Jurispruden tiol – Monday's cases

By Vijay Kumar

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

Equality before law means that among equals law should be equal and should be equally administered, that like should be treated alike - Petitions challenging constitutional validity of proviso to sub-section (1) of Sec 35 of Central Excise dismissed: Gujarat HC

As per the settled legal position, right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in a judicial or quasi-judicial adjudication. The right to appeal is a creature of the statute and, therefore, such right can be circumscribed by the conditions in the grant.

It is not the law that adjudication by itself, following the rules of natural justice, without any right of appeal would be violative of any constitutional or statutory right. If the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and available to the appellant Where a right of appeal is provided under an Act, limitation thereof must also be provided in the Act.

Accordingly, when the Parliament confers the right of appeal under Section 35(1) of the Central Excise Act, the Parliament also has the power to restrict the right by providing for a specific period of limitation. The Parliament also has the equal power to provide for the maximum period of condonable delay.

Central Excise

Doctrine of merger assists assessee in winning case – Tribunal holds that Commissioner(A) could not have passed an order against the assessee

When the fact of the matter is that the Revenue appeal E/132/2007 is pending before the Tribunal, acceding to the DR's request, the same could have also been taken up and decided with the present appeal of the assessee, quipped an onlooker. What would be the fate of that appeal if and when it is listed for hearing is another matter! By the way, the Apex Court in the case of Maruti Udyog [2002-TIOL-611-SC-CX] has held that the principle of doctrine of merger would not apply when the subject matter of appeals by the Revenue and the other party are different.

Income Tax

Arrears of enhanced rent, on upward revision, would be liable to be included in income of relevant previous year, in which it was received; Revenue will not be entitled to initiate proceedings u/s 147, as it does not amount to income being under assessed: High Court

Arrears of enhanced rent, on upward revision, would be liable to be included in the income of relevant previous year, in which it was received: the amount of arrears of enhanced rent, as received by the assessee, consequent upon retrospective upward revision of rent, would be liable to be included in the income of relevant previous year, in which it was received, and that on that count, the Revenue will not be entitled to initiate proceedings under, or to take recourse to, provisions of Section 147/148 of the Act, as it does not amount to income being under assessed while making assessment, as contemplated by Explanation 2 of Section 147, and that the provisions of Section 25B are clarificatory in nature, and are required to be given retrospective effect.

See our columns Monday for the judgements