TIOL-DDT 2326
02.04.2014
Wednesday

DDT's remarks yesterday that, "PERHAPS, nowhere in the civilised world, you will have a law which says that if the Government fails to do something, the citizen will be punished.", evoked strong response from a senior officer of the Customs and Excise Department. He writes in,

"I was as much horrified when this provision was introduced in the Central Excise Act last year; But, since I couldn't believe that our Department can actually be so unfair, I did some research and to my horror, I found that similar provisions had already existed in Income Tax Act, and our Department had actually caught up with Income Tax Department in this unfair provision of law.

So, my request is to highlight this fact on the Direct Tax side ALSO, so that our Department ALONE is not painted as a carnivore."

Yes, Sir - You are right - It was the Income Tax Department, which first brought this unfair, illogical draconian law, and the CBEC simply followed.

A peep into history:

By Finance Act 2001, in Section 254 of the Income Tax Act, in sub-section (2A), the following provisos were inserted with effect from the 1st day of June, 2001:-

"Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 253, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:

Provided further that if such appeal is not so disposed of within the period specified in the first proviso, the stay order shall stand vacated after the expiry of the said period.".

The very next year in the Finance Act of 2002, the CBEC got an identical amendment to the Customs Act: It was stipulated that:

"Provided that where an order of stay is made in any proceedings relating to an appeal filed under sub-section (1) of section 129A, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:

Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated .".

Similar amendment was made in Section 35C of the Central Excise Act.

In March 2002, TIOL had organised a post budget seminar in New Delhi, which was attended by the Revenue Secretary and the Chairmen of both the Boards. Chairman, CBEC, KL Verma was asked how he could justify such a draconian illogical law. He replied, "you ask the CBDT Chairman - last year he introduced it in the Income Tax Act; he is my elder brother; I simply follow him."The CBDT Chairman who was present did not volunteer to answer and before somebody could ask him, as it often happens in meetings where many press reporters are present, somebody else was in a hurry to get his question through and this question did not get the attention it deserved.

It must also be mentioned that when the draconian provisions were introduced in the Income Tax Act in 2001 and when they were replicated in the Customs and Central Excise Acts, there was hardly any protest, any dissent or challenge. Tyrannical laws get passed not because of the power of the tyrants but because of the meekness of the victims. Blessed are the meek, for they shall inherit the Earth, but their properties will be attached by the tax departments, if the Tribunals are not able to decide their cases because the Government will not post enough judges in these Tribunals.

It was in 2008 that the Income Tax Department made the 180 days to a maximum of 365 days. The Finance Act 2008 amended Section 254 of the Income Tax Act to provide for:

"Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.".

The Memorandum to the Finance Bill explained this provision as:

The intention behind these provisions have been very clear that the ITAT can not grant stay either under the original order or under any subsequent order, beyond the period of 365 days in aggregate.

To make this intention clear, it is proposed to amend section 254 of the Income-tax Act and further provide that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days, even if the delay in disposing of the appeal is not attributable to the assessee.

This was toning down draconianism but at the same time a vulgar exhibition of legislative arrogance. How on earth can you punish an assessee if the delay was not attributable to him? I shave your head and say, because I don't like your shaven head, I am going to cut it off!

This time it took five years for CBEC to follow the big brother CBDT. The 2013 Finance Act inserted a new proviso in Section 35C(2A) of the Central Excise Act as:

"Provided also that where such appeal is not disposed of within the period specified in the first proviso, the Appellate Tribunal may, on an application made in this behalf by a party and on being satisfied that the delay in disposing of the appeal is not attributable to such party, extend the period of stay to such further period, as it thinks fit, not exceeding one hundred and eighty-five days, and in case the appeal is not so disposed of within the total period of three hundred and sixty-five days from the date of order referred to in the first proviso, the stay order shall, on the expiry of the said period, stand vacated .".

And the JS(TRU) clarified:

Section 35C (2A) of the Central Excise Act, 1944 and the corresponding provisions under section 129B (2A) of the Customs Act, 1962 are being amended to provide for a maximum ceiling of 365 days up to which the Tribunal can grant stay of recoveries. By inserting a proviso in the abovementioned sections, it is being stipulated that after 365 days from the stay order, this stay shall stand vacated even if the disposal of the case is pending for no fault of the assessee.

