Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Undervaluation of dutiable IT peripherals by overvaluing the non duty paid driver software – 30% of duty amount deposited before Commissioner( A) sufficient – Stay granted - CESTAT.

After noting that in terms of that order the assessee had deposited 30% of the total amount of duty, the CESTAT observed that the same would suffice the pre-deposit requirement of the present appeal and accordingly granted a waiver of pre-deposit and stayed recovery in respect of the balance amounts. It was also directed that the deposit of Rs. 14 lakhs should be maintained till final disposal of the present appeals.

Settlement of case before Settlement Commission and being granted immunity from penalty and prosecution – whether supplementary invoices issued are cenvattable –Stay granted by waiving pre-deposit of Rs.14.7 Crores - CESTAT

The Commissioner categorically held that, where immunity was granted by the Settlement Commission to the input-supplier against penal liability under Section 11AC of the Central Excise Act, it was not correct to deny the Cenvat credit in respect of such goods to the manufacturer of final products where the latter claimed the benefits on the basis of supplementary invoices issued by the input supplier. This decision of the Commissioner at Chennai squarely covers the issue involved in the present case, in favour of the appellant.

Income Tax

Defects in returns filed by FII - AO declares them invalid as defects found in returns not listed out in relevant Section - Types of defects enumerated in Sec 139(9) are only inclusive, and not exhaustive - defect memo to be issued - AO's decision to invalidate defective returns not sustainable: ITAT

DEFECTS in income tax returns are a common phenomenon. And these defects can be attributed to various reasons, including an oversight. To cure such defects, the two relevant provisions which apply are Sec 292B and Sec 139(9). These provisions are there in the I-T Act to assist the assessee to rectify the defects so that the return is not declared invalid. Sec 139(9) lists out in details various types of defects which can be cured. But what happens when a particular type of defect is not found in the list? Does it render the return invalid and non est ? NO is the Tribunal's answer. In an interesting defect-focussed decision the Tribunal has held that the list provided under Sec 139(9) is not exhaustive. The Legislature has provided an inclusive list which brings under its sweep many other types of defects which are not mentioned there.

Monday is a Holiday

See our columns Tuesday for the judgements