Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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

In absence of ingredients of s.11AC of CEA, 1944, mandatory penalty cannot be imposed: CESTAT

IN an earlier round of litigation initiated by the Revenue, the CESTAT had rejected the appeal holding that as the respondent had paid the duty and interest before issuance of show-cause notice, no penalty can be levied under section 11AC on the respondent. Incidentally, at the material time, there were many CESTAT decisions which took such a view in the matter.

Income Tax

Does provision of Sec 68 stands on different footing in case of share application money, and burden of assessee stands discharged on submission of names and addresses of applicants without proving their creditworthiness - YES, says HC

SHARE application money is generally taken with a pinch of salt by our taxmen. The Revenue often tends to believe that this is one of the sure shot routes to channelise own fund into the company or to convert black into white money. Anyway, the issue in the instant case is - Whether provision of section 68 stands on different footing in the case of share application money, and the burden of the assessee stood discharged on the submission of names and addresses of the share applicants, without proving their creditworthiness. And the High Court decision is YES.

Customs

Imbalance between existing strength of Members and huge pendency of appeals - Early hearing application cannot be considered, ignoring these factors - Substantive issue different from that involved in appellant's own case decided by WZB, Ahmedabad - EH application dismissed: CESTAT

THE pendency of appeals at Mumbai is very high when compared to that at Ahmedabad. The bench at Ahmedabad ordinarily works in full swing. On the other hand, at Mumbai, even one Division Bench is constituted through strenuous administrative arrangements inasmuch as both the permanent Members of the West Zonal Bench at Mumbai are Judicial Members. The sanctioned strength of Members at Mumbai is 6, which means, there are three vacancies of Member(Technical) and one vacancy of Member(Judicial) at Mumbai. The practice of considering EH applications is in vogue since the inception of the Tribunal and the same has worked in a balanced way as long as the different Benches of the Tribunal worked in full strength. Today, there is an imbalance between the existing strength of Members and the huge pendency of appeals at Mumbai. No EH application can be considered, ignoring these factors.

See our columns Tomorrow for the judgements