Jurisprudentiol– Tomorrow's cases

By Vijay Kumar

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

Refund – interest - if the claim of interest is on equitable ground, a written demand is imperative – interest entitled only from three months after filing claim – Supreme Court

INTEREST can be awarded in terms of an agreement or statutory provisions. It can also be awarded by reason of usage or trade having the force of law or on equitable considerations. Interest cannot be awarded by way of damages except in cases where money due is wrongfully withheld and there are equitable grounds therefor , for which a written demand is mandatory.

In absence of any agreement or statutory provision or a mercantile usage, interest payable can be only at the market rate. Such interest is payable upon establishment of totality of circumstances justifying exercise of such equitable jurisdiction. If the claim of interest is on equitable ground, a written demand therefor is imperative.

Service Tax

Online computer training is not taxable under 'online information and database access service' but classifiable under 'Commercial coaching service' - Only difference between online coaching and traditional coaching is medium - Huge demand including penalty amounting to Rs 9.21 Cr against Dewsoft overseas fails: CESTAT

BURDEN is imposed on the Revenue to prove whether the appellant has fulfilled all the conditions in the definition to hold them liable to pay service tax and not the other way round. If the appellants have not come forward with any evidence, nothing stopped Revenue from investigating the case and gather evidence to nail the appellant. In the absence of any material evidence, it was held that the Revenue's proposition to levy service tax fails.

Customs

Misclassification of imported 'Vertical Automated Storage and Retrieval system' in the Bill of Entry is an error rectifiable under sections 149 and 154 of Customs Act, 1962 - Matter remanded to adjudicating authority by Tribunal

WITHOUT expressing any opinion on the merits of the case, but holding that the matter needs to be looked into by the adjudicating authority from the angle of provisions of Section 149 and 154 of the Customs Act 1962 on the inadvertent mistake that has crept into the Bill of Entry as was filed, the matter was remitted by the Tribunal to the adjudicating authority to reconsider the issue afresh and after allowing the appellant to marshal evidence as was at the time of import and decide the issue expeditiously.

Income Tax

Violation of TDS provisions - tax deducted at source but not deposited - Proceedings u/s 278B - Offence for TDS purpose is one-time offence and not continuing in nature; Assessees' appeal allowed: Delhi High Court

IS an offence for the purpose of Sec 201(1) and Sec 201(1A) read with Sec 278B continuing in nature in the Income Tax Act? In simple words, once an assessee fails to comply with the TDS provisions, does such an offence acquire the skin of continuing nature until it is complied with? This was the question before the Delhi High Court which has held that the provision of Sec 278 which is a penal provision does not itself state that the offence could be continuing one. The language of the provision itself indicate the contrary. The wordings of the provision clearly indicate that in case of a failure to deduct TDS, it is a one-time offence and not continuing in nature.

See our columns Tomorrow for the judgements