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

ADJUDICATING authority directed to provide options to the assessee to pay interest and penalty @25% within 30 days in terms of provisos to Section 11AC – Assessee to comply with the said directions failing which they would be liable to pay 100% penalty.

Income Tax

India-UAE DTAA - payments to non-resident for technical services - TDS exemption sought - AO denies - For availing tax treaty benefits, non-resident need not be a tax-paying company - DTAA benefits cannot be denied: ITAT

A number of cases have now been decided by the ITAT to the effect that a resident of UAE would be entitled to the treaty benefits even if no tax was paid in UAE. While doing so, it took a stand different from the initial stand taken by the Advance Ruling. In subsequent cases, however, the Advance Ruling held that while actual payment of tax was not necessary, in order to claim the benefits of the treaty, a person had to be liable to tax in UAE.

Customs

Amendment of consignee's name in IGM – Deputy Commissioner order refusing to change names set aside; directed to consider afresh in a reasoned order: High Court

SUB section (3) of Section 30 lays down that if the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete, and that there is no fraudulent intention, he may permit it to be amended or supplemented. It is now well settled that the power of judicial review of the Court under Article 226 of the Constitution of India includes all cases where the orders are passed by the authorities or even where the authorities have failed to exercise jurisdiction vested in them. It may be stated that the statutory discretion cannot be fettered by self created rules or policy.

See our columns Tomorrow for the judgements