10 03 2015
Tuesday
HERE is a very serious, strict and sincere Commissioner (Appeals) who refused to condone the delay of ONE DAY.
It is nowadays very difficult to find your jurisdictional Central Excise offices. The office of the Commissioner of Central Excise (Appeals) Mangalore was shifted to Mysore. In the confusion as to where the appeal has to be filed, Mysore or Bangalore, the appellant says he was delayed by a day. But the Commissioner will have nothing of this. His interesting observations:
1. I find that the appellant, although has made voluminous submissions has failed to file the same within the prescribed time.
2. He has also not filed any condonation of delay application at the time of filing the appeal.
3. The voluminous submissions of the appellant wherein he has dealt with various service tax issues in detail and skillfully interpreted the laws go on to prove that the appellant has access to good legal assistance regarding tax matters.
4. Thereby I am disinclined to suppose there was any sufficient cause preventing the appellant to file the appeal within time.
5. Further, I find that the appellant has only filed a condonation of delay (COD) application only on 17.01.2014 during the personal hearing i.e. after a lapse of nearly seven and half months which is irregular.
6. Even in the COD application, the appellant has failed to provide a valid reason for the delay in filing the appeal. His contention of being confused regarding the filing of the appeal due to shifting of the Commissioner (Appeals)'s office from Mangalore to Mysore is baseless, in this regard. His claim is far-fetched and not reasonable in the given circumstances as I find that the appellant has rightly addressed the letter to the Mysore address which thereby shows that there was no confusion regarding the shifting of the office.
7. They have also cited that sending the documents by speed post caused the delay. Such an argument is immaterial to the issue.
8. The criteria for determining if an appeal is belatedly filed or not is the date of receipt of the appeal in its proper format in this office and not the date of dispatch.
9. Further his pleas of not having any ‘intentional negligence' too cannot come to his rescue as the issue involved is a factual one.
10. I thereby find no sufficient cause being made out preventing the appellant from filing the appeal in the prescribed time of two months.
11. As such, I find that the delay in filing the appeal does not merit any condonation and need to be rejected on this ground alone.
The assessee had to approach the Tribunal against this order. The Tribunal did not comment much on the learned Commissioner's order, but observed that the Commissioner (Appeals) should have condoned the delay. The Tribunal condoned the delay of one day and remanded the matter to the Commissioner (Appeals) for fresh decision on the appeal (not on condonation).
If the Supreme Court is as strict as the learned Commissioner (Appeals) is, not many cases of the Department will pass the threshold of the Apex Court. Even yesterday the Supreme Court condoned the delay in a Service Tax case and today a Central Excise case is listed for condonation of delay. When the case came up for hearing last time more than two years ago, the Counsel for the Central Excise Department was not present and the department had not served notice on one of the respondents.
And here is a Commissioner who does not condone a day's delay, which he is empowered to do.
What did the learned Commissioner achieve for the Department?. See the possible sequence of events.
1. He passed an order and at least five copies of the order must have been printed.
2. The assessee files an appeal to the Tribunal in quadruplicate - at least 6 paper books must have been printed.
3. The Tribunal fixes a hearing, listens to elaborate arguments, also from the poor AR, who is bound to defend the Commissioner's order; and passes an order.
4. Some 30 copies of this order are printed and circulated to various offices and persons.
5. The assessee has to again approach the learned Commissioner (Appeals) to decide the case, which he could have done in the very beginning itself.
And saved this country some paper and precious money and more importantly, the tribunal could have decided a more important issue. But this is not how Government runs.
Modiji, it is full government and no governance.
Please see 2015-TIOL-99-CESTAT-BANG
Supreme Court Special Tax Bench Starts Functioning
A Special Tax Bench has started function in the Supreme Court since yesterday. The Bench consists of Justice AK Sikri and Justice RF Nariman. The Bench will hear Direct Taxes and Indirect Taxes Civil Appeals from Monday to Friday. With a Bench specially for tax matters, several long pending cases may get decided.
