicable.
the income received by the assessee
said business premise was offered as
from the leased premises as rental In appeal, CIT (A) deleted the addition
collateral security for raising finance
income and assessed it as income applying the decision of Kotak Securi-
from the bank by a sister concern. Due
from other sources. In such circum- ties Private Limited and Angel Broking
to heavy losses incurred, the sister
stances, the finding was that in order observing that transaction fees paid to
concern could not repay that loan and
to safeguard the interest of the lease the stock exchange could not be said
accordingly the premises was liable to
premises and also to bail out its sister to be fees paid in consideration of
be disposed off by the bank for realiza-
concern, the loan was obtained from stock exchange rendering any techni-
tion of the loan amount. In such cir-
the bank. The findings were reason- cal services to the assessee. There-
cumstances a settlement was reached
able and could not be said to be per- fore, provisions of section 9(1)(vii) and
between the assessee company and
verse. section 40(a)(ia) are not applicable.
the bank whereby a loan was ad-
vanced by the bank in the name of the CIT v. Rockman Cycle Industries (P) CIT v. Siya Ram Garg (HUF) [237
assessee company and the same was Ltd. [(2011) 331 ITR 401 (P & H) (FB)] CTR 321 (P&H)]
used to settle the liability of the sister AO can lift veil & determine legal Disallowance u/s. 40A(2) of the In-
concern. The assessee did not charge effect but cannot ignore legal effect come Tax Act, 1961 on the ground that
any interest from its sister concern. For on ground of “substance” the assessee paid higher rate to its
the A.Y.1997-98, the Assessing Officer sister concerns is not warranted/
The AO or the appellate authorities
disallowed the amount of interest on Justified if the said sister concerns are
and even the Courts can determine the
the said loan on the ground that the paying tax at the same rate as the as-
true legal relation resulting from a
said loan was not utilized for the pur- sessee.
transaction. If some device has been
poses of the business of the assessee
used by the assessee to conceal true Praveen Gupta v. ACIT (ITAT, New
company. The Tribunal allowed the
nature of the transaction, it is the duty Delhi)( ITA No. 2558/Del./2010
assessee’s claim.
of the taxing authority to unravel the
The year of acquisition should be
On appeal by the Revenue, the Bom- device and determine its true charac-
the year when the assessee entered
bay High Court upheld the decision of ter. However, the legal effect of the
into agreement to purchase the flat
the Tribunal and held as under: transaction cannot be displaced by
and not the year when the convey-
(i) Both the authorities below concur- probing into the "substance of the
ance deed was executed for calcu-
rently proceeded on the footing that transaction". The taxing authority must
lating indexed cost of acquisition.
any expenditure incurred for protecting not look at the matter from their own
viewpoint but that of a prudent busi- According to the Tribunal, the as-
the business asset held by an as-
nessman. Each case will depend on its sessee by entering into an agreement
sessee for its business or any expendi-
own facts. The exercise of jurisdiction to purchase a flat had identified a par-
ture incurred for the protection and
cannot be stretched to hold a roving ticular property which he was intending
maintenance of business premises
enquiry or deep probe. to buy from the builder and the builder
would be an allowable expenditure. It
was also bound to provide the appli-
was only to retain the business prem- Vinod K Nevatia (2011-TIOL-65-
cant with that property. According to
ises that the assessee had to borrow ITAT-MUM)
Tribunal, the assessee had acquired
the funds from the bank and as such,
While making the assessment, the AO right to get a particular flat from the
interest payable on the borrowing for
made disallowance u/s 40(a)(ia) for builder and that right itself was capital
retaining the premises would be an
non-deduction of tax on payment asset of the assessee. Therefore, it
allowable deduction u/s.36(1)(iii) of the
made to NSE for lease line charges, held that the benefit of indexation had
Income tax Act, 1961, because the
VSAT charges and transaction to be granted to the assessee from the
loan was used for the purpose of re-
charges. date he entered into agreement to pur-
taining the business premises which
chase the flat.
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3. DIRECT TAXES SNK
Judicial pronouncements
Parbodh Investment & Trading A plain reading of the provisions of another UK company. Finsider, UK,
Company Pvt. Ltd. v. ITO (ITAT, section 70(3) of the ITA shows that the held 51% shares of Sesa Goa Ltd, In-
Mumbai)(ITA No. 6557/Mum./2008) first part of the provision refers to a dia. The AO took the view that the 51%
loss as computed under sections 48 to shares in Sesa Goa held by Finsider,
Capital Gains arising on transfer of
55 of the ITA in respect of any capital UK, constituted a capital asset u/s 2
a capital asset (Flat) on which de-
asset. (14) and that the transfer of the shares
preciation was allowed for two
of Finsider amounted to a transfer of
years but thereafter the assessee The second part of the provisions of
the said 51% shares of Sesa Goa and
stopped claiming deprecation and section 70(3) of the ITA refers to in-
that the assessee was liable to deduct
also gave the flat on rent is charge- come if any as arrived at under “similar
tax at source u/s 195 when it bought
able as long term capital gains after computation”. Thus, the second part
the shares of Finsider, UK. He accord-
allowing the benefit of indexation. refers only to the mode of computation
ingly issued a show-cause notice u/s
under sections 48 to 55 of the ITA and
The Tribunal held that the moment the 201 seeking to treat the assessee as a
that would be the correct interpretation.
assessee stopped claiming depreca- defaulter. The assessee filed a Writ
It cannot be said that the second part
tion in respect of the flat and even let Petition to challenge the notice on the
of the provisions by using the expres-
out the same for rent, it ceased to be a ground that as one non-resident had
sion “similar computation”, refers to a
business asset. It noted that the princi- sold shares of a foreign company to
similar computation under either the
ple of the order, dated 31.01.2007 of another non-resident, there was no
second proviso to section 48 relating to
the Mumbai bench of ITAT in case of liability under Indian law. HELD not
indexed capital gains or proviso to sec-
glaxo Laboratories (I) Ltd., though laid accepting the assessee’s contention:
tion 112(1) relating to non-indexed
down in a different context, would sup-
capital gains. What is under challenge is only the
port the assessee in the sense that it is
show-cause notice issued u/s 195 … it
possible for a business asset to The Tribunal accordingly held that in-
may be necessary for the fact finding
change its character into that of a fixed dexed long term capital loss can be set
authority to lift the corporate veil to
asset or investment. The Tribunal di- off against non-indexed long term capi-
look into the real nature of transaction
rected that the capital gains be as- tal gains.
