Jurisprudentiol– Monday's cases

By Vijay Kumar

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

Another Revenue appeal fails in EZB due to lack of jurisdiction of Review Committee – An authority is appointed and vested power in the manner known to the law through an Official Gazette, any deviation thereto makes the appointee powerless and incompetent to exercise jurisdiction – When review orders have no locus standi , revenue appeals are liable for dismissal at the threshold – CESTAT

AFTER dismissal of countless Revenue appeals by the EZB last year, citing lack of jurisdiction by the Review Committees in recommending appeals to be filed before the Tribunal, which even led to the Member, CBEC being summoned for personal appearance in one of the cases, the dismissal spree continues in the EZB without any respite. And even the President's judgement is held to be per incuriam.

Income Tax

Assessee is NIIT franchisee - payments made for providing copyrighted material, proprietary information and technical knowhow are hit by provisions of Sec 194J but no TDS is deductible on royalty, courseware consumables and educational aids provided by licensor: ITAT

TDS is a tedious issue not only for the deductors but also tax collectors and policy formulators. Even as a hot controversy continues on half-baked introduction of new TDS challan - Form 17, the ITAT in the case of a NIIT franchisee has held that the payments made by the assessee to NIIT for allowing the use of trade mark and providing copyrighted material, proprietary information and a substantial body of technical knowhow relating to the location, design and operation of the computer education centres are hit by the provisions of Sec 194J as such services catered to the assessee do qualify as technical service. It is also a settled law that technical services also include professional services. However, the Tribunal also ruled that the payments made for courseware consumables, educational aids and royalty cannot be subjected to TDS provisions.

Customs

One or even more illegalities by one or by some persons cannot create any right in favour of others to commit or to insist for commission of similar illegality by others - In an appeal, the issues cannot be decided on hypothetical basis – CESTAT

ASSUMING that the Department has granted such exemption in some of the cases either intentionally or otherwise, or negligently or carelessly or illegally that would not create any right in favour of the appellant to claim the benefit under the said exemption notification contrary to law. One or even more illegalities by one or by some persons can not create any right in favour of others to commit or to insist for commission of similar illegality by others. Rule of parity cannot be invoked to claim illegal gratification.

See our columns Monday for the judgements