Jurisprudentiol – Monday's cases

By Vijay Kumar

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

Rebate – Education Cess – AC's order denying rebate of Cess not challenged – same issue cannot be re-agitated – Writ jurisdiction not to be exercised in favour of a petitioner, who is guilty of an abuse of process:

THE petitioner (i) did not contest the correctness of the determination made by the Deputy Commissioner of Central Excise on 30 November 2004 and thereafter rejecting the claim for rebate on the payment of education cess; (ii) Moved an application on 20 December 2005 despite the rejection made on the earlier occasion on the same issue; and (iii) Suppressed the material circumstance of the rejection of the earlier application. In these circumstances, this Court in the exercise of its jurisdiction under Article 226 would be duty bound to correct what would otherwise have been a manifest failure of justice originating in an abuse of the process of law by Ispat. The challenge by Ispat to the order dated 30 November 2004, addressed before the Court in a petition filed on 6 March 2010, suffers from unexplained delay. Apart from the reasons, which we have already indicated, we do not consider it appropriate to exercise the Writ jurisdiction under Article 226 in favour of a petitioner, who is guilty of an abuse of process and of unexplained delay.

Income Tax

Sec 40(a)(ia) - Merely because certain business expenses are capitalised, assessee is not barred from claiming same as revenue expenditure: ITAT

THE simple issue before the Tribunal is - Whether if certain business expenses are capitalised, the assessee is barred from claiming the same as revenue in nature. Whether depreciation @ 100% is allowable on the expenditure incurred on purely temporary structures such as wooden structure, false ceiling, painting etc. on leasehold premises.

Service Tax

Second SCN alleging suppression - CESTAT required to pass reasoned order – Approach of Tribunal very cursory - Matter remanded:

THE approach of the Tribunal in this particular case has been very cursory. In fact, in a matter the like this, if the facts are involved pertaining to suppression of material and second show cause notice has been issued, the entire factual matrix had to be considered in order to give a finding with regard to validity of the second show cause notice issued by the Assistant Commissioner. In the absence of there being any application of mind on this issue, the Tribunal could not have allowed the appeal of the assessee by merely relying on the Apex Court's decision. The Tribunal could not have passed such an order by merely referring to a precedent and dispose of the matter without laying any foundation for the same in the form of narrating the facts and giving reasons and only by relying on the basis of the facts narrated and the contentions urged by the counsel.

See our columns Monday for the judgements