TIOL-DDT 706 · the untouched capture
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<!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><font size="2"><b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT 706</font></b><font face="Verdana, Arial, Helvetica, sans-serif"><b><br> 25.09.2007<br> Tuesday</b></font></font></p> <p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Departmental Promotion Committee proceedings – not exempted from <st1:stockticker w:st="on">RTI Act. Income Tax Deputy Commissioner wins in CIC</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A Deputy Commissioner of the Income Tax Department was denied her promotion. She approached the UPSC under the <st1:stockticker w:st="on">RTI Act and asked for the proceedings of the DPC and connected records which resulted in her being overlooked for promotion. </font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The UPSC Information Officer informed her that </font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">“The Commission have taken up the issue with DoPT regarding providing exemption from inspection of records sharing of minutes of the DPC/ Selection Committee Meetings etc. under Sections 8& 30 (i) of the <st1:stockticker w:st="on">RTI Act, 2005 as this would otherwise undermine the selection process. Pending a decision in this regard by the Govt., Commission has taken a policy decision not to share such information with the applicants under <st1:stockticker w:st="on">RTI Act. Consequently, your request for inspection of complete records and file as requested at Para 3 (i) and supply of the copies of all file including Notes Sheets etc. in <st1:place w:st="on">Para 3 (ii) of your letter is not being acceded to and the same is regretted.”</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On appeal, the Appellate Authority informed her,</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">As intimated to the Appellant vide the CPIO's letter dated 18.9.06,the DPC meeting was held strictly in accordance with the statutory Recruitment Rules, the DPC guidelines issued by the DoPT as contained in their OM No. 22011/5/86-Estt.(D) dated 10.4.89 and as amended from time to time, and the information /document including ACRs as made available by the Ministry of Finance, Department of Revenue at the time of DPC. The various rules and regulations called for by her have either been issued by DoPT, the nodal agency or by her parent office /CBDT. The relevant instructions/DPC guidelines are published documents are available in publication such as Handbook on Administration and Establishment. The CPIO therefore, rightly informed her to approach the DoPT and the CBDT for supply of these documents. So far as the copies of the note sheets and inspection of complete record and files are concerned, the UPSC have taken certain policy issues including exemption from inspection of records, sharing of minutes of the DPC/Selection Committee Meting etc. with the Govt. of India in the <st2:Sn w:st="on">Dep't</st2:Sn>. Of Personnel & Training under Sections8 and 30(i) of the <st1:stockticker w:st="on">RTI Act 2005 as sharing of such information would undermine the selection process. The decision of the Govt. of India is still awaited. Pending decision of the Govt. the Commission have taken a policy decision that such information should not be disclosed to anybody till a final decision is taken by the Govt. of India in the <st2:Sn w:st="on">Dep't</st2:Sn>. of Personnel & Training. Besides, the CIC in their decision have also held that DPC minutes /Assessment sheets etc., which contain confidential information relating to grading of the officials based on the ACRs, may not be disclosed. Since a policy decision has been taken by the Commission not to share such information relating to the selection process of the Commission and minutes of DPC the CPIO could not have furnished such information to the appellant.”</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Then she appealed to the CIC with the issues as</font></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. Inspection of records and sharing of minutes of DPC / Selection Committee meeting.</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. Disclosure of complete records and proceedings relating to DPCs.</font></p> <p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. Provision of certified copies of guidelines etc. relied upon by this specific DPC, which had met in Feb.,2005 to recommend the names of promotions of <st1:stockticker w:st="on">IRS Officers in the scale of Dy. Commissioner (IT) to that of Jt. Commissioner.</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The CIC held,</font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>ISSUE 1</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is not for the DoPT to give a ruling on the disclosability of the DPC proceedings. These are disclosable under the <st1:stockticker w:st="on">RTI Act in the manner decided by this Commission, whose decision “shall be binding” u/s 19(7) of the <st1:stockticker w:st="on">RTI Act 2005. <st1:PersonName w:st="on"><st2:GivenName w:st="on">CPIO</st2:GivenName> <st2:Sn w:st="on">UPSC</st2:Sn> will, therefore, arrange inspection of the documents accordingly within 15 days of the date of issue of this Decision notice.</font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>ISSUE 2</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CPIO, UPSC will submit a statement to us within 10 working days of the date of issue of this Decision Notice, specifying the reasons why the information retained in sealed covers is to be kept sealed and in what manner the protected interest by keeping this information confidential outweighs the public interest in the context of sec. 8(2) of the <st1:stockticker w:st="on">RTI Act. A copy of this statement will also be endorsed to appellant <st1:PersonName w:st="on"><st2:title w:st="on">Ms.</st2:title> <st2:GivenName w:st="on">Jyoti</st2:GivenName> <st2:Sn w:st="on">Legha</st2:Sn>, who may respond to it in a further 10 days from the date of receipt of this statement, failing which we will proceed to adjudicate the case of disclosability of these documents.