Administration - Implementation of Supreme Court Order - Govt seeks reports from its offices
Indian Alleged Service - The Liberated Babu - Fixed tenure; no oral orders and Civil Services Board
IN a PIL filed by the former Cabinet Secretary TSR Subramanian, the Supreme Court (2013-TIOL-59-SC-SERVICE), had given certain directions to the State and Central Governments:
1. to constitute such Boards (Civil Services Board) with high ranking serving officers, who are specialists in their respective fields, within a period of three months, if not already constituted, till the Parliament brings in a proper legislation in setting up CSB (Civil Services Board).
2. to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months.
3. To issue instructions that subordinates should not be ordinarily given oral directions.
(For details please see Indian Alleged Service - The Liberated Babu - Fixed tenure; no oral orders and Civil Services Board - SC Landmark Order in DDT 2222 - 01.11.2013)
Parliament was informed by the Government that 'the directions of the Hon'ble Supreme Court were brought to the notice of the various Ministries / Departments who are the Cadre Controlling Authorities of the Central Civil Services for compliance'. This part of the reply has been treated as an Assurance.
Now all Ministries / Departments are requested to confirm the implementation of the above judgement.
DoPT Office Memorandumin F.No. 41017/2/2015-Estt.A, Dated: March 09, 2015
Aadhar Based Biometric Attendance Monitoring System (BAMS) - many offices under CBEC yet to follow
A Deputy Secretary in the CBEC writes to several important CBEC offices in Delhi that they are yet to start registration of employees under the Aadhar Based Biometric Attendance Monitoring System (BAMS). They are requested to take immediate action and report compliance latest by 16th March 2015, failing which he is going to report to the Revenue Headquarters!
The offices are:
1. Directorate of Publicity and Public Relations
2. Chief Commissioner of Customs (Preventive)
3. LTU, Delhi
4. CDR, CESTAT
5. DRI, Delhi Zone
6. Principal Chief Controller of Accounts
7. DG, HRD
Interestingly, this is not the first time such ‘strict warnings' have been issued. There are some “repeat” offenders too! See DDT 2526, 2531 & 2535. In the department, does any one care?
CBEC Letter in F.No.26017/85/2014/Ad.II-A, dated March 09, 2015
Law prescribes that Registration to be granted within six months - what happens if it is not granted?
SECTION 12AA(1) of the income Tax Act requires the Commissioner to whom an application is made for the registration of a trust or institution to satisfy himself about the genuineness of the activities of the trust or institution as well as about the objects of the trust or institution. The Commissioner is empowered to pass an order in writing either registering an institution or, if he is not satisfied about the objects of the trust or institution and of the genuineness of its activities, to pass an order in writing refusing to register the trust or institution.
Sub-section (2) of Section 12AA requires that every such order granting or refusing permission under clause (b) of sub-section(1) shall be passed before the expiry of six months from the end of the month in which the application was received.
What happens if the Commissioner does not pass any order within six months? Is the registration deemed to be given?
NO, according to a Larger Bench of the Allahabad High Court.
The High Court held:
1. The legislature has not made any provision to the effect that the application for registration should be deemed to have been granted, if it is not disposed of within a period of six months with an order in writing either allowing registration or refusing to grant it.
2. Laying down a consequence that an application would be deemed to be granted upon the expiry of six months can only be by way of a legislative fiction or a deeming definition which the Court, in its interpretative capacity, cannot create.
3. That would be to rewrite the law and to introduce a provision which advisedly the legislature has not adopted.
4. While interpreting the provision, the Court cannot legislate a new provision or introduce a deeming fiction where none has been provided.
5. Parliament has carefully and advisedly not provided for a deeming fiction to the effect that an application for registration would be deemed to have been granted, if it is not disposed of within six months.
6. Significantly, in the present case, Parliament has not legislated a consequence of a failure to decide an application within a period of six months.
Please see 2015-TIOL-546-HC-ALL-IT-LB
Until Tomorrow with more DDT
Have a nice day.
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