to ascertain virtual facts. It is also to be
sessed as long term capital gain after
ascertained whether the assessee, as
allowing the benefit of cost indexation
a majority shareholder, enjoys the
as claimed by the assessee.
power by way of interest and capital
Vipul A. Shah v. ACIT [(ITA No 3190/ gains in the assets of Sesa Goa and
Mum/2010) Mumbai ITAT, dated 8 whether transfer of shares in the case
April 2011] on hand includes indirect transfer of
The provisions of section 48 to 55 of assets and interest in Sesa Goa.
the Income-tax Act (“ITA”) refer to the ITO vs. Hemandas J. Pariyani [(ITAT
mode of computation of capital gains. Mumbai) ITA No. 2508/Mum/2010
Richter Holding Ltd. Vs. ADIT
The provisions of section 70(3) of the A.Y. 1997-98]
(Karnataka High Court)
ITA refers to setting of long term capi-
No Tax on Redevelopment Gains for
tal loss against the long term capital Corporate Veil can be lifted to tax
Society and Members
gains arrived at under a similar compu- sale of Foreign Co shares by one
tation. The Tribunal observed that the Non-Resident to another Non- Issue in dispute was covered by the
above provisions relating to set off of Resident if Foreign Co holds shares decision of ITAT in the case of Jethalal
long term capital loss against the long in Indian Co Vs. DCIT wherein the ITAT held that
term capital gains existed much prior “transferable development rights
The assessee, a company based in
to the mode of computation of capital granted by the Development Control
Cyprus, bought shares (100% together
gain without applying the benefit of Regulations for Greater Mumbai, 1991,
with another company) of a UK com-
indexation. qualifying for equivalent floor space
pany called Finsider International, from
index having no cost of acquisition,
3

4. DIRECT TAXES SNK
Judicial pronouncements
sale thereof does not give rise to tax- sale had been on the same day and two deeming fictions created in section
able capital gains”. Since the facts of there is even one instance of forward 50 and section 50C. The first deeming
the case under consideration is identi- sales, (e) there were no details regard- fiction modifies the term ‘cost of acqui-
cal to that of the decision of the ITAT in ing delivery of shares, (f) the assessee sition’ used in section 48 for the pur-
the said case, ITAT respectfully fol- had not proved that the purchases pose of computing the capital gains
lowed the same and in the light of that were not out of borrowed funds and (g) arising from transfer of depreciable as-
ITAT uphold the order of the CIT(A) in there were no separate bank accounts. sets whereas the deeming fiction cre-
directing the AO not to charge capital On appeal to the Tribunal allowing the ated in section 50C modifies the term
gains tax on the compensation re- appeal held that though it is the case of “full value of the consideration received
ceived by the assessee even on pro- the revenue that due to volume, magni- or accruing as a result of transfer of the
tective basis. Accordingly, the ground tude, frequency, continuity, regularity, capital asset” used in section 48 for the
raised by the revenue on this count is the ratio between purchase and sale purpose of computing the capital gains
hereby dismissed. clearly indicate that income on account arising from the transfer of capital asset
of purchase and sale of shares should being land or building or both. The
Shantilal M. Jain v. ACIT (ITAT Mum-
be treated as income from business deeming fiction created in section 50-C
bai) [ITA No. 2690/Mum/2010 (Asst
and not as income from STCG, the AO thus operates in a specific field which is
Year 2006-07)]
has, from AY 2003-04 to 2008-09 different from the field in which section
Despite large volume etc of share (except for the impugned year 2006- 50 is applicable. It is thus not a case
transactions, AO bound by Rule of 07), consistently accepted the income where any supposition has been
Consistency to treat share gains as as being STCG. In these circum- sought to be imposed on other suppo-
STCG. stances, the Rule of consistency as sition of law. On the other hand, there
The assessee, engaged in the busi- propounded by the Bombay High Court are two different fictions created into
ness of trading/investment in shares in Gopal Purohit 228 CTR 582 (Bom) is two different provisions and going by
and securities offered STCG of Rs. squarely applicable and the income the legislative intentions to create the
1.54 crores and LTCG of Rs. 2.91 has to be treated as STCG. said fictions, the same operate in differ-
crores. The assessee also traded in ent fields. The harmonious interpreta-
ITO v. United Marine Academy (ITAT
intra-day stocks without delivery and in tion of the relevant provisions makes it
Mumbai)(ITA No. 968/Mum./2007)
derivatives, the gain or loss from which clear that there is no exclusion of appli-
There are two deeming fictions cre- cability of one fiction in a case where
was offered as business income. While
ated in s. 50 and s. 50C for comput- other fiction is applicable. As a matter
the LTCG was accepted, the AO & CIT
ing capital gains on building. While of fact, there is no conflict between
(A) held that the STCG was assessable
s. 50 modifies the “cost of acquisi- these two legal fictions which operate
as business profits on the ground that
tion” for purposes of s. 48, s. 50C in different fields and their application
(a) the purchases of Rs. 1098 lakhs
modifies the term “full value of the in a given case simultaneously does
and sale of Rs. 1241 lakhs during the
consideration received or accruing not result in imposition of supposition
year showed that the transactions were
as a result of transfer of the capital on other supposition of law. The As-
on a regular basis and on a substan-
asset”. The two deeming fictions sessing Officer thus was right in apply-
tially high scale, (b) The assessee had
operate in different fields and there ing the provision of section 50C to the
traded in as many as 85 scrips in 188
is no conflict between them. As s. transfer of depreciable capital assets
transactions and in as many as
50C was inserted to prevent as- covered by section 50 and in comput-
1631852 shares during the year with
sessee’s indulging in under- ing the capital gain arising from the
frequency and regularity, (c) only in 21
valuation, there is no logic why it said transfer by adopting the stamp
scrips there have been some opening
should not be applied to a deprecia- duty valuation. ITAT, therefore, answer
balances. The rest of the scrips had all
ble building; the question referred to this special
been purchased and sold during the
year, (d) the holding period in several On interpretation of the relevant provi- bench in the affirmative i.e. in favour of
shares has been merely a few days sions of sections 48, 50 and 50C, the the Revenue and against the as-
and in a few cases the purchase and tribunal was of the view that there are sessee.
