TIOL-DDT 2801 · the untouched capture
Rendered as it looked. Links and images are disabled in this view; the file itself is untouched.
<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN" "http://www.w3.org/TR/html4/loose.dtd"> <html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=23157"><img src="http://www.taxindiaonline.com/RC2/image/stories/limca_book2015_1.jpg" alt="DDT in Limca Book of Records - Third Time in a row" width="300" height="148" hspace="5" border="0" align="right" ></a></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font color="#663399" size="3">TIOL-DDT 2801</font><br> 07 03 2016<br> Monday </strong></font></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><strong><em>Acceptance of CESTAT Orders by Chief Commissioner - What if PC is CC?</em></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>AS</strong> per CBEC Circular No. 935/25/2010-CX, dated 21.09.2010, acceptance of CESTAT's orders or filing of appeals by the Commissioner before the High Courts shall be subject to obtaining the concurrence of the Chief Commissioner. This mechanism would ensure uniform approach in filing the appeals before the High Courts within a Chief Commissioner's jurisdiction. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now a question has arisen in the field. In case the Principal Commissioner is holding the additional charge of Chief Commissioner of his/her zone, who will give concurrence for accepting the order of the CESTAT when the PC finds that though the order is against Revenue. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Board to which this great legal doubt was put, took the approval of the Competent Authority (Whoever that is) to clarify that: </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Concurrence of the PC holding additional charge of the CC will be deemed to be the concurrence of the Chief Commissioner for accepting the Final Order of the Tribunal. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/notDesc.php?MpoQSrPnM=MTkzNTc=" target="_blank"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBEC Office Order No. 02/2016., Dated February 12 2016 </strong></font></a></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><em><strong>Supreme Court wants to know if question is live - Deep Disappointment with Revenue</strong></em></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>AT</strong> the very outset the Supreme Court puts on record its deep disappointment with the Revenue and all concerned officers dealing with these matters with regard to the manner in which assistance has been offered to the Court. This is brought to the notice of the Chairman of the Central Board of Direct Taxes so that prompt remedial measures, as may be required, in connection with the huge number of tax appeals pending in the Court are taken. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">There is an SLP in the Supreme Court filed in 2009. The question of Law is the availability of the revisional power under Section 263 of the Income Tax Act, 1961, in respect of the orders passed by the inspecting Assistant Commissioner of Taxes. This question has to be answered in context of the provisions of Sections 125 and 263 of the Act, as amended in 1984 and 1988. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Assessee pleads that the question has become academic as the tax liability of the assessee had been decided in favour of the assessee in the earlier assessment years as also in the subsequent assessment years. Even if the Supreme Court is to decide the question of law in favour of the Revenue, the effective relief so far as Revenue is concerned would be nil. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Department vehemently urges and requests the Court that the question of law may be decided inasmuch as it may still be a live issue in other cases. Therefore, the issue ought not to be left open. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court on 1.3.2016 ordered that these cases will be decided on merits by answering the question of law only after the Revenue satisfies the Court that the question posed is a live issue in other adjudications. - <strong><a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=MTExNzQy" target="_blank">2016-TIOL-24-SC-IT</a></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">While the Supreme Court passed this order on 1st March, the CBDT immediately reacted and on 4th March asked the field for information. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Board wants the information on pending cases on this issue latest by 10.3.2016, to submit the same to the Court on 17.3.2016. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In case no information is received from any Principal Chief Commissioner, it will be assumed that no litigation is pending in his charge on this issue and the Apex Court will be informed accordingly. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/notDesc.php?MpoQSrPnM=MTkzNTM=" target="_blank"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBDT Letter Dated March 04 2016</strong></font></a></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><strong><em>India files dispute against US over non-immigrant temporary working visas </em></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>ON</strong> 3 March 2016, India notified the WTO Secretariat that it has initiated a WTO dispute proceeding against the United States regarding measures imposing increased fees on certain applicants for two categories of non-immigrant temporary working visas into the US, and measures relating to numerical commitments for some visas. According to India, the measures appear to be inconsistent with US commitments under the General Agreement on Trade in Services. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The request for consultations formally initiates a dispute in the WTO. Consultations give the parties an opportunity to discuss the matter and to find a satisfactory solution without proceeding further with litigation. After 60 days, if consultations have failed to resolve the dispute, the complainant may request adjudication by a panel. </font></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><strong><em>Revenue Loses Appeal for failing to rectify defects in appeal </em></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>A</strong> Revenue Appeal was dismissed as the revenue failed to rectify the objections raised by Registry of the High Court. Revenue did not bother for nearly four years and requested the Court to condone the delay of 1521 days. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In an appeal by the Commissioner of Customs, Mumbai, the Bombay High Court recently observed, </font></p> <blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>The lapse on the part of the official to follow up the matter with the Advocate or otherwise with the Registry will not enable us to condone the delay on which we do not have any explanation of cause on file.