Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

Appeal to Commissioner (Appeals) - High Court cannot extend period of limitation - Limitation Act expressly excluded: HC

WHEN a period of limitation is prescribed for filing of an appeal and the extent of the power to condone the delay is also prescribed by the statute, the exercise of the writ jurisdiction under Article 226 of the Constitution would clearly be not warranted to direct the adjudicatory or appellate authority to breach the provision for limitation. Once the legislature has laid down a period within which an appeal has to be filed and has prescribed the extent to which a delay beyond that period can be condoned, recourse to the provisions of Section 5 of the Limitation Act, 1963 would stand expressly excluded within the meaning of Section 29(2) of the Limitation Act, 1963.

Income Tax

Whether when Two Members develop difference of opinion and case is referred to Third Member who agrees with Member (J), Accountant Member can, even after becoming functus officio , reframe points of difference again - NO: ITAT Special Bench

THE Third Member decided both the issues in favour of the assessee. While giving effect to the opinion of the Third Member, the Judicial Member passed the conformity order. But, the Accountant Member raised further objections as the finer points of differences between the Members were not addressed. Thus, the President constituted a Special Bench, and the issue involved interpretation of sub-section (4) of section 255 which provided that the point on which difference arose shall be decided in accordance with the opinion of the majority. The question to be considered was whether at that stage (i.e., the stage of giving effect to the opinion of the Third Member) it was legally permissible, having regard to the statutory provision, for a Member who was in the minority to decline to give effect to the opinion of the majority whatever be his reasons. In addition to the question of interpretation, it also involved the issue of judicial decorum.

Service Tax

Clearing and forwarding - Tribunal dismissed appeal for non-compliance of pre-deposit - Dismissal confirmed: HC

ADJUDICATING Authority has considered most of the contracts entered into by the Assesse with various parties and has arrived at a conclusion that the transactions entered into by the assessee with those parties do not appear to be simply placing orders and earning commission, but it is much more than that. The Adjudicating Authority has also held that the credit notes clearly disclose that the Assessee has directly dealt with the goods in lifting them, providing of the vehicles and delivery of the goods. In these circumstances, the prima facie view formed by the Tribunal that the adjudicating authority had reason to believe that the assessee had rendered the clearing and forwarding agent's service cannot be faulted with.

See our columns Tomorrow for the judgements