Jurisprudentiol - Friday's cases

By Vijay Kumar

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

Bank Realisation Certificate may not be required for claiming duty draw back: High Court

DUTY Drawback on Re-export of Industrial Enzymes - Petitioner claimed duty draw back under Section 74 of the Customs Act, 1962 - Department directs petitioner to produce non-availment of CENVAT Certificate/Declaration and Bank Realisation Certificate/GR Waiver. Petitioner produced CENVAT Certificate Vide letter dated 24.12.2009 and produced Bank Realisation Certification on 03.11.2010. Respondent returns claim treating it as “Claim not Filed”. Petitioner filed Writ Petition - High Court directs grant of duty draw back.

Income Tax

Book surplus - Whether difference between market value and face value of shares arising in a transaction of amalgamation is to be construed as income taxable u/s 28(iv) - NO: ITAT Third Member

THE issues before the Third Member are - Whether the expression ‘any proceeding under this Act' used in section 263, includes any statutory proceeding concluded by the assessing authority for the purpose of exercise of revisional jurisdiction; Whether any issue not considered by the AO in the assessment, can be brought to life by the CIT in exercise of his revisionary powers u/s 263; Whether the revisionary jurisdiction of the CIT is issue-based or proceeding based; Whether the period of limitation to exercise revisional jurisdiction u/s 263 can be computed from the time of completion of income escaping assessment u/s 143(3), read with section 147; Whether the ‘book surplus' i.e. the difference between the market value and the face value of the shares arising in a transaction of amalgamation is an income taxable u/s 28(iv) of the Act and Whether the transfer of such ‘book surplus' to a General Reserve Account is merely an accounting treatment/notion or appropriation of profits.

Central Excise

Review under Section 35 E of the Central Excise Act, 1944 by the Board - Respondent contends that review was not done within one year and files go missing in Board - CESTAT deplores Board's affairs and dismisses the appeal

WHEN the matter is pending before the Tribunal, it is inexplicable as to why the relevant review file is missing from the Board's office. It is also inexplicable as to why the copy of the review order sent to the Commissioner, Tiruchirappalli does not bear the signature of the learned Member. A public official like the learned Member of the Board is required to affix his signature to a statutory order or direction made by him in exercise of the statutory functions assigned to him and statutory responsibilities cast upon him - In the absence of any valid review order produced the applications filed before the Tribunal are not maintainable as appeals.

See our columns Tomorrow for the judgements