TIOL-DDT 2439
17.09.2014
Wednesday

THE new appeal provisions as per the Finance Act 2014 came into effect from 6th August 2014. After a month and ten days, the CBEC has come out with some clarifications which were crying for attention of the Board. But as they say better late than never.

Quantum of pre-deposit for appeal to Tribunal from Commissioner (Appeals) - pay additional 10 percent: As per the amended provisions, a pre-deposit of 10 percent is to be made for an appeal to the Tribunal against an order of a Commissioner (Appeals). While appealing to the Commissioner (Appeals), an amount of 7.5 percent of the duty/penalty must have already been deposited. Now the doubt is whether the 10 percent deposit for appeal to the Tribunal is in addition to the 7.5 percent already deposited or is it inclusive of that?

In DDT 2394 - 11.07.2014, we had raised this doubt - "There is a doubt on payment of another 10 percent for the second appeal. Though the TRU letter states that another 10 percent, the amendment does not say so clearly. So, there is a doubt whether the pre-deposit at the second appellate stage is 10 percent or 17.5 percent. Even if it is 17.5 percent, what will happen to the 7.5% deposited with the Commissioner (A)?. Shouldn't that also be considered as pre-deposit? This also needs clarification statutorily."

Though the Government did not make any statutory clarification, the Board has now issued a circular which clarifies: "It is, therefore, clarified that in the event of appeal against the order of Commissioner (Appeal) before the Tribunal, 10% is to be paid on the amount of duty demanded or penalty imposed by the Commissioner (Appeal). This need not be the same as the amount of duty demanded or penalty imposed in the Order-in-Original in the said case.”

There is absolutely no doubt about this, but the doubt is what happens to the 7.5 percent already deposited? Will it be refunded? When the order of the lower authority merges with the order of the Commissioner (Appeals), and the appellant is required to pay 10 of the duty determined by the Commissioner (Appeals), where is the question of retaining the 7.5 percent with the Department?

In any case, this is not for the Board to decide; if this was their intention, they should have made it clear in the Law passed by Parliament. The Board is not a super parliament which can add to the legislation, its own belated wisdom.

This will be an issue for litigation in CESTAT as well as several High Courts and eventually the Supreme Court.

Payment made during investigation: Board clarifies that payment made during investigation or audit prior to filing the appeal will also be considered as the 7.5/10 percent pre-deposit. Thank you!

Board further clarifies that in case of any short-payment or non-payment of the amount stipulated under Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, the appeal filed by the appellant is liable for rejection. Is it not for the appellate authority to decide? Can the Board impose its views on the appellate authorities, especially the Tribunal?

No Recovery during pendency of appeal: This is the best clarification ever to come: In DDT 2394 - 11.07.2014, we reported, "Many of our distinguished contributing authors have expressed a fear that, notwithstanding the amendment, Department can still proceed with recovery as the pre-deposit is only a pre condition for appeal and not a stay against recovery. Let us hope when the Bill is enacted, it would be statutorily clarified that no recovery proceedings can be initiated when the appeal is pending."

Though not statutorily, Board has now clarified that:

We can all heave a sigh of relief that the menacing mandarins of the Department will not descend on unsuspecting assessees from December onwards threatening to recover demands made in cases pending with the Tribunal. Appellate Authorities are also liberated from the unproductive Stay matters and can now concentrate on final matters. CBEC deserves kudos for this very liberal and fair clarification, which will change the very appellate mechanism of the Department.

Refund of pre-deposit in 15 days; on a simple letter; even in Remand cases: good things continue…

Board clarifies:

1. in all cases where the appellate authority has decided the matter in favour of the appellant, refund with interest should be paid to the appellant within 15 days of the receipt of the letter of the appellant seeking refund, irrespective of whether order of the appellate authority is proposed to be challenged by the Department or not.

2. If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable unless such order is stayed by a competent Appellate Authority.

3. In the event of a remand, refund of the pre-deposit shall be payable along with interest.

The attitude of the Board towards the taxpayer seems to have undergone a major change - we hope it continues.

CBEC Circular No. 984/08/2014-CX., Dated: September 16, 2014

Income Tax - Last Date for Filing Returns - Extended - in J&K

CONSIDERING the large scale devastation in Jammu & Kashmir, the CBDT has extended the due date for filing income tax returns from 30th September 2014 to 30th November 2014.

CBDT Order Section 119, Dated: September 16, 2014

Better management of Suspicious Transaction Reports (STRs) - CBDT invites suggestions from Departmental Officers

STRs constitute a strategically important source of information for Income Tax department. In the last few years the number of STRs has grown tremendously and is growing further. The department has not been able to investigate all STRs promptly.

Board has reviewed the matter from various aspects of better management of STRs and it has been felt that while it is of paramount importance to take steps for better and quicker investigation in available STRs, it is important to identify, inter alia, the types of STRs that have been found not useful from direct tax point of view, so that necessary feedback could be given to FIU-IND to discontinue dissemination of such STRs. This would facilitate reduction in number of STRs and enable quicker and better investigation in remaining STRs.

CBDT OFFICE MEMORANDUM, Dated: September 15, 2014

Suspicious Transaction Reports (STRs): Big Brother watching

THE PMLA 2002 and Rules notified thereunder impose an obligation on banking companies, financial institutions and intermediaries of the securities market to verify identity of clients, maintain records and furnish information to FIU-IND. FIU-IND has been established as the central national agency responsible for receiving, processing, analyzing and disseminating information relating to suspect financial transactions. FIU-IND is also responsible for coordinating and strengthening efforts of national and international intelligence and enforcement agencies in pursuing the global efforts against money laundering and related crimes.

