Jurisprudentiol – Tuesday's cases

By Vijay Kumar

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

CHA Licence - examinations held under 1984 Regulations did not get nullified with the enactment of 2004 Regulations and candidates who had qualified examinations held under 1984 Regulations are not required to again qualify examination which may be held under 2004 Regulations; Board is not empowered to make Regulation with Retrospective Effect: SC

THE language of the opening paragraph of the 2004 Regulations and proviso to Clause 8(1) thereof make it clear that those who have already passed the examination are not required to appear in any further examination. It is also evident from the plain language of the opening paragraph of the 2004 Regulations that the actions already taken under the earlier regulations, that is, the 1984 Regulations were saved.

The language of that section and other provisions of the Customs Act do not indicate that the Board is empowered to make Regulations with retrospective effect. Therefore, the 2004 Regulations would operate prospectively and would not in any manner affect the eligibility and entitlement of those who had qualified the examination held under the 1984 Regulations for grant of licences to act as Custom House Agents.

Income Tax

Whether when assessee's representative actively participates in assessment proceedings, it can still dispute validity of service of notice u/s 143(2) - NO: Delhi HC

THE assessee is a partnership firm consisting of two partners namely Manoj Gupta and his wife. The income declared in the return was Rs. 7,83,554/-. The return was processed on 01.03.2004 u/s 143(1)(a). Subsequently it was taken up for scrutiny and accordingly a notice u/s 143(2) was issued on 30.12.2004. Pursuant to the notice issued on 12.09.2005 u/s 142(1) and several notices issued thereafter, the assessee actively participated in the assessment proceedings and partly furnished the details, documents and information called for by the AO. The assessment proceedings ultimately resulted in an assessment order passed u/s 143(3) r/w Section 144. The total income assessed was Rs. 8,51,12,030/-. The AO did not allow the claim u/s 80HHC.

The CIT (A) held that so far as assessment completed u/s 144 was concerned, it was correct, and in accordance with the law, and therefore its validity was upheld. In appeal, the Tribunal agreed with the contentions of the assessee and concluded that the notice u/s 143(2) had not been served on any of the two partners of the assessee-firm and that it was not even the case of the AO that it was so served and quashed the assessment order.

Central Excise

Duty on ‘plastic ropes' increased from 4% to 8% on 07.07.2009 - since as per rule 5 of CER, 2002, date for determination of duty is rate in force when such goods are removed from “factory”, prima facie differential duty cannot be demanded on clearances made to “consignment agent” prior to this date - Pre-deposit waived and Stay granted: CESTAT

THE applicant is engaged in the manufacture of plastic ropes. Certain quantities of these goods were cleared on payment of duty from the factory to the “consignment agent” on 'stock transfer' basis. With effect from 07.07.2009, rate of duty on ‘plastic ropes' was increased from 4% to 8%.

Since the goods would, in all probability, be removed from the premises of the ‘consignment agent' on and after the date of 07.07.2009, the lower authorities, took a view that the goods cleared to the consignment agent on 'stock transfer' basis prior to 7.7.2009 will also attract duty @ 8%. The lower authorities issued and confirmed the differential duty demand.

See our columns Tomorrow for the judgements