TIOL-DDT 2322
27.03.2014
Thursday

THE Indian National Congress Manifesto released yesterday emphatically states, "We will ensure that the unpredictable risk of retroactive taxation is avoided."

The reference is obviously to the Vodafone retro amendment. Who brought in the amendment? It was only the Congress party which brought in the amendment. Who asked them to tell the world that we don't hesitate to change the rules of the game after the opponent has won the game. When the Supreme Court ruled in favour of Vodafone, what was the necessity of bringing in a retro legislation? And if they were right then, why be apologetic now? Are they sending some coded messages to some stakeholders somewhere?

Jairam Ramesh, the newfound economic wizard of the Congress party admitted that the retrospective legislation was a mistake; that it sent a wrong message to investors abroad. When exactly did they realise that it was a mistake? Just before the elections? Are they offering Vodafone on a platter to the new Government or are they hoping that they will come back without Pranab Da and PC and deal with Vodafone?

The Congress manifesto also says that they will introduce the Goods and Services Tax Bill and a new Direct Tax Code Bill in Parliament and ensure they are enacted within one year. What they could not do all these years will be done in one year!

Manifestos are for newsmen to analyse - not to be taken seriously.

What is a MONTH?

ON the formation of Telangana, Union Minister Ghulam Nabhi Azad said, "One month does not mean 30 days .”Well, that is politics - we are into taxation and what does one month mean in taxation?.

For example, in Customs, Central Excise and Service Tax, an appeal is to be filed with the Tribunal within three months from the receipt of the impugned order. Now does this mean 90 days or three calendar months?

A Special Bench of the ITAT was called upon to decide this issue recently. The issue referred to the Special; Bench was,

"Whether for the purpose of Section 54EC of IT Act, 1961, the period of investment of six months should be reckoned after the date of transfer or from the end of the month in which transfer of capital asset took place?"

The ITAT Special Bench found that the term 'month' is not defined in The Income Tax Act; so they examined the term "month"as per General Clauses Act, 1897 which says-

"Section 3 defines - (35) "month"shall mean a month reckoned according to the British calendar"

The Tribunal wisely observed,

In British Calendar a month is a unit of period used in a Calendar. It may not be out of context to mention that this system was invented by Mesopotamia. An average length of a month is 29.53 days; but in a calendar year there are 7 months with 31 days, 4 months having 30 days and one month has 28/29 days. It can be possible that under common parlance probably it meant a lunar month but in calculating the specified number of months that had elapsed after occurrence of a specified event then a General Rule is that the period of a month ends on the last day. Therefore, a month ends by the last date of that month.

The Tribunal after scrutinising a few sections of the Act found that on some occasion the Legislature had not used the terms "Month"but used the number of days to prescribe a specific period. For example in Section 254(2A) First Proviso it is prescribed that the Tribunal may pass an order granting stay but for a period not exceeding one hundred and eighty days. The Tribunal noted, "This is an important distinction made in this statute while subscribing the limitation/ period. This distinction thus resolves the present controversy by itself."

The Central Excise Act has similar provisions. As per Section 35B(3), an appeal is to be filed within three months , while as per Section 35C(2A) Proviso, the Tribunal is to dispose of the appeal within one hundred and eighty days . If three months were to be ninety days, the Legislature would have used 'ninety days' instead of 'three months' .

The Special Bench of the ITAT concluded that in the absence of any definition of the word ' month' in The Act, the definition of General Clauses Act 1897 shall be applicable. The Tribunal clarified that it was neither a liberal nor a literal interpretation of the Statute but it is a matter of "purposive construction of statute"or "constructive interpretation of statute”.

Please see 2014-TIOL-156-ITAT-AHM-SB

Annual Closing of Government Accounts - Special Measures

RBI has been requested by the Government of India and some State Governments to facilitate collection and accounting of government transactions (such as receipts of taxes and revenue) for the current financial year (2013-14) up to March 31, 2014 keeping in view the likely rush of tax-payers towards the end of March 2014.

RBI has decided that all agency banks shall keep the counters of their designated branches conducting government business open for extended hours till 8.00 P.M. on Saturday, March 29 and Monday, March 31, 2014 at locations where March 31, 2014 has not been declared as a public holiday.