</font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>ISSUE 3</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">A copy of the guidelines be supplied to appellant within ten working days of the date of issue of the Decision Notice. If these guidelines continue to be the same as are currently applicable, UPSC may refer appellant to the relevant entry in DoPT's website. However, it would be fitting if the UPSC were to place these guidelines on its own website in conformity with Sec 4 (1) to be updated from time to time, as it will facilitate its own audience. <st1:PersonName w:st="on"><st2:GivenName w:st="on">CPIO</st2:GivenName> <st2:Sn w:st="on">UPSC</st2:Sn> agreed that this was already intended by the UPSC. Expeditious action is recommended in this regard by UPSC, with reference to Sec 25 (5) of the Act. </font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><u><a href="http://www.hrindiaonline.com/laws4u/rti1.php?filename=rti/2007/2007-HRIOL-09-CIC.htm" target="_blank">Appeal No.CIC/WB/A/2007/00185</a></u></font></p> <p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Direct taxes collection cross One Lakh Crore mark – FM can smile all the way to the bank/next elections</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Direct tax collections maintained a growth of over 40% up to the period 21<sup>st</sup> September 2007. Net tax collections stood at Rs.1,06,095 crore, up from Rs.75,510 crore during the same period last fiscal. </font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Corporate tax recorded a growth of 42.37% at Rs.67,207 crore, up from Rs.47,207 crore during the previous fiscal. Personal income tax (including FBT, <st1:stockticker w:st="on">STT and BCTT) grew by 37.47% at Rs.38,819 crore, up from Rs.28,238 crore. The growth in Securities Transaction Tax (<st1:stockticker w:st="on">STT) was 45.52% and Banking Cash Transaction Tax (BCTT) was 21.36%. Fringe Benefit Tax (FBT) also jumped 87.41%.</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In terms of payment types, advance tax increased by 32% and tax deducted at source (<st1:stockticker w:st="on">TDS) by 48% indicating all-round buoyancy in taxes. Self-assessment tax grew by 81%, indicating better tax compliance levels.</font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Normally the Finance Minister does not help the ruling party to come back to power as in his anxiety to colllect more revenue he makes enemies all round and his officers who are more loyal than the king help him in bringing down the government. Any one who withdraws his own pure white money from his bank account and is asked to pay a tax on that withdrawal will certainly think twice before voting for the party which made him pay the tax. Of course an advantage is that such people usually don't vote. </font></p> <p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Any Service in the port is not port service</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Government has at various occasions tried to tax ship repair, C&F agent, Cargo handling, stevedores and even Custom House Agents under Port Services simply because they are all licensed by the Ports. It is a mystery why they have left out pest control agencies and cobblers and tailors who are also licensed by ports. We had raised this issue long ago and we are happy to note that the Tribunal has recently held that any service rendered in a port is not port service. We will carry one such order tomorrow.</font></p> <p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Road rash – goods imported for Road projects diverted </b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It is learnt that the Mumbai Customs have booked several leading construction companies for diverting goods imported without payment of duty for construction of roads. The Customs have already realised Rs. 4 Crores out of the expected Rs. 7 Crores evasion. How does the Customs ensure that the imported goods are indeed used for road construction? One of the conditions of the exemption notification is that the imported goods are not sold or otherwise disposed of in any manner for a period of five years from the date of importation. Again does the Customs Department have any mechanism to check that these goods are not sold within five years? Do they drive down the swanky national Highways to find out what happened to all those imported goods? </font></p> <p align=center ><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>From our Legal Corner – tomorrow's cases</b></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><b><b><img src="http://www.taxindiaonline.com/RC2/image/stories/ddt_31.gif" alt="Legal Corner Icon" width="191" height="160" hspace="5" border="0" align="left"></b></b></b></font></b></font></strong></font></b></font></strong></font></p> <p align="justify" ><font color="#FF0000" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Income Tax</b></font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Delayed <st1:stockticker w:st="on">TDS on 'usance interest' - Payment of interest u/s 201(1A) - effective date - liability from the date of payment and not from day <st1:place w:st="on">Gujarat HC decision given : <st1:PersonName w:st="on"><st2:GivenName w:st="on">ITAT</st2:GivenName> <st2:nameSuffix w:st="on">Third</st2:nameSuffix> Member</b></font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">The dispute revolves around the issue of, <b>whether interest u/s 201(1A) is payable on the ''usance interest'' from the date of payment or from the date of pronoucement of High Court decision in the Vijay Ship Breaking Corpn case</b> (<a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=38&filename=legal/hc/2003/2003-TIOL-177-HC-AHM-IT.htm"><font size="1">2003-TIOL-177-HC-AHM-IT</font></a>) whereby it was held that the usance interest is nothing but interest payment and <st1:stockticker w:st="on">TDS is deductible.</font></p> <p align="justify" ><font color="#FF0000" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Customs </b></font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Claim for refund cannot be treated as demand of duty, interest or penalty by Revenue, and in absence of any specific provisions, fee for refund claims, need not be paid : CESTAT</b></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In the present case pertaining to a Customs refund matter, the appellant had filed an appeal to the Tribunal against an Order of the Commissioner(Appeals) & paid the fees of Rs.500/- for COD and Rs.1000/- for regular appeal. Even before their appeal was disposed, the Registry took an objection that the prescribed fees for filing the appeal were not paid. The objection was that since the refund claim involved was more than Rs. 5 lakhs, the appellant ought to have paid a fee of Rs.5000/- in terms of Section 129A(6)(b) of the Customs Act, 1962. </font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#663399">Custom House Agent cannot be classified under Port Services - Every licensed person cannot be brought under net of port services : Tribunal </font></b></font></p> <p align="justify"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>THE</strong></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong> </strong><O:P></O:P>appellant is engaged in the activities of Customs House Agent services and holds a valid licence from the Customs under the provisions of Customs House Agent Licensing Regulations. <O:P></O:P></font></p> <p align="justify" ><font size="2" face="Verdana, Arial, Helvetica, sans-serif">After some time, the Department thought they were C&F Agents. As confusion compounded the Department wanted them to be a Cargo Handling agency, but finally settled for port services and stuck them with a demand of over a Crore of rupees.<O:P></O:P></font></p> <p align="justify" ><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><u>See our columns tomorrow for the judgements</u></b></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">Have a nice day.</font></p> <p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p> </body> </html>