4

5. DIRECT TAXES
Judicial pronouncements
SNK
Chiranjeev Lal Khanna v. ITO (ITA has been registered through State tor and all expenditure was borne by
No. 6170/Mum/2008) Registration Authorities. Therefore, the contractor, the contract was for
there is transfer of a capital asset i.e. “carriage of passengers” for which the
ITAT Mumbai held that considering the
land and building, the capital gain on assessee paid a fixed amount. There-
facts of the case and clauses in the
which is chargeable to income tax. fore, the payment of vehicle hire
agreement, the taxpayer has trans-
Accordingly, provisions of Section 50C charges fell within the scope of Section
ferred land and building to the devel-
of the Act are applicable to the facts of 194C and was not “rent” for Section
oper would be chargeable to tax as
the instant case. 194-I.
capital gains. Accordingly, Section 50C
of the Income-tax Act, 1961(the Act) Digital Electronics Ltd. v. Addl. CIT
would be applicable. (ITA No. 1658 (Mum.) of 2009)
[(2011) 135 TTJ 419 (Mumbai)]
On perusal of the various clauses of
the agreement and including the sub- Income earned by the assessee in the
mission of the taxpayer before the AO, relevant year on sale of factory build-
the Tribunal held that there is transfer ing, plant and machinery, although not
of land and building. Therefore, the taxable as profits and gains of busi-
provisions of Section 50C of the Act ness or profession, is an income in
are clearly applicable to the facts of the nature of income of business though
present case. assessed as capital gain u/s. 50 and
RMC Readymix India Pvt. Ltd. (2011-
therefore assessee is entitled to set off
The Tribunal also distinguished the TIOL-81-ITAT-MUM)
brought forward business losses
decision in case of New Shailaja Co-
against the said capital gain. The assessee claimed a deduction in
op. Hsg. Soc. Ltd. relied on the tax-
respect of TDS paid on foreign remit-
payer, on the basis in that case the Tamilnadu Petroproducts Ltd. v. CIT
tance.
taxpayer transferred his entitlement for (328 CTR 454 (Mad.)
consideration to the builder. In that The amount represented the demands
Dealing with the scope of Sec. 80-IA(4)
case the Mumbai tribunal held that the raised by the ITO under section 201, in
(iv) of the Income tax Act, 1961, the
taxpayer has not incurred any cost of respect of alleged non deduction of tax
Madras High Court held that the as-
acquisition in respect of the right which at source from remittances made by
sessee, which is in the business of
emanated from the 1991 rules making the assessee to Hansons Pacific (S)
generation of electricity is entitled to
the taxpayer eligible for additional FSI. Pte Ltd, Singapore.
deduction u/s. 80-IA in respect of no-
Since there was no cost of acquisition
tional income from generation of elec- The assessee claimed deduction of
for additional FSI, the Tribunal, relying
tricity which was captively consumed this amount, which was an additional
on a couple of decisions including de-
by itself. payment by the assessee in respect of
cision of Supreme Court in case of CIT
remittances to Hansons, as expenses
v. B C Srinivasa Shetty [1981] 128 ITR Ahmedabad Urban Development
in the AY 2004-05. The assessee
294 held that no capital gain charge- Authority vs. ACIT (ITAT Ahmeda-
claimed that “the aforesaid payment is
able to tax has arisen. bad) [ITA No.1 837/Ahd./ 2010 (A. Y.:
not a payment of tax liability of the ap-
2009-10)]
However, in the instant case, there is a pellant but a payment to avail services
transfer of existing land and building. Section 194C defines “work” to include from Hansons which, as per the under-
“carriage of goods and passengers by standing with Hanson, the appellant
Considering the totality of the facts of
any mode of transport other than rail- was liable to bear”
the present case and certain clauses
ways” while Section 194-I defines
of the agreement and submission It is well settled law that a tax withhold-
“rent” to mean payment for use of
made by the taxpayer before the AO, ing liability raised under section 201, in
“plant” (which is defined in Section 43
in the instant case the taxpayer has respect of remittances made abroad,
to include vehicles). As the cars were
transferred the land and building to the cannot be allowed as a deduction.
owned and maintained by the contrac-
developer through a document, which
5

6. DIRECT TAXES
SNK
Judicial pronouncements
Reliance placed on the decision of the the assessee’s agreement to an addi- DIT v. Maersk Co Ltd as agent of
Supreme Court in the case of India tion on the basis of valuation by the Mr. Henning Skov (Utt High Court—
Aluminium Co Ltd Vs CIT (79 ITR Stamp Valuation Authority would not Full Bench) (ITA No. 26, 27, 28 & 29
514) where it was held that whether a be a conclusive proof that the sale of 2009)
payment made under statutory obliga- consideration as per agreement was
Employee not liable to pay s. 234B
tion because assessee was in default incorrect and wrong. It held that the
interest for failure to pay advance
could not constitute expenditure laid addition because of the deeming pro-
tax on salary
out for purposes of its business and visions does not ipso facto attract the
hence, same was not allowable under penalty u/s. 271(1)(c). In view of the The assessee, a foreign company,
that section. decision of the Apex Court in the case entered into a contract with ONGC
of CIT v. Reliance Petroproducts Pvt. pursuant to which it supplied techni-
Dy. CIT v. Dr. Satish B. Gupta (ITA
Ltd. (322 ITR 158)(SC), the penalty cians. The AO treated the assessee
No. 1482 (Ahd.) of 2010) [(2010) 42
as an agent of the technician – em-
SOT 48 (Ahd.)]
ployees and assessed their income
Penalty u/s. 271(1)(c) would arise only under the head “salaries”. Interest u/s
when return of income is scrutinized 234B was levied on the ground that
by the Assessing Officer and he finds the employees had not paid advance
some more items of income or addi- tax. The CIT (A) & Tribunal upheld the
tional income over and above what is claim of the assessee that the employ-
declared in return. Merely carrying out ees were not liable to pay advance tax
a survey u/s. 133A does not create as the tax was “deductible” at source
any liability against the assessee u/s 192. On appeal by the department,
which is created only through assess- the issue was referred to a Full Bench.
ment proceeding or through penalty levied was held to be not sustainable. The bench held that u/s 208, an em-
proceedings.
