Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

Commissioner (Appeals) is bound by order of CESTAT, especially in assessee's own case – High Court

Judicial propriety demands that when there is an order of higher forum available in the assessee's own case, the same has to be followed by the lower authority unless certain distinguishing features are pointed out by such lower authority or the order of the higher authority is reversed or suspended.

Income Tax

Advance Ruling - Foreign Tax Resident providing seismic data processing to ONGC - income derived in India is covered under provisions of section 44BB - AAR

The very same issue came up for consideration in a recent ruling of this Authority in Geofizyka Torun Sp.Zo.o . Poland - (2009-TIOL-31-ARA-IT), In this case, Section 44BB , 9(i)(vii) and 44DA have been exhaustively dealt with along with the related case laws. The facts and questions raised in both the cases are identical and, therefore, there is no need to enter into further discussion on the legal issue. This Authority held in this case that section 44BB is attracted and the Revenue's contention has been rejected.

Customs

Appeal without authorisation by Committee of Commissioners –cannot be cured after dismissal of appeal – High Court

A perusal of the file shows that the Revenue has proceeded on the premises that on 2.2.2009 it has been given time to cure the defect by 9.2.2009 as the next date fixed is 18.2.2009. The aforesaid premise is factually incorrect as the appeals were dismissed vide order dated 2.2.2009. In any case once the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law. Ordinarily, we do not non suit the Revenue for a procedural lapse but this case is of such a nature that lapses one after the other has been committed. Therefore, the appeals are wholly without merit and are liable to be dismissed.”

See our columns Tomorrow for the judgements