Every reporting entity shall furnish to FIU-IND information of all suspicious transactions whether or not made in cash.

Suspicions transaction means a transaction including an attempted transaction, whether or not made in cash which, to a person acting in good faith -

(a) gives rise to a reasonable ground of suspicion that it may involve proceeds of an offence specified in the Schedule to the Act, regardless of the value involved; or

(b) appears to be made in circumstances of unusual or unjustified complexity; or

(c) appears to have no economic rationale or bonafide purpose; or

(d) gives rise to a reasonable ground of suspicion that it may involve financing of the activities relating to terrorism;

Cash transactions of over Rs. 50,000 are reported. If a bank has reason to believe that a customer is intentionally structuring a transaction into a series of transactions below the threshold of Rs.50,000/- the bank should verify the identity and address of the customer and also consider filing a suspicious transaction report.

It is reported that in 2013-14, the FIU received more than 54,000 Suspicious Transaction Reports.

Bar Council of India bars internship for Law Students

THE Bar Council of India has written to the Registrars of all Universities imparting Law Education and the Principals of all Law colleges directing that henceforth universities/colleges should send their students for internship to the Law firms and Senior Advocates only during vacations.

This is obviously to meet the problem of attendance in our Law colleges. Many students of reputed Law Colleges work as interns and absent from classes. Empty classroom is a regular feature for many a law teacher. The Bar Council is concerned with the quality of Law Education at the undergraduate level.

But there are any number of Law Colleges with no classrooms, no faculty and no requirement of attendance. And they produce hundreds of lawyers every year.

And in the letter from the Bar Council, Principal is spelt as Principle! The letter is addressed to the Principles of all the law colleges. Hope the Bar Council reaches them.

Cadre Review - CBEC Notifies Jurisdiction of Officers

THOUGH CBEC is not able to make much headway in the matter of promotions, the legal framework for the cadre review seems to be under efficient control. The Board has yesterday notified the jurisdiction of officers as per the Cadre review to follow. This is to be effective from 15th October 2014.

Jurisprudentiol - Thursday's cases

Service Tax

Reference to Five Member Bench - Miscellaneous Applications by Commissioner (Service Tax), Delhi - These misc. applications are defended with more heat than light - more dogma than logic or law - Applications dismissed with costs: CESTAT.

NETIZENS may recall the order of Tribunal referring the issue of whether the composite contracts could be vivisected and taxed prior to 01.06.2007 in 2013-TIOL-1458-CESTAT-DEL.

The Commissioner (Service Tax), Delhi filed Misc applications pointing out certain mistakes in the above referral order and subsequent Misc order dated 05.05.2014. The Applications were filed  inter alia  on the following grounds:

The CESTAT erred in concluding the matter of the appellant L&T on the issue of vivisection of composite contracts involving transfer of goods and provision of services prior to 01.06.2007 under pre-existing taxable service categories such as "Commercial or Industrial Construction" or "Consulting Engineering" services and had referred the matter to the Larger Bench; that this amounts "virtually to an administrative decision" by the President, CESTAT while sitting in a Division Bench and hearing an application for stay filed by L&T. The application also avers that this order is in error since it does not "express any doubt alongwith reasons" regarding the correctness or otherwise of the Larger Bench decision of the Tribunal in  BSBK Pvt. Limited - 2010-TIOL-646-CESTAT-DEL-LB  and in failing to spell out reasons why the Bench found it difficult to follow the Larger Bench decision in BSBK (P) Ltd., "even if the Division bench were headed by the President, CESTAT",

Income Tax

Whether character of any stock-in-trade acquired by partners of firm changes into capital asset upon dissolution of firm, without presence of any agreement regarding such conversion - NO: HC

THE assessee is an individual. It had entered into an agreement of partnership at will with one Amruthben K Chedda on 1st Mar, 1982. The partnership deed was silent as to its assets or stock-in-trade. The said partners purchased two plots of land at Thane Dist. under a conveyance deed in their favor dated 2nd Apr, 1982 for purpose of its development. However, later they decided to dissolve the partnership and a dissolution deed dated 1st Apr, 1985 came to be executed whereunder the partners decided to treat the partnership assets as their co-owned plots of land and as their personal capital assets. Both the parties agreed that they will repay the loan that they had borrowed for the purchase of land out of their own resources.

The issue before the Bench is - Whether character of any stock-in-trade acquired by partners of a firm changes into a capital asset upon dissolution of the firm, without presence of any agreement regarding such conversion by the partners. And the answer is NO.

Customs

Once the warehousing period has expired, the goods are deemed to be improperly removed from warehouse and cannot be considered as warehoused goods and appellants are required to pay duty u/s 72(1)(b) of Customs Act, 1962 irrespective of fact that they want to abandon or relinquish title of goods - Appeal dismissed: CESTAT

THE appellant imported eight consignments of plant and machinery relating to acrylic fibre/polymerization/extrusion during October, 1994 to September, 1995. The said goods covered by six Bills of Entry were cleared and kept in a Bonded Warehouse while the goods covered by two other Bills of Entry were in Docks area. Later on, intelligence was received that the appellants are required to pay, to the supplier, in addition to the invoice value of the said plant and machinery, certain amounts relating to the technical knowledge fee.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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