Dy. Commissioner of Income Tax, ployee is not liable to pay advance tax
Renu Hingorani v. ACIT (ITAT, Versus M/s Tecpro System Ltd., on salary because u/s 192 there is an
Mumbai)(ITA No. 2210/Mum./2010 [(2011) TMI 203082, ITAT New Delhi] obligation on the employer to
deduct tax at source. The employee
Penalty u/s. 271(1)(c) of I. T. Act is No penalty u/s 271(1)(c) for disallow-
cannot foresee that the tax deductible
not leviable on addition arising u/s. ance of Rs. 5,00,000/- against the to-
under a statutory duty imposed upon
50C. tal professional charges claim of Rs.
the employer would not be so de-
The Tribunal having noted that – (i) 90,74,652/- and additional deprecia-
ducted. The employee proceeds on
the AO had not questioned the actual tion on plant and machinery can be
the assumption that the deduction of
consideration received by the as- levied. Section 271(1)(c) mandates for
tax at source has statutorily been
sessee, but the addition was purely on levy of penalty for concealment or fur-
made or would be made and a certifi-
the basis of deeming provisions of nishing of inaccurate particulars, but
cate to that effect would be issued to
Sec. 50C of the Act; (ii) the AO had this is not the case that Assessing
him. If the employer fails to deduct tax
not given any finding that the actual Officer had found any mistake, but the
at source, the employee becomes li-
sale consideration was more than the case is that the assessee had himself
able to pay the tax directly. However,
sale consideration admitted and men- while preparing the details found the
the liability to pay interest remains
tioned in the sale agreement; and (iii) mistake and pointed out the same to
upon the person responsible to deduct
the assessee had furnished all the the Assessing Officer. Hence this can
tax at source. The department is enti-
relevant facts, documents/ material not be said to be a case of conceal-
tled to proceed against the employer
including the sale agreement, the ment or furnishing of inaccurate par-
u/s 201(1A). (Sedco Forex 264 ITR
genuineness and validity whereof was ticulars. The revenue’s appeal is dis-
320 (Utt) & other judgements fol-
not doubted by the AO, observed that missed.
lowed).
6

7. DIRECT TAXES
Judicial pronouncements (International Taxation)
SNK
Goodyear Tire and Rubber Com- detailed project report as a consultant. “(4) For the purposes of this article,
pany [2011] 11 taxmann.com 43 The assessee had to investigate the `fees for included services’ means pay-
(AAR) availability and viability of various ments of any kind to any person in
modern technologies to ensure most consideration for the rendering of any
Recently, the Authority for Advance
economical cost estimate without af- technical or consultancy services
Ruling (AAR) relying upon the principle
fecting the quality of work. The scope (including through the provision
laid down in Dana Corporation [2010]
of services included preparation of the of services of technical or other per-
186 Taxman 187 (AAR) and Amiantit
detailed project report, which covered sonnel) if such services :
International Holding Ltd [2010] 189
the entire design for rehabilitation and
Taxman 149 (AAR)., held that capital (a) are ancillary and subsidiary to the
strengthening of the existing carriage
gains provisions are not attracted in application or enjoyment of the
ways and required structures. It also
case of transfer of shares without con- right, property or information for
included the study of environmental
sideration. which a payment described in
resettlement and rehabilitation needs
paragraph (3) is received ; or
Further, the AAR held that the transfer as per the guidelines of the Govern-
pricing provisions in an international ment of India. (b) make available techni-
transaction can be applied only when cal knowledge, experience, skill,
The assessee was receiving charging
income is chargeable to tax in India know- how, or processes or con-
fees for providing the aforesaid ser-
and since in the present case no in- sist of the development and trans-
vices. The contention of the assessee
come was chargeable to tax in India fer of a technical plan or technical
was that the fee received from NHAI is
the question of applicability of Transfer design.”
to be treated as “fees for included ser-
Pricing provisions and withholding tax
vices” as prescribed in article 12(4) of It is not in dispute that the assessee
under Section 195 of the Income-tax
the Double Taxation Avoidance Agree- has rendered technical or consultancy
Act, 1961 (the Act) does not arise.
ment (DTAA) between India and Can- services. However, in order to get cov-
DIT v SNC Lavalin International Inc. ada. In terms of this article, the tax ered under this paragraph, it is also to
[ITA NO 326/09, ITA NO 529/09, ITA chargeable is at 15 per cent. The As- be proved, that the services were such
NO 1026/09, ITA NO 1027/09] sessing Officer, however, was of the which would fall under clauses (a) and
opinion that the fee charged for the (b) in the said paragraph. The case of
Mere use of technical design or plan
aforesaid project did not include “fee the assessee was that it falls in clause
without absolute transfer of right of
for included services”. He accordingly (b). As per clause (b) of paragraph (4),
ownership is taxable as fees for in-
was of the opinion, that the income the services had to be of the following
cluded services under Article 12 of
which was derived as fee for technical nature, namely, (i) making available
the Indo-Canadian Treaty and not as
services was chargeable to tax as per technical knowledge, experience, skill,
fees for technical services as per
the provisions of section 9(1)(vii) read know-how or processes or; (ii) services
the provisions of s 9(1)(vii) read
with section 115A of the Act. As per consisting of development and transfer
with s 115A.
this section, the tax chargeable is at 20 of a technical plan or technical design.