</em></font></p> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is a vague and general averment complaining about some lapses because of transfer of the officials. The details such as the name of the official; the time during which he was with the Revenue and at the subject posting; when he was transferred and when the lapses on his part were noticed by the other official are not set out. The Advocate's clerk is also blamed and we do not know as to who is really responsible for what is termed as a serious lapse.</font></em></p> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In these circumstances, we cannot accept the explanation as it is neither sufficient nor reasonable. The delay is, therefore, not condoned. The Motion is dismissed.</font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Thus, the Customs lost a huge case, because all the officers concerned were busy blaming the (not so) concerned officers. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On the Central Excise side also, a similar instance occurred, but here the delay was of 422 days. Please see <a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=MTExNjk1" target="_blank"><strong>2016-TIOL-407-HC- MUM-CX</strong></a>. </font></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><strong><em>Clearance of Pulses - Directions to Customs</em></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>WHILE</strong> reviewing the prices of essential commodities and progress of procurement of pulses, the Committee of Secretaries has recommended that CBEC will ensure that there is no delay in lifting of imported stocks of pulses at the ports. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The CBEC requests the Chief Commissioners to monitor import consignments of essential commodities to ensure expeditious clearance. Such consignments should invariably be lifted immediately for home consumption. </font></p> <p align="justify"><a href="http://www.taxindiaonline.com/RC2/notDesc.php?MpoQSrPnM=MTkzNTU=" target="_blank"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBEC Letter in F.No.450/14/2016-Cus IV., Dated February 17 2016</strong></font></a></p> <p align="center"><font color="#006600" size="3" face="Georgia, Times New Roman, Times, serif"><strong><em>VCES - What happens even if first instalment is not paid?</em></strong></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>SERVICE</strong> Tax Voluntary Compliance Encouragement Scheme, 2013 (<em>"VCES"</em>), which came into effect from 10th May, 2013, was introduced to encourage disclosure of service tax dues and compliance of Service Tax law by the persons who have not paid service tax dues for the period from October, 2007 to December, 2012. The VCES envisaged a complete waiver of interest, penalty and other consequences on payment of tax dues relating to the period under VCES. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">As per section 107(1) of the VCES a person may make a declaration for payment of dues before the designated authority on or before the 31st day of December, 2013 in such form and in such manner as may be prescribed which, under section 107(2), the authority shall acknowledge in such form and in such manner as may be prescribed. Section 107(3) postulates that the declarant shall, on or before the 31st day of December, 2013 pay not less than fifty per cent of the tax dues so declared under section 107(1) and submit proof of such payment to the designated authority. Section 107(4) stipulates that the tax dues or part thereof remaining to be paid after payment made under subsection (3) shall be paid by the declarant on or before the 30th day of June, 2014 provided where the declarant fails to pay the said tax dues or part thereof on or before the said date, he shall pay the same on or before the 31st day of December 2014 along with interest. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In an interesting case, an assessee did not pay 50% of the service tax dues and sought for adjustment with its income tax refund. The Department issued a letter dated 26th December, 2013explaining the position of law and directing the writ petitioners to pay the tax dues under the VCES. The Department invoked the provisions of Sections 87 and 89 (Recovery and prosecution). The assessee went in a writ petition to the High Court. </font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A single judge of the High Court observed, <strong><a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=OTQ4MTM=" target="_blank">2014-TIOL-1094-HC-KOL-ST</a></strong></font></p> <blockquote> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On meaningful reading of the provisions contained therein it appears that the immunity as to any benefit, concession or immunity granted under Section 96 shall not be available to the defaulting declarant. The aforesaid provisions have to be read conjointly with section 110 of the said Act. If default is committed under the scheme the consequences provided in the scheme is to be adhered to and the authority cannot travel beyond the boundaries set therein. The benefit under the scheme is provided to a person against whom no enquiry or investigation or other proceeding are initiated. Section 106 of the said Act makes the position clear and, therefore, the person who voluntarily declare his liability to pay service tax, if commits defaults in complying the provisions contained under the said scheme, the authorities are bound to take action under the provisions which provides for the steps to be taken for non-compliance of any of the provisions of the said scheme. </font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Revenue appealed to a Division Bench which set aside the order of the Single Judge. - <strong><a href="http://www.taxindiaonline.com/RC2/caseLawDet.php?QoPmnXyZ=MTExNzQz" target="_blank">2016-TIOL-426-HC-KOL-ST</a></strong>. The Division Bench observed, </font></p> <blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>Under the VCES, payment of 50% of the tax due entitles a declarant to avail himself of the benefit of the VCES. Since 50% of the tax due was not paid, the writ petitioners did not come under the purview of the VCES. Consequently they are not entitled to the benefits under VCES.</em></font></p> <p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Since admittedly 50% of the declared tax dues were not paid by 31st December, 2013, the writ petitioners were not entitled to the benefits under the VCES. Since VCES is a statutory scheme having a fixed time frame, we are of the view that Court by its observations cannot enlarge the time frame as has been done in the instant case. Rather non-payment of 50% of the declared tax dues or other dues under section 107(3) empowers the service tax authority to proceed under section 87 and also under section 89 of the Act, which in the instant case has been initiated.</font></em></p> </blockquote> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Against this order, the assessee took the matter in appeal to the Supreme Court. The Supreme Court by its order dated 26.2.2016 dismissed the SLP.</font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more DDT</font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Have a nice day.</strong></font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to <a href="mailto:vijaywrite@tiol.in"><strong>vijaywrite@tiol.in</strong></a></font></p> </body> </html>