Further, on Sunday, March 30, 2014 and on Monday, March 31, 2014 (at places where holiday has been declared), agency banks will keep select branches open as a regular working day for transacting government business at key locations identified by them, based on volume of transactions. All electronic transactions would however continue till midnight on March 31, 2014.

RBI DGBA.GAD.No.H - 5430/42.01.029/2013-14, Dated: March 26, 2014

Banks and RBI to facilitate Tax Payments on March 29, 30 and 31, 2014

THE RBI in a Press Release states,

With a view to providing greater convenience to tax payers, it has been decided that all designated branches of agency banks and RBI Offices conducting government business will keep their counters open for extended hours on Saturday, March 29, and Monday, March 31, 2014 till 8.00 p.m. This arrangement will apply where March 31, 2014, has not been declared as a public holiday. On Sunday, March 30, 2014, and on Monday, March 31, 2014 (at places where holiday under the Negotiable Instruments Act has been declared), agency banks would keep select branches open for transacting government business at locations identified by them based on volume of transactions.

Facility of electronic transactions would, however, continue till midnight on March 31, 2014.

In order to facilitate government receipts, necessary arrangements have also been made to conduct special clearing operations across the country. Centralised payment systems, such as, Real Time Gross Settlement (RTGS) and National Electronic Funds Transfer (NEFT) will also be operational on these three days (from March 29, 2014, to March 31, 2014).

RBI Press Release 2013-2014/1899, Dated: March 26, 2014

Appoint Competent Members in Tribunal

IN a recent Order, the High Court of Rajasthan expressed its anguish at the quality of orders passed by the ITAT. The High Court found the judgments of the ITAT to best ereo typed, non speaking, unreasoned, arbitrary and whimsical, that the Court was left with no option except to remand the matter back to the ITAT. So the High Court remanded 81 cases to the ITAT.

The Court observed,

"The ITAT is vested with all the powers of the Income Tax Authorities referred to under Sec. 131 by virtue of Sec.255(6). The same section further clarifies that any proceedings before the ITAT shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 and for the purpose of Sec.196 of the Indian Penal Code.The ITAT has also been deemed to be a Civil Court for all purposes of Sec. 195 and Chapter XXXIV of Code of Criminal Procedure. The ITAT,being a judicial body, while exercising judicial powers under the statute,is not empowered to employ its jurisdiction arbitrarily. Whatever it does,must be done in consonance with the sound judicial principles and in accordance with accepted doctrine applicable to judicial bodies. Any appeal against the order of the ITAT involving only a substantial question of law can be filed by either of the parties before the High Court, In the case, where no substantial question of law is involved,then order passed by the ITAT attains finality. Therefore, onerous duty is casted on the Tribunal to pass speaking, reasonable and ordersshorn of any arbitrariness.

The Tribunal is supposed to set out reasons in support of its decision by narrating fullfacts and discussing the issues in detail so that the person aggrieved knows why it has come to a particular conclusion."

The High Court noticed the observations of the Karnataka High Court in CIT Vs. Gauthamchand Bhandari :-

"We cannot avoid observing that of late the quality of orders that have come out from the Tribunal in exercise of its appellate power under section 256 of the Act are found to be wanting and in many respect and many a time the orders are very prefecture, even nonspeaking orders and has no correlation to the fact situation that prevails in a given case.

We also notice that the members of the Tribunal have developed an unhealthy habit of quoting totally unrelated judgments which are not applicable at all to the facts of the case, to pass orders not otherwise sustainable on facts or in law. We strongly deprecate such a tendency on the part of the members of the Tribunal, which is quite naturally a professional Tribunal comprised of expert members, one member from the Revenue side and another member from the accounting side, with considerable experience in their respective fields and to whom we can attribute expertise. We feel sorry that the confidence posed by the Legislature is not being justified by passing orders that are outcome from the Tribunal now-a-days. It is high time the method of recruitment to the Tribunal is also reviewed by the authority concerned and at least henceforth it is ensured that the members of some standing, integrity and competence are put in place as members of the Tribunal and not all and sundry.

The Legislature, particularly the Union Parliament may also take note of such tendency on the part of the Tribunal and ensure for suitable legislative measure so that the purpose and the object with which such Tribunals are constituted really subserve not only the interest of aggrieved assessee but also to ensure that the Revenue's interest is not simply scarified or jeopardized by errant members."