The brief facts in this case are that the It cannot be disputed that these techni-
per cent. The Tribunal has however,
assessee is a non-resident company cal/consultancy services provided by
accepted the contention of the as-
engaged in the business of providing the assessee falls under the second
sessee and has held that the tax pay-
consultancy for infrastructure projects. category, i.e., development and trans-
able by the assessee on the aforesaid
It had entered into an agreement with fer of technical plan or technical de-
fee would be at 15 per cent.
the National Highway Authority of India sign.
(NHAI) and under the said agreement The question, in these circumstances,
that, arises for consideration is as to The Tribunal has relied upon the afore-
the assessee was to provide technical
whether the services provided by the said Treaty in support of its conclusion
drawings and reports to NHAI to en-
assessee would be covered by para- and rightly said so. The Delhi High
able them to use the said technology
graph (4) of article 12. This provision Court, thus, hold that the term
for its infrastructure projects,
reads as under ([1998] 229 ITR (St.) “transfer” as used in article 12(4) does
which was funded by the World Bank.
44, 58) : not refer to absolute transfer of right of
The scope of the work was to carry out
7

8. DIRECT TAXES
Judicial pronouncements (International Taxation) / / Circulars / Notification
SNK
ownership. It refers to transfer of tech- in nature. Even interest assessable
nical drawings or designs by the resi- under “other sources” can qualify.
dent of one State to the resident of the
Circulars / Notifications
other state, which is to be used by or
for the benefit of the resident of the Circular no. 1/2011 dated 6th April,
other state. The said article 12(4)(b) 2011:-
does not contemplate transfer of all Vide circular no. 1/2011 the CBDT has
rights totally or interest in such techni- provided the explanatory notes to the
cal design or plan. Even where the provision of Finance Act, 2010
technical design or plan is transferred
Circular no. 2/2011 dated 27th April,
for the purpose of mere use of such ACIT v. Clough Engineering Ltd.
2011:-
design or plan by the person of the (ITAT Delhi - SB) [I.T.A No. 4771
other contracting State and for which (Del)/2007 Assessment year: 2003- In supersession of the circular No.
the payment is to be made, article 12 04; I.T.A No. 4986(Del)/2007 Assess- 285, dated 21-10-1980, the Board
(4)(b) would be attracted. ment year: 2003-04] prescribed the procedure for regu-
lating refund of amount paid in ex-
Sapient Corporation Pvt. Ltd. V. The assessee, an Australian company,
cess of tax deducted and/or de-
DCIT (ITAT Delhi) (ITA No. 5263/ had a PE in India from which it carried
ductible in respect of TDS on resi-
Del./2010) on business in India. The assessee
dents covered under sections 192 to
received interest on income-tax refund
The assessee claimed that its interna- 194LA of the Income-tax Act, 1961.
of TDS. While the assessee claimed
tional transactions of software develop-
that the interest was taxable on gross The excess payment to be refunded
ment was at arms length under TNMM
basis at 15% under Article XI(2) of the would be the difference between:
on the basis that its average operating
DTAA, the AO & CIT(A) claimed that
profit ratio (OP/TC) was higher than (i) the actual payment made by the
the interest was “directly connected
that of 10 comparable companies. The deductor to the credit of the Cen-
with the PE” and so assessable under
TPO & DRP rejected a few compara- tral Government; and
Article VII. On appeal, the issue was
bles on the ground that they were loss-
referred to the Special Bench. The (ii) the tax deductible at source.
making and recomputed the OP/OC of
Special Bench, deciding in favour of In case such excess payment is dis-
the other comparables at a higher rate.
the assessee and held that under Arti- covered by the deductor during the
Before the Tribunal, the assessee
cle 11(4) of the DTAA, interest from financial year concerned, the present
claimed that if loss making companies
indebtedness “effectively connected” system permits credit of the excess
were excluded, a super profit earning
with a PE of the recipient is taxable payment in the quarterly statement of
company should also be removed from
under Article 7 and not under Article TDS of the next quarter during the fi-
the comparables. The Tribunal uphold-
11. Though the interest was connected nancial year. However, in case, the
ing the plea held that when loss mak-
with the PE in the sense that it has detection of such excess amount is
ing companies have been taken out
arisen on account of TDS from the re- made beyond the financial year con-
from the list of comparables by the
ceipts of the PE, it was not “effectively cerned, such claim can be made to the
TPO, Zenith Infotech Ltd. which
connected” with the PE either on the Assessing Officer (TDS) concerned.
showed super profits should also be
basis of asset-test or activity-test. The However no claim of refund can be
excluded. The fact that assessee has
payment of tax was the responsibility made after two years from the end of
himself included in the list of compara-
of the foreign company and the fact financial year in which tax was deducti-
bles, initially cannot act of estoppel
that it was discharged by way of TDS ble at source.
particularly in light of the fact that the
did not establish effective connection
AO had only chosen the companies However, to avoid double claim of TDS
of the indebtedness with the PE. In
which are showing profits and had re- by the deductor as well as by the de-
order to be “effectively connected”, it is
jected the other companies which ductee, the applicant deductor shall
not necessary that the interest income
showed loss (Quark System vs. DCIT establish before the Assessing Officer
has to be necessarily business income
38 SOT 307 (SB) followed). that:
8

9. DIRECT TAXES / INDRECT TAXES
Circulars / Notification / Judicial Pronouncements
SNK
(i) it is a case of genuine error and INDIRECT TAXES Input services used outside factory
that the error had occurred inad- eligible for Cenvat Credit if nexus
Judicial Pronouncements
vertently; with ‘manufacture’ is established.
