Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

Provisional Assessment possible only at request of assessee or direction of officer - Rejection of refund claim upheld: High Court

THE solitary question before the HIGH Court was, whether the appellant had really deposited excise duty provisionally, and, in case the answer is in the affirmative, whether the refund claimed by the appellant was within the period of time stipulated under Section 11-B of the Central Excise Act.

Income Tax

Can maintenance service charge which was treated as business income in earlier AYs, be treated as fee for technical services? - NO, change of opinion based on same set of facts is legally not sustainable: ITAT

FOR the Revenue which is often seen very keen to undertake re-assessment, change of opinion has often proved too costly. Even in this case the fate is not different for the Revenue. The issue is - Whether reopening of an assessment, completed u/s 143(3), after the expiry of four years from the end of relevant assessment year, is permissible when the AO has taken a different view in subsequent year as regards the taxability of nature of income received by the non-resident company. Whether maintenance service charge which was treated as business income in earlier AYs can be treated as FTS , taxable under Sec 44D read with Sec 115A .

Customs

Legal heir of deceased licensee should be a major as also ‘H' card holder so as to be permitted to work as a CHA - applicant, though a major, is not possessed of ‘H' card holder and hence she cannot be permitted to work as a CHA - in circumstances, further requirement of having to pass examination is irrelevant - Application dismissed: CESTAT

ACCORDING to sub-regulation (2) where as licence which was granted to a person under the CHALR, 2004 for operating as a CHA in any Customs area has ceased to be in force because of the death of that person, his legal heir, who is a major and a ‘H' card holder may be permitted to work as a CHA with the approval of the Commissioner and such legal heir has to pass the prescribed examination within a period of two years from the date of death of the original licensee.

See our columns Tomorrow for the judgements