And the Gujarat High Court yesterday sent an additional sessions judge for training at the Judicial Academy because of his lack of knowledge of the laws on which he was delivering judgements.

See 2014-TIOL-380-HC-RAJ-IT

CBEC needs Under Secretaries and Technical Officers

IT seems 10 posts of Under Secretaries (US) and 11 posts of Senior Technical Officers (STO) are lying vacant in the CBEC. US and STO are in the grade of Deputy. Board wants the Chief Commissioners to send in names of willing and eligible officers latest by 18.04.2014. An IRS officer should be proud to work in the Board/Government as an Under Secretary/Technical Officer, but obviously these days the field postings are more attractive and not many officers would like to work in the Board.

The Board had issued a similar communique in November 2013, but apparently, they have not been able to get enough officers to work in the Board. How will the Board function with 21 vacancies at the basic level?

CBEC F.No. A-35017/15/2013-Ad.II, Dated: March 25 2014.

Political Parties Set Up to Evade Tax - Election Commissioner

ELECTION Commissioner HS Brahma yesterday said at a CII meeting that 90 per cent of the 1,600 political parties registered with the Election Commission had been floated to evade tax. He said that most of the parties did not fight the real battle but used the front of a political party to get income tax exemption and purchase jewellery, houses, plots of land and do sundry other business activities.

The Costliest Bail Order

PERHAPS the most expensive bail order in Indian history was passed by the Supreme Court yesterday in the bail application of Sub rata Roy of Sahara in the SEBI case.

The Supreme Court granted interim bail on payment of Rs. 10,000 Crores, out of which Rs. 5,000 Crores to be deposited with the Supreme Court and for the balance a bank guarantee to be furnished.

Jurisprudentiol - Friday's cases

Service Tax

Export of services - Service performed in India, service recipient abroad - it is export - CESTAT

THOUGH the services have been performed in India, these services being Business Auxiliary Services are in respect of the business of the appellant's principal located abroad. The services being provided by the appellant are obviously meant for and are used by M/s GAP, U.S.A. for their business. The services being provided by the appellant are covered by Clause (iii) of Rule 3 (1) of Export Service Tax Rules, 2005, as these services are in relation to business or commerce and in terms of this clause, read with sub-rule (2) of Rule 3, these services would be treated as exported out of India if the recipient is located outside India and the same have been delivered outside India and used outside India and payment for the same has been received by the service provided in convertible foreign exchange. There is no dispute that the payment for these services has been received in convertible foreign exchange and the payment has been made by M/s GAP, U.S.A. located abroad, not having any establishment or branch in India.

Income Tax

Whether any loss made on last date of accounting year on account of derivative contract outstanding is allowable as business loss as per provisions of Sec 37(1) - YES: ITAT

THE assessee company is a LTU, whose assessment for the AY was completed u/s 143(3) on 31.8.2010. The CIT issued show cause notice u/s 263 19.7.2011 stating as to why the assessment made u/s 143(3) should not be recalled and fresh assessment be made in view of the fact that the deduction claimed on forex derivative on account of losses arising out of the "Mark to Market"transactions of Rs.43.78crores, since these losses were notional losses, as no such sale or settlement had taken place and therefore, were contingent in nature.

The issues before the Bench are - Whether any loss made on the last date of the accounting year on account of derivative contract outstanding is allowable as per provisions of Sec 37(1); Whether assessee is entitled to adjust the actual cost of imported assets acquired in foreign currency on account of fluctuation in the rate of exchange at each of the relevant balance sheet dates, pending actual payment of the liability u/s 43A and Whether losses arising out of "Mark to Market"transaction can be considered as ascertained losses and allowable as a business expenditure. And the verdict goes in favour of the assessee.

Central Excise

It is well settled position that while considering various decisions on matter, latest decision should be preferred as that would have taken into account all previous decisions on subject: CESTAT

THE short question involved is whether the trade discount passed on by the appellant to Oil Marketing Company can be considered as trade discount or not and whether excise duty is leviable on this amount considering the same as part of the value of the goods sold.

The CCE, Mumbai-II confirmed the demand of Rs.1.68crores for the period April, 2011 to October, 2011 along with interest and, therefore, the appellant is before the CESTAT.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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