24 09 2015
Thursday
THE Delhi High Court dismissed a writ petition seeking a direction to the Government to extend the due date, which is 30th September 2015 for filing income tax returns by assessees whose accounts are required to be audited. The High Court observed, "Such decisions of the Government, is a matter of policy and which the Government is best entitled to take and with which the Courts are not to interfere with except when either find the same to be infringing a vested right or causing undue prejudice to the persons effected thereby."
What is the loss to the Government if the due date is extended ? The petitioner argued that the Government will not suffer any prejudice by granting such extension of time beyond 30th September, 2015 for filing ITR inasmuch as interest, if any payable on the tax due would then be paid till the extended date for filing of the ITR. But the Court observed, However the test to be applied in such matters is not of seeing whether the respondents would suffer any prejudice or not, without first being satisfied of the infringement of rights of the petitioner and/or prejudice being caused to the petitioner. If no right is infringed and no prejudice is found to be caused to the petitioner, merely because no prejudice would be caused to the respondents by extending the time for filing the ITR would not be a ground for interfering with the policy decision of the Government and granting such extension.
This of course is not the end of the story. There are similar writ petitions pending in the High Courts of Bombay, Orissa, Karnataka, Rajasthan, Punjab & Haryana, Gujarat, as we have information. There maybe some more High Courts.
Please see Delhi High Court order 2015-TIOL-2228-HC-DEL-IT
No Retrospective Imposition of Anti Dumping Duty - Supreme Court
IT'S a great Day for DDT. For the last ten years, DDT has been relentlessly pointing out the fact that the Government had been with routine regularity extending the validity of dead anti dumping notifications and we had been questioning as to what would be the position during the period between lapsing of an anti dumping notification and its resurrection. We have been told by several Customs officers that despite lapsing of the notifications, they would collect the anti dumping duty, on the assumption that Government would resurrect them and at that point of time, it would be impossible to collect the differential duty.
What DDT has been shouting from the rooftop for the last ten years has been heard and approved - not by the Board, but by the Supreme Court. And that Board willing is now the law of the land.
The Government imposed, by a notification 50/2002-Cus dated 2nd May, 2002, a provisional antidumping duty under Section 9A(2) of the Customs Tariff Act read with Rules 13 and 20 of the Antidumping Rules. The Notification clearly stated that the anti dumping duty imposed will be effective till 1st November 2002, meaning that they could not levy the duty from 2 nd November 2002.
The Government issued a notification on 1st May, 2003 imposing a final antidumping duty with effect from the date of the imposition of the provisional antidumping duty i.e. 2nd May, 2002.
There is a gap period between 2.11.2002 and 30.4.2003, during which there was actually no law imposing the anti dumping duty, except the retrospective notification dated 1st May, 2003.
DDT regularly reports such retrospective illegal levy of anti dumping duty. The last case reported was in DDT 2604 - 25 05 2015.
Now, the question is whether the Government was right in levying this duty during the gap period ?
The Supreme Court for