Jurisprudentiol–Tomorrow's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Order-in-revision cannot go beyond the original show cause notice – Tribunal restores original order, in appeal by assessee - CESTAT

COMMISSIONER has acted as adjudicating authority and not as a Revision authority as he has issued an order-in-original and not order-in-revision and the whole tenor of the order is determining of the issue afresh rather than revising the order.

Income Tax

Excess tax paid by employer on behalf of non-resident employee - refund - Revenue treats same as 'perquisite' taxable u/s 17(2)(iv) - Such refund should have gone to employer who paid the tax and cannot be taxed even in hands of employee as same is exempt u/s 10( 5B ): ITAT

WRONGS, mistakes and errors are well known history-twisters as they change the course of history by their presence. In the taxation world, their presence is widely seen as more imposing and majestic, and that is how we come across some of the most litigated tales of demand, penalty, interest and also refund. The instant case is a tale of Income Tax refund which did not go to the 'person' who had paid that tax but to someone in whose name the tax was paid. And, thus begins the tale of litigation and hassles. Although the person who received the refund did remit the same to the one who had paid the tax on his behalf, but for Revenue it made no sense and it decided to tax the same in the hand of non-resident receiver as 'perquisite', taxable u/s 17(2)(iv). However, the Tribunal has held that the excess tax paid by the employer on behalf of the non-resident employee is to be refunded to the employer and cannot taxed in the hands of the employee as 'perquisite'. Even if it is held that excess amount also had the same character as amount "due" and "payable", even then it is exempt u/s 10(5B) and cannot be charged in the hands of the assessee, it added.

Customs

Re-import of goods exported availing Notification 94/96- Cus whether to be held as goods having suffered CVD under s. 3 of Customs Tariff Act and therefore leviable to SAD under s. 3A thereof – Matter goes to larger bench – CESTAT

IRONICALLY, while the larger issue of whether to regard the duty payable on re-imported goods as CVD and further leviability of SAD thereon is referred to a Larger Bench for resolution, the Tribunal went ahead and remanded the matter of leviability of interest on SAD and delayed payment of duty to the Appellate Commissioner. It will be interesting to see if the Appellate Commissioner can decide this issue when the larger issue of CVD and SAD itself has been referred to the Larger Bench.

See our columns Tomorrow for the judgements