Jurisprudentiol – Thursday's cases

By Vijay Kumar

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

Commissioner (Appeals) has fallen into error in taking certain figures (year wise or consolidated for total period) given by respondents instead of examining invoice wise/transaction wise details - Matter remanded: CESTAT

ON the basis of information that the two respondents are not depositing the appropriate amount of service tax in relation to security services provided by them, respondents were visited by the Central Excise officials on 22.10.2002 and certain incriminating documents were recovered under panchanama. Statements were recorded and thereafter demand notices were issued for the period 16.10.1998 to 30.9.2002. Investigation showed that the respondents were issuing invoices covering security services and some invoices covering labour services. In respect of invoices relating to security services, most of such invoices showed that service tax amount was charged and collected. However, in respect of some of the invoices, though the services were mentioned as security services but no service tax was charged.

Income Tax

Whether when AO allows an expenditure as revenue in nature during original assessment, any attempt to treat same as capital expenditure in reassessment would amount to change of opinion - YES: HC

THE Assessee is a company. Present writ petition has been filed by the assessee to seek quashing of the Notice dated 28th March, 2012 issued by the ACIT u/s 148 in relation to the AY 2005-06 as well as the Order dated 25th February, 2013 rejecting the Petitioner's objections thereto. It was contended by the assessee's counsel that, as more than four years had elapsed from the end of the relevant AY 2005-06, ACIT could not have issued the notice without coming to the conclusion that he had reason to believe that income had escaped assessment by virtue of the fact that the assessee had failed to disclose fully and truly all material facts necessary for its assessment.

The issue before the Bench is - Whether when AO allows an expenditure as revenue in nature during original assessment, any attempt to treat the same as capital expenditure in reassessment would amount to change of opinion. And the verdict goes in favour of the assessee.

Customs

Refund - Unjust enrichment - Deposit made before adjudication and appropriated in order in original - If there is contest to demand, amount remains as deposit and doctrine of unjust enrichment is not applicable - CESTAT

THE issue involved is rejection of refund of deposit of duty made during the provisional assessment. The Appellant had imported ICs, Transistors etc. at Air Cargo Complex Ahmedabad and the said goods were cleared vide Bill of Entry No.6757/98 dated 27.10.1998. The said consignment was detained by the Customs officers on the ground that the prices shown in the said bill of entry and invoice were very low. The detained goods were released provisionally on execution of the requisite bonds and on payment of differential duty of Rs.10,00,000/- and Rs.7,50,000/-

The Tribunal finally decided the matter in favour of the appellant. The claim of refund for the duty of Rs 17,50,000/- paid by the appellant was credited to consumer welfare fund by the Adjudicating Authority on the ground of unjust enrichment. The same has been upheld by the Appellate Authority. Aggrieved by the same, the appellants are before the CESTAT.

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