Jurisprudentiol– Wednesday's cases

By Vijay Kumar

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

Penalty - vires of retrospective insertion of sub-section (1B) in Sec 271 vide Finance Act, 2008 upheld; It is not violative of Article 14 of Constitution: High Court

The position of law both pre and post amendment is similar, in as much, the Assessing Officer will have to arrive at a prima facie satisfaction during the course of proceedings with regard to the assessee having concealed particulars of income or furnished inaccurate particulars, before he initiates penalty proceedings.

Prima facie 'satisfaction' of the Assessing Officer that the case may deserve the imposition of penalty should be discernible from the order passed during the course of the proceedings. Obviously, the Assessing Officer would arrive at a decision, i.e., a final conclusion only after hearing the assessee.

FERA

Culpable state of mind of the petitioner should be proved beyond reasonable doubt and not on the basis of assumptions – Foreign Currency seized ordered to be returned – penalty quashed: Delhi High Court

The findings of the respondent are based on its own presumptions and assumptions and cannot be termed to be based on legal principles and therefore the Court would be justified in inferring with such perverse findings. The findings have been arrived at without any basis which has been successfully rebutted by the petitioner and in the circumstances it has to be held that adjudication order is not sustainable.

Central Excise

Mere absence of clearance from COD or delay in obtaining clearance from COD cannot be a ground for dismissal of appeal or any application – CESTAT recalls order and restores appeal

It is settled law that the remedy of appeal is a creation of statute and no such remedy can be availed unless the statute under which the proceedings are initiated specifically provides for such remedy.

At the same time, once such a remedy is provided under a statute, the right in that regard arises with the initiation of the original proceedings themselves.

See our columns Tomorrow for the judgements