Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

Option of payment of reduced penalty under Section 11AC to be mentioned in adjudication orders in terms of Board Circular dated 22.05.2008 : High Court

SINCE the demand relates to the period subsequent to 28.09.1996 and the earlier provision of Section 11AB was not considered by the Tribunal, the impugned order of the Tribunal is set aside on this point and remand the matter to the Adjudicating Authority to decide the whole issue with regard to charging of interest keeping in mind the provisions contained in unamended Section 11AB of the Act.

Income Tax

Reassessment - mere non-discussion of an issue in assessment order does not conclusively mean that the AO did not form his opinion over that – reassessment based on change of opinion is not valid - ITAT

THERE is no hard and fast rule to determine the question of the AO forming his opinion or not. It will depend upon the facts of each case. But one thing is certain that mere non-discussion of an issue in the assessment order does not conclusively mean that the AO did not form his opinion over that.

Customs

Duty Free Shop - show cause notice issued without any tangible evidences and based only on inferences involving unwarranted assumptions is vitiated by an error of law: It is well settled that when an allegation is made, burden is on person who alleges, to prove it beyond doubt: Madras High Court

IT is well settled that when an allegation is made, the burden is on the person who alleges, to prove it beyond doubt and the burden can be discharged only on the basis of concrete evidence and admission statements from the persons concerned or opinion from a technical expert. When there are variations in the signatures, a technical expert could have certified whether both the signatures belonged to the same person or not, which is admittedly not done in this case.

Service Tax

GTA Service – Service tax liable to be paid only when service is received from GTA and not truck owners or transporters – Legislative intent is not to tax truck owners or truck operators – In absence of a finding that appellants had received service of transport of goods from any GTA demand of service tax and penalties liable to be set aside.

THE impugned services had been provided by goods transport owners and goods transport operators. These services could not be subjected to tax in view of the Budget Speech of the Finance Minister, which spelt out the legislative intent. The appellant had wrongly paid an amount of Rs.63,61,833/- (Rupees Sixty three lakhs one thousand eight hundred and thirty three only) which was due to be refunded. The levy under the category of GTA was attracted only when there was a relationship of Agency between the service provider and owner of the goods carriage or the operators of the goods carriage. As per the impugned order, the appellant had received services from goods transport operator. This activity did not attract levy under “Goods Transport Agency”.

See our columns Tomorrow for the judgements