Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

Refund of deposit made prior to issue of Show Cause Notice - Pending appeal in Tribunal no ground for not granting refund - Refund ordered with interest: High Court

THE only defence raised by the learned Government Advocate is that it was due to the pendency of the appeal that the amount was not refunded. Section 11-BB of the Central Excise Act casts a statutory duty on the respondents, to refund the amount within a period of three months. The statutory period of three months for refund the amount has already expired. A writ in the nature of mandamus is issued directing the respondent to refund the amount of Rs.5,05,759/- along with interest at the rate of 6% interest per annum with effect from 07.12.2009 till the date of payment.

Income Tax

Income tax - Whether loss from Future & Option transactions for AY 2004-05 are speculative in nature and same cannot be set off against non-speculative business profits in view of clause (d) of Sec 43(5) - NO, it can be: ITAT

THE key issue before the Tribunal is - Whether the loss from F & O transactions for A.Y. 2004-05 are speculative in nature and cannot be adjusted against the non-speculative business profit as clause (d) of proviso to section 43(5) is inserted prospectively w.e.f. A.Y. 2006-07. The other issues are - Whether the expenses incurred on speculative transactions cannot be allowed to be set off against the profit / loss of non-speculative business and Whether while computing the book profit, the provision for diminution in the value of investments is to be reduced.

Customs

Interim order passed by Commissioner(Appeals) is not an order passed u/s 128A of Customs Act, 1962 – appeal against such order is not maintainable before CESTAT: CESTAT

AN interim order was passed by the Commissioner(Appeals) in an appeal filed by the respondent against Order-in-original passed by the Additional Commissioner of Customs. Incidentally, the respondent had moved the High Court for implementation of the impugned interim order of the Commissioner(A) and the High Court had directed that the order be implemented unless the department obtained stay of the said order from the Tribunal. Revenue has, therefore, filed an application (and appeal) before the CESTAT seeking a stay from the operation of the said Interim order.

See our columns Tomorrow for the judgements