Fortunately in this country, we still have Courts, which see reason and fairness and not every draconian dream of the babu is approved at the peril of the assessee.

It is barbaric that a State passes a law that it will punish the taxpayers for the fault of the State machinery. The Government has ensured that Tribunals don't function properly, they are not provided basic infrastructure, posts are not filled up, new benches are not created and when the Tribunals are not able to decide appeals within a year, they want to punish the assessees. Can there be a more unfair law?

You know who brought in this dreaded law? Yashwant Sinha. And who perpetuated it? Chidambaram. It seems stock markets in India are rising after hearing the news that neither of them will be the next Finance Minister! The Finance Minister does not really matter - the babu will have his way.

Put an end to this Stay Farce

IT is time we put an end to this farce. Just imagine the amount of time and money we waste in the Stay petitions before the Tax Tribunals. Let us do away with this expensive drama. Let there be no requirement of pre-deposit till the Tribunal. Let us throw away all those Stay petitions and let Tribunals concentrate on deciding those appeals. Trade bodies should convince all political parties that such draconian laws retard economic growth and only benefit lawyers. But that is only a dream and will remain a dream.

FTP - Extension of prohibition on export of Pulses (except Kabuli Chana and 10,000 tonnes of organic pulses)

EXPORT of pulses was initially prohibited for a period of six months vide Notification No. 15 (RE-2006)/2004-2009 dated 27.6.2006 which was extended from time to time. This extension is upto 31.03.2014 in terms of Notification No. 38(RE-2013)/2009-2014 dated 25.03.2013. Now, the prohibition on export of pulses is being extended till further orders. This prohibition will not apply to Kabuli Chana.

In addition, the prohibition on export of pulses till further orders will not apply to export of 10,000 MTs of organic pulses and lentils per annum as permitted through Notification No. 51 (RE-2010)/2009-2014 dated 03.06.2011.

DGFT Notification No.78 (RE - 2013)/2009-2014, Dated: March 31, 2014

FTP - Self-certification regarding compliance of bar-coding requirements on secondary and tertiary level packaging on export consignment of pharmaceuticals and drugs

BAR-CODING on tertiary level packaging has come into effect from 1st October, 2011 as per Public Notice No. 59 of 30.06.2011. Similarly on secondary level packaging this has come into effect from 1st January, 2013 as per Public Notice No. 10 of 11.07.2012. The requirement of bar-coding on primary level packaging will come into effect from 1st July, 2014.

DGFT has decided that with effect from 01.04.2014, export of pharmaceuticals and drug consignment would be permitted through a self-certification process. In this process, the exporters would be required to furnish a written declaration to the custom authorities at the time of export regarding compliance of the relevant provisions of bar-coding on secondary and tertiary level packaging on the consignment of pharmaceuticals and drugs being exported. The self declaration Form has also been prescribed.

DGFT Public Notice No.56 (RE - 2013)/2009-2014, Dated: April 01 2014

Customs - Exemption to Goods from Least Developed Countries

THE Government has amended Notification No. 96/2008 - Cus dated: 13.08.2008 regarding concessional rates of duty for imports from least developed countries. Now, more items have been included in the zero duty categories.

Notification No. 8/2014-Cus, Dated: April 01, 2014

Customs - Exemption to Goods from Japan - rates further reduced

THE Government has amended Notification No. 69/2011 - Cus dated 29.07.2011 regarding concessional rates of duty for imports from Japan. Now, the rates of concessional duties are further reduced.

Notification No. 9/2014-Cus, Dated: April 01, 2014

Income Tax - Transfer Pricing - Arm's Length Price - CBDT signs five agreements

THE Central Board of Direct Taxes (CBDT) has signed the first batch of five (5) unilateral Advance Pricing Agreements (APA). The agreements cover a period of five (5) years from AY 2014-15 to AY 2018-19 and specify the arm's length price for the covered international transactions entered into by the taxpayers. These agreements cover a range of international transactions, including interest payments, corporate guarantees, non-binding investment advisory services and contract manufacturing. The agreements pertain to different industrial sectors including pharmaceuticals, telecom, exploration and financial services.

The agreements provide a complete certainty to the taxpayers for five years with regard to the covered international transactions. The APA programme came into effect on 1st July 2012 and the first batch of 146 APA applications was received in March 2013.