Union Of India v. Ind. Swift Labora-
(ii) that the TDS certificate for the re- A manufacturer of cement claimed
tories Ltd. [(2011) 265 ELT 3 (SC)]
fund amount requested has not Cenvat credit on repairs and mainte-
been issued to the deductee(s); Cenvat Credit taken wrongly and nance service of river pump used for
and utilized attracts interest from the generation of electricity outside the
date of availment and not from the factory. Such electricity was used in
(iii) that the credit for the excess
date of utilization. Rule 14 of Cen- the manufacture of final product. Cen-
amount has not been claimed by
vat Credit Rules being unambigu- vat Credit was denied on the basis that
the deductee(s) in the return of
ous does not require to be read the services are received outside the
income or the deductee(s) under-
down. factory premises and did not have
takes not to claim such credit.
Rule 14 specially provides for recovery nexus with the manufacture of final
Further prior administrative approval of products.
of interest where Cenvat Credit is
the Additional Commissioner or the
taken or utilized wrongly by the manu- The definition of “Input Services” does
facturer or the service provider or re- not deny credit if services are utilized
funded erroneously to either of them. outside the factory premises. The
The High Court misunderstood this nexus in this case with the manufac-
provision and wrongly read it down as ture of final product is established indi-
statutory provision in generally read rectly. In the case of the appellant for
down only when the same is capable the similar issue, the Tribunal had al-
of being declared unconstitutional or lowed Cenvat credit. Input services
illegal. No harmonious construction is used outside factory premises were
required to be given to the aforesaid eligible.
provision which is unambiguous and
Somaiya Organo Chemicals v.
exits all by itself. It is not permissible
Commissioner (TDS) concerned shall Commr. Of C.Ex. & Cus. Auran-
to import provisions of taxing statute so
be obtained, depending upon the gabad [2011 (21) STR 114 (Tri-
as to supply any assumed deficiency.
quantum of refund claimed in excess Mumbai)]
of Rupees One Lakh and Rupees Ten JMC Educational Charitable Trust v.
In case of export, Cenvat Credit of
Lakh respectively. CC Ex., Trichy [(2011) 21 STR 421
input service used for outward
(Tri – Chennai)
Note: transportation is eligible.
Distant education programme by an
This circular will not be applicable to The appellant paid service tax on the
institution analogical to a parallel
TDS on non-residents falling under insurance policy in respect of goods
college is not in the nature of com-
sections 192, 194E and 195 which are transported from the factory to the port
mercial coaching or training ser-
covered by circular No. 7/2007 issued of export.
vice.
by the Board.
In case of export of goods, it has been
Since the kerala High Court had held
Notification No. 18 dated 5th April, held that input service includes ser-
that the provisions of service tax laws
2011:- vices rendered for outward transporta-
for levy of service tax on parallel col-
tion upto place of removal of goods
Vide notification No. 18, CBDT had leges are ultra virus Article 14 of the
and service tax paid to facilitate goods
made necessary changes in Income Constitution of India, the appeal was
to reach the place of removal has to be
tax Rules, 1962 for incorporating new allowed.
eligible for benefit of CENVAT credit.
forms SAHAJ (ITR-1), ITR-2, ITR-3,
CCEX., Nagpur v. Ultratech Cement
SUGAM (ITR-4S), ITR-4, ITR-5, ITR-6,
Ltd. [(2011) 21 STR 297 (Tri. Mum-
ITR-7 and ITR-V relevant to A.Y. 2011-
bai)]
12.
9

10. INDIRECT TAXES
Judicial Pronouncements / Circular / Notifications
SNK
Insurance service was taken by the be used to deny the substantive con- ous period of less than three months
factory to the port of export. Thus, in- cession. when the declared tariff for providing of
put service was used for the business such accommodation is less than ru-
Circulars / Notifications
activity undertaken up to the place of pees 1,000/- per day from the whole of
removal of goods. The Tribunal held Notification No. 26/2011-ST dated the service tax leviable thereon.
that the appellant was entitled to take 25th April, 2011
Notification No. 32/2011-ST dated
input service credit. CBDT vide notification no. 26/2011 25th April, 2011 :-
st
Cenvat credit is available on air- appointed 1 day of May, 2011 as the
Vide the above notification, the exemp-
ticket booking service for paying date on which the provisions of Fi-
tion provided vide no. 25/2006 dated
excise duty on manufacture of final nance Act, 2011 shall come in force.
13th July, 2006 has been withdrawn.
products. Thus all new services which were in-
Thus the taxable service provide by a
troduced in the Finance Act, 2011 will
The respondent was engaged in the practicing chartered accountant, a
become taxable service from 1st day of
activity of manufacture. Various air practicing cost accountant and a prac-
May, 2011.
journeys were undertaken by employ- ticing company secretary respectively,
ees for business purpose. Notification No. 30/2011-ST dated in his professional capacity, to a client,
25th April, 2011:- relating to representing the client be-
Revenue in appeal claimed that air-
Vide the above notification 100% ex- fore any statutory authority in the
ticket booking service was not an input
emption from service tax has been course of proceedings initiated under
service as there was on nexus be-
provided to any hospital, nursing home any law for the time being in force, by
tween air-ticket booking service and
or multi-speciality clinic with effect from way of issue of notice would be liable
manufacturing activity. The respondent
01.05.2011 providing service to — to service tax with effect from 1st May,
contended that ‘the object of CENVAT
2011.
scheme is to allow credit on inputs (i) to an employee of any business
used in or in relation to manufacture of entity, in relation to health check- Notification No. 33/2011-ST dated
final product and to allow credit on in- up or preventive care, where the 25th April, 2011 :-
put services used in or in relation to payment for such check-up or pre- Vide the above notification, exemption
manufacture of final product as well as ventive care is made by such busi- has been provided to -
in relation to business of manufacture’. ness entity directly to such hospi-
Business activity cannot be restricted (i) any preschool coaching and train-
tal, nursing home or multi-specialty
to mere manufacturing activity and it ing;
clinic; or
covers all activities that are related to (ii) any coaching or training leading to
(ii) to a person covered by health in-
business. The term ‘ in relation to busi- grant of a certificate or diploma or
surance scheme, for any health
ness’ cannot be given a restricted degree or any educational qualifi-
check-up or treatment, where the
meaning and expenses incurred as a cation which is recognized by any
payment for such health check-up
result of commercial expediency are law for the time being in force;
or treatment is made by the insur-
covered by the said term. The appeal
ance company directly to such when provided by any commercial
was allowed.
hospital, nursing home or multi- coaching or training centre from the
Manubhai & Co. v. CST, Ahmedabad specialty clinic. whole of the service tax leviable
[(2011) 21 STR 65 (Tri.Ahmd.)] thereon.
