Jurisprudentiol-Monday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Service Tax

Section 73(3) of Finance Act, 1994 - After making provision in law, Revenue should respect the provision made rather than feel aggrieved that provision is too lenient: CESTAT

SECTION 73(3) does not envisage any penalty. It is not open for the Revenue to say that penalty as applicable under Section 73(1A) is to be paid when benefit under Section 73(3) is claimed. After making provision in law, the Revenue should respect the provision made rather than feel aggrieved that the provision is too lenient ."

Income Tax

Sec 37 - Whether, if assessee claims expenses incurred with respect to theft of raw materials, and has made similar claims allowed by Revenue in past, it can be assumed that there cannot be more thefts in subsequent year - Assessee's appeal allowed: HC

THE issues before the Bench are - Whether, if assessee claims expenses incurred with respect to theft of raw materials, onus to disprove the same lies on the AO before it disallows the same; whether the principle of preponderance of probability favours assessee if such a claim is made; whether, if assessee made similar claims in the past, and the same were allowed, it can be presumed that there cannot be further theft in subsequent year and whether, if police failed to recover goods stolen in the past, the non-performance of the Police can go against the assessee's claim in the impugned year. And the verdict goes in favour of the assessee.

Central Excise

Department has not proved service of order on the appellant - Limitation to appeal starts from the day the appellant got the order: ;HC

IT is no doubt true that in the matter of service of notice, it being merely procedural, a party has to establish the prejudice occasioned on account of non-service in the matter. However, when the matter arises as to the right of a party in the form of extinguishment of remedy of an appeal, then such provision, though procedural, must be strictly construed or in other words, the strict mandate of the language of the Section must be complied with. Furthermore, between taking a view which permits a party to pursue his remedy and which defeats the right to such remedy, the law must lean in favour of the person, who comes to the Court to pursue his remedy, rather than the person seeking to defeat the remedy, on technicalities.

See our columns Monday for the judgements