Jurispruden tiol – Monday's cases

By Vijay Kumar

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

Jewellery seized during search - onus on assessee to prove that he is not the owner: ITAT by majority

The Assessing Officer has rightly assessed the investment in jewellery as unexplained income of the assessee. Section 110 of the Evidence Act, 1872, embodies a salutary principle of common law jurisprudence that where a person was found in possession anything, the onus of proving that he was not its owner was on that person and this principle could be attracted to a set of circumstances that satisfy its conditions and was applicable to taxation proceedings.

Customs

Refund of pre-deposit: No limitation as it is not duty: Madras HC

Bank guarantee cannot be regarded as equivalent to payment of duty and it is only furnished to safeguard the interest of the revenue in case of non-fulfilment of export obligation. Section 27 which speaks about the refund of the duty cannot be pressed into service to deny refund of the amount covered under the bank guarantee which has been negotiated by the department.

Service Tax

Recipient of the 'consulting engineer' service from outside India , not liable to pay service tax prior to 1.1.2005 – CESTAT - LB

Taxable service provided by a non-resident or from outside India, who does not have any office in India, having been specified as 'taxable service' with effect from 1.1.2005, under notification No.36 /2004, recipient of such service could not be held liable for paying service tax prior to 1.1.2005 notwithstanding the amendment in rule 2(1)( d) of the Service Tax Rules under notification no. 12/2004.

Person liable to pay tax: the person liable to pay the tax is a component of the tax scheme. Since the liability to pay service tax generally is on the provider of service, where liability is to be fastened on any other person, the service (s) in relation to which liability is to be so fastened, has also to be identified and specified. It is relevant to mention that services had been specified in the erstwhile sub-section (1A) of Section 68, itself, - corresponding to present sub-section (2) in which it has now been left to the Central Government to do so by a notification.

See our columns Monday for the judgements