Jurisprudentiol– Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Lower authorities ought to have made a sincere and an independent attempt to get at the real nature of case rather than follow the dictates of the range officer – Tribunal orders remand

IT is a common occurrence that the adjudicating authority almost always takes assistance of the staff working under him to prepare orders and at times seeks report of the jurisdictional authorities on the submissions made by the noticee.

A new phenomenon is seen in the present case where, both, the original authority and the first appellate authority are swayed so much by the report of the jurisdictional authorities that they chose to blindly follow the same rather than putting their grey cells to task.

Income Tax

Dividend received by a company resident in India, from a company in United Kingdom, tax withheld cannot be treated as a TDS which can be refunded: The refund of the same amount cannot be re-agitated or taken up again for fresh decision in other proceedings for that very assessment year - ITAT

SUBJECT to the provisions of the law of India regarding the allowance as a credit against Indian tax of tax paid in a territory outside India (which shall not affect the general principle hereof), the amount of the United Kingdom tax paid, under the laws of the United Kingdom and in accordance with the provisions of this Convention, whether directly or by deduction, by a resident of India, in respect of income from sources within the United Kingdom which has been subjected to tax both in India and United Kingdom shall be allowed as a credit against the Indian tax payable in respect of such income but in an amount not exceeding that portion of Indian tax which such income bears to the entire income chargeable to Indian tax.

Customs

EXIM POLICY – penalty under Foreign Trade (Development & Regulation) Act, 1992 – since Exim scrip was issued after new Act had come into force, penalty cannot be imposed under old Act: Madras High Court

SINCE no statutory proceedings were initiated before new Act and what is saved was only the penalty, confiscation, punishment in respect of any contravention under the old Act. It is not the case of the respondents that there were any proceedings pending before the new Act came into force.

See our columns Monday for the judgements