Jurisprudentiol – Thursday's cases

By Vijay Kumar

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Penalty – Mens rea - broad principle is that there is a presumption that mens rea is an essential ingredient in every offence – Supreme Court

WHETHER an offence can be said to have been committed without the necessary mens rea is a vexed question. However, the broad principle applied by the courts to answer the said question is that there is a presumption that mens rea is an essential ingredient in every offence but the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered. To put it succinctly, in examining whether mens rea is an essential element of an offence created under a taxing statute, regard must be had to the following factors: (i) the object and scheme of the statute; (ii) the language of the section and; (iii) the nature of penalty.

Income Tax

Can Revenue make additions based on mere observation of Tribunal in an unrelated case in hands of third party assessee - Is there no need to establish nexus between assessee and seized documents - additions not sustainable: ITAT

SECTIONS 143(3), 147 - Whether mere observation of the Tribunal in an unrelated case is sufficient to make addition for unexplained investment in the hands of a third party assessee - Whether no corroborative materials are required to establish any link between the assessee concerned and the documents seized during search of another 'person'.?

Service Tax

Adjudicating authority dropped the demand against which department filed appeal before Commissioner (A) – realizing their folly, appeal was withdrawn and revisionary proceedings were resorted whereby Commissioner confirmed demand – Prima facie case for grant of stay: CESTAT

WHILE most of the procedures under service tax law were aligned to that of the central excise, one of the exceptions was the treatment to an order-in-original passed by an officer subordinate to Commissioner, if the same is not acceptable to the Commissioner on account of its lack of legality or appropriateness. While section 35E of the Central Excise Act, 1944 prescribes a departmental appeal being filed against such order before the Commissioner (Appeals), section 84 of the Finance Act, 1994 prescribed revision of such orders, which amounts to recalling the order and re-adjudicating it. There were also other associated guidelines given in section 84 in this regard.

See our columns Tomorrow for the judgements