Jurisprudentiol – Friday's cases

By Vijay Kumar

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

FERA or FEMA? For cases already initiated prior to 31.5.2002, provisions of FERA applicable – Dismissal of appeal by Tribunal on limitation upheld – High Court

Under Section 52 of the FERA, it is clear that the outer limit for filing an appeal is 90 days; beyond the period of 90 days the Court has no power to condone the delay. The Appellate Tribunal on 26.3.2005, had rightly dismissed the appeal on this ground by invoking Section 52 (2) of the FERA holding that the delay of 118 days could not be condoned; the outer limit being 90 days. The said order calls for no interference.

Income Tax

Disallowance u/s. 40A(3) is applicable for each payment and not for the aggregate of various payments made to same party during one day; Sec. 69C cannot be applied on mere presumption or suspicion. – ITAT Third Member

The Assessee's plea against the disallowance u/s. 40A(3) was that each payment was below, Rs.20,000/-, and, therefore, Sec. 40A(3) is not applicable. However, as per the A.O., since the payment of one day exceeded Rs. 20,000/-, therefore, Sec. 40A(3) was applicable. The C.I.T.(A) also sustained the disallowance upholding the views of the A.O. Unfortunately, both the Members either while confirming the disallowance or while deleting the disallowance have not considered the aspect on which disallowance was made by the A.O.

Customs

Extra Duty Deposit cannot be demanded when provisional assessment could not be completed in four months. The reasons for failure by proper officer in finalising assessment is immaterial; Board Circulars binding on Customs officers – High Court

Admittedly, in the instant case, the provisional assessment has not been finalised. The contention of the respondent is that investigations are still going on. The further contention is that investigations could not be completed for reasons beyond their control and therefore, it was open to the proper officer to demand the extra duty deposit as demanded. The reasons for failure by the proper officer in finalising the assessment is immaterial, as that is no ground to discontinue the extra duty deposit.

See our columns Tomorrow for the judgements