Notification No. 31/2011-ST dated
Non filing of prior declaration does 25th April, 2011:- Notification No. 34/2011-ST dated
not lead to rejection of rebate claim. 25th April, 2011 :-
Vide the above notification exemption
Failure to file declaration is not suffi- from Service tax has been provided in Vide the above notification, exemption
cient to hold that the assessee did not case of taxable service provided by a has been provided from so much of the
pay service tax on input services. Non hotel, inn, guest house, club or camp- service tax leviable thereon, as is in
observance of a procedural condition site, by whatever name called, for pro- excess of the service tax calculated on
was of a technical nature and cannot viding of accommodation for a continu- a value which is equivalent to a
10

11. INDIRECT TAXES
Circular / Notifications
SNK
percentage as mentioned here under surance company to pay service tax Circular No. 134/2011-ST dated 8th
of the gross amount charged by such either April, 2011 :-
service provider.
(i) on the gross premium charged to The said circular provides clarification
Service % a policy holder after deducting the regarding applicability of service tax
amount allocated for investment or exemption to Education Cess and
Services provided or to 30 savings on behalf of the policy Secondary and Higher Education
be provided, to any per- holder, if such amount has been Cess under notifications where ‘whole
son, by a restaurant, by
whatever name called, intimated to the policy holder; or of service tax' stands exempted.
having the facility of air-
(ii) 1.5 % of the gross premium According to section 95(1) of Finance
conditioning in any part
of the establishment, at charged by the life insurance com- (No.2) Act, 2004 and section 140(1) of
any time during the finan- pany to the policy holder. Finance Act, 2007, Education Cess
cial year, which has li-
and Secondary and Higher Education
cence to serve alcoholic Note :
beverages, in relation to Cess are leviable and collected as
serving of food or bever- The said options will not be available service tax, and when whole of service
age, including alcoholic where the entire premium paid by the tax is exempt, the same applies to
beverages or both, in its policy holder to the life insurance com-
premises; education cess as well. Since Educa-
pany is towards only risk cover in life tion Cess is levied and collected as
Services provided or to 50 insurance. percentage of service tax, when and
be provided, to any per-
Notification No. 36/2011-ST dated wherever service tax is nil by virtue of
son, by a hotel, inn,
guest house, club or th
25 April, 2011 :- exemption, Education Cess would also
campsite, by whatever be nil.
name called, in relation An amendment has been made in Ex-
to providing of accommo- port of Service Rules, 2005 whereby Circular No. 136/2011-ST dated 20th
dation for a continuous April, 2011 :-
the taxable service provided by a res-
period of less than three
months; taurant having facility of air- The said circular provided the ac-
conditioning and has license to serve counting Codes for the taxable ser-
Provided that this notification shall not alcoholic beverages and accommoda- vices introduced vide the Finance Act,
apply in cases where, - tion services provided by a hotel, inn, 2011.
guest house etc, shall be treated as
(i) the CENVAT credit of duty on in-
export in case such restaurant or hotel Service Account-
puts or capital goods or the CEN-
is situated outside India. ing Code
VAT credit of service tax on input
Service provided by a
services, used for providing such Notification No. 37/2011-ST dated
restaurant having air-
taxable service, has been taken 25th April, 2011 :-
conditioning and li-
under the provisions of the CEN- cense to serve alco-
An amendment has been made in
VAT Credit Rules, 2004; or holic beverages in rela-
Taxation of Services (Provided from
tion to serving of food
(ii) the service provider has availed Outside India and Received in India)
or beverage, including
the benefit under the notification of Rules 2006 whereby the taxable ser-
alcoholic beverages or
the Government of India in the vice provided by a restaurant having both, in its premises
Ministry of Finance (Department of facility of air-conditioning and has li- [Finance Act 1994,
Revenue), No. 12/2003-Service cense to serve alcoholic beverages Section 65(105)
Tax, dated the 20th June, 2003. and accommodation services provided (zzzzv)]
by a hotel, inn, guest house etc, shall Tax Collection 00441067
Notification No. 35/2011-ST dated
th be treated as received in India in case
25 April, 2011 :- Other Receipts 00441068
the restaurant or hotel is situated in
An option has been given to a life in- India. Deduct Refunds 00441069
11

12. INDIRECT TAXES
Circular / Notifications
SNK
tive list. is an exempt service will have retro-
Service Account-
spective effect).
ing Code • Credit of ineligible expenses
Service provided by should be denied upfront to avoid Key Action Points
a hotel, inn, guest any interest exposure. • Analyse whether this would neces-
house, club or sitate reversal/re-instatement of
Clarification – Scope of the term
campsite in relation
‘inputs’ credit pertaining to the past period
to providing of ac-
(depending upon the position
commodation for a In respect of ‘inputs’, it has been clari-
continuous period of taken earlier with respect to credit
fied that goods such as furniture and
less than three reversal pertaining to trading activi-
stationary used in an office within the
months[Finance Act ties)
factory would be construed to be
1994, Section 65
goods used in the factory. Thus, the • Formulate the strategy accordingly
same would be deemed to be used in and consequently, revise the tax
Tax Collection 00441070
relation to the manufacturing business returns.
Other Receipts 00441071
and hence credit of the same shall be Clarification – Availability of credit on
Deduct Refunds 00441072 allowed. services received before 1 April 2011
on which credit is not allowed now –
th
Circular No. 943/04/2011 dated 29 e.g. rent-a-cab service
April, 2011:-
It has been clarified that the credit on
The purpose of the said circular is to such services shall be available if their
summarize some of the key clarifica- provision had been completed before 1
tions issued vide the Circular and pos- April 2011.
sible action points on the part of the
Key Action Points
companies pursuant to these clarifica-
• Review the status of credit with
tions.
respect to services that have been
Key Action Points
Clarification – Negative list completed before 1 April 2011.