The whole scheme of APA has been designed with the intention of creating a taxpayer friendly environment in transfer pricing matters and to minimise the transfer pricing disputes. Before filing the APA applications, taxpayers are given the opportunity to share their expectations from the APA process during the pre-filing consultations and the APA team shares a broader understanding of the forthcoming APA procedure.

Source: PIB Press Release.

Encomiums unparalleled - for DDT

WE received this mail from a great Netizen.

I do not have words I appreciate your cooperation from 2004 till now and aspecting in future.

I want to join membership with TIO.

Actually I am not going to College/University my English are not upto the mark, but I understand & written accordingly. I am not 10+2 passed.

Right now I am in Singapore.

So that please give me appointment in your esteemed office at HYDERABAD or If you visit in Delhi give mea few minutes time in your valuable time, my topics one is need to change our Indian Constitution due to a very old & used. Second Give same lession to so many Customs Commissioner.

Awaiting fruitful response from your side for appointment with you according to the situation DELHI/HYDERABAD.

This man is almost illiterate; he reads TIOL and took the trouble of writing to us in English, as a favour to me as he perhaps knows that my Hindi is more horrible than his English. And he wants to discuss with me about changing the Constitution of India!.

Sir, I will be only too glad to meet you at Hyderabad, Delhi or Singapore, but believe me, my knowledge of the Constitution is nowhere near your native acumen. In any case your mail is far more valuable than the Limca Record.

Jurisprudentiol – Thursday's cases

Service Tax

Creative proposition by Revenue representative is ill-conceived and does not commend acceptance - where a limitation period is stipulated in terms of "month", it connotes 30 days and not calendar month - liberal view must be taken while considering an application for condonation of delay - appellate court is not denuded of the discretion to condone delay but on terms as to costs - Cost imposed of Rs.25000/- and matter remanded to Commissioner(A): CESTAT

IN an application for condonation of delay before the appellate authority, it was averred that the appeal could not be filed as the authorized representative of the appellant was out of station.

The appellate Commissioner, in his order observed that the reasons proffered by the assessee for the delay are not convincing and no sufficient cause was shown for the delay. Consequently, the appeal was rejected as barred by limitation.

While seeking condonation of delay the appellant had not provided clear and cogent grounds and, therefore, had failed to make out a case for condonation but nonetheless there are several decisions which postulate the principle that a liberal view must be taken while considering an application for condonation of delay and that even where no wholly satisfactory cause is pleaded, the appellate court is not denuded of the discretion to condone the delay but on the terms as to costs.

Income Tax

Whether when assessee had huge related party transactions and also failed to furnish bifurcated expenses incurred on SEZ and non-SEZ projects, resorting to Special Audit provisions cannot be faulted with in such case - YES: Delhi HC

THE assessee is a real estate developer engaged in creation, execution and sale of residential and commercial projects. It also earns income from Special Economic Zone (SEZ) on which it had claimed deduction u/s 80-IAB. It had filed its return of income on 15th October, 2010 declaring income of Rs.474,34,24,620/-. As per the assessee, for computing the said income, they had followed Percentage of Completion Method (POCM).

The issue before the Bench is - Whether when assessee had huge related party transactions and also failed to furnish bifurcated expenses incurred on SEZ and non-SEZ projects, resorting to Special Audit provisions cannot be faulted with in such a case. And the answer favours the Revenue.

Central Excise

S. 35E of CEA, 1944 - Appeal filed by CCE before CESTAT based on Review order passed by Committee of CCs delayed by 63 days - CESTAT has power to condone delay -Revenue appeal allowed and matter remanded to Tribunal to decide afresh regarding sufficiency of reasons for condonation of delay: HC

THE respondent is a registered manufacturer of excisable goods chargeable to CE duty under Ch. 85 of the CETA, 1985. They import inputs and claim exemption from custom duty under notification No.25/05-Cus. It is the case of the jurisdictional Central Excise authorities (!) that since the respondents have given a false description in the import documents they are not entitled for the aforesaid exemption.

Accordingly, a SCN was issued seeking to deny the exemption notification and demanding Customs duty amounting to Rs.4.25 Crores u/s 28(1) of the Customs Act, 1962 read with Rule 8 of the Customs (Import of Goods at concessional rate of Duty for manufacture of Excisable goods) Rule, 1996 along with interest, penalty and seeking confiscation of the imported goods.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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