The list of goods and services for
• Re-evaluate expenses incurred in
the factory from credit eligibility
• Avail credit even if the booking/
which credit has been disallowed (such
perspective with special emphasis payment/ billing in respect of these
as catering, club services, etc.) is only
on expenses with respect to which services have been done on or
illustrative and not exhaustive. The
credit has been forgone till now. after 1 April 2011.
principle is that Cenvat credit is not
• Ensure that goods in respect of
• Analyse whether credit of Service
allowed when any goods and services
tax incurred on advance payments
are used primarily for personal use or which credit is intended to be
made before 1 April 2011 would be
consumption of employees. taken in terms of the amended pro-
available.
Key Action Points visions (e.g. furniture, stationary
items, etc.) are purchased against Clarification – Manner of determining
• Expense list needs to be analyzed
Excise invoice. ‘value’ of trading activities
not only to carve out those ex-
Clarification – Treatment of credit of It has been clarified that for calculating
penses which are specifically ex-
common inputs and input services the value of trading:
cluded in the definition but also
used in trading before 1 April 2011
those expenses, which though not • As regards application of specific
specifically covered, satisfy the It has been clarified that the same
principle of LIFO, FIFO, etc. – the
principle mentioned in the preced- could be availed subject to prescribed
method normally followed by the
ing para. restrictions as were applicable during
concern for its accounting pur-
• It needs to be analyzed whether the relevant period. This clarification
poses as per generally accepted
seems to suggest that trading was all
expenses incurred by employees accounting principles should be
along an ‘exempt service’ (i.e. the re-
during business/ official visits used.
cent amendment clarifying that trading
would get covered under the nega-
12

13. INDIRECT TAXES / OTHERS
Circular / Notifications
SNK
• With respect to the taxes and year Stamp Act, 1899 as applicable in The Supreme Court held that a gift of
end discounts – generally ac- Delhi. immovable property made by a Muslim
cepted accounting principles need is valid even if it is not registered un-
The High Court observed that there is
to be followed in this regard. All der the Transfer of Property Act or the
no express provision for charging
taxes for which set off or credit is Stamps and Registration Act. The
stamp duty on the increase in author-
available or are refundable/ re- apex court said though the TP Act
ized share capital in Schedule IA of
funded may not be included. Dis- mandates registration of a gift, the
the Delhi Stamp Act.
counts are to be included. same would not apply to a Muslim do-
A statute authorizing the levy of stamp nor as the community has been ex-
Key Action Points
duty is in the nature of fiscal statute, empted from the provision.
• Ascertain the accounting policy therefore Stamp duty cannot be levied A bench of justices R M Lodha and S
adopted by the Company and except by the authority of law. The S Nijjar in a judgment quashed a ruling
compute ‘sale price’ and ‘cost of provisions of a fiscal statute admit of of the Andhra Pradesh High Court that
goods sold’ accordingly. strict construction. the property gifted by late Shaik Da-
Further it has been clarified that as per The High Court also relied on the Su- wood to one of his sons Mohammed
Rule 6(4) no credit can be availed on preme Court judgment in the case of Yakub was not valid as it was not reg-
capital goods used exclusively in AV Fernandez v. State of Kerala (AIR istered under the law.
manufacture of exempted goods or in 1957 SC 657) and Commissioner of The bench said the three essentials of
providing exempted service. Goods in Wealth Tax v. Ellis Bridge Gymkhana a gift under Mohammadan Law are (i)
respect of which the benefit of an ex- [1998] 1 SCC 384 (SC), where it was declaration of the gift by the donor (2)
emption under notification No. 1/2011- held that the rule of construction of a acceptance of the gift by the donee
CE, dated the 1st March, 2011 is charging section is that before taxing and (3) delivery of possession.
availed are exempted goods [Rule 2 any person, it must be shown that he
“Though the rules of Mohammadan
(d)]. Taxable services, whose part of falls within the ambit of the charging
Law do not make writing essential to
value is exempted on the condition section by clear words used in the
the validity of a gift, an oral gift fulfilling
that no credit of inputs and input ser- section. No one can be taxed by impli-
all the three essentials makes the gift
vices, used for providing such taxable cation.
complete and irrevocable. However,
service, shall be taken, are exempted
In the absence of any specific provi- the donor may record the transaction
services [Rule 2(e)]. Hence credit of
sion in the Act for levy of stamp duty of gift in writing.
capital goods used exclusively in
on the increase in authorized share
manufacture of such goods or in pro- Circulars / Notifications
capital it is not possible to legally sus-
viding such service is not allowed.
tain the demand raised by the Collec- RBI
The Circular should be seen as a tor of Stamps.
Notification No. RBI/2010-11/511
timely step on the part of the authori-
A mere fact that the Petitioner earlier dated 04.05.2011
ties to clarify various issues arising out
paid stamp duty on increase in author-
of the amendments. Further, most of As per the current instructions, mobile
ized share capital cannot act as estop-
these clarifications should be wel- banking transactions up to Rs. 1000/-
pel against the Petitioner.
comed by the industry. are permitted without insisting on end-
However, court has clarified that the to-end encryption. As per the above
OTHERS decision will not enable the Petitioner notification, RBI has decided to in-
COMPANY LAW to claim refund of any stamp duty paid crease the limit of such transactions
earlier. without end-to-end encryption to Rs.
S.E. Investment Limited (CO. APPL.
5000/- with effect from the date of this
(M) 38/2011 & CO. APPL. 293/2011) OTHER
circular. Banks are instructed to en-
Delhi High Court in the said case held Hafeeza Bibi & Ors. Versus Shaikh sure & place adequate security meas-
that increase in authorised Capital is Farid (Dead) by LRs. & Ors. [Civil ures and velocity limits based on their
not liable to stamp duty under Indian Appeal No. 1714 of 2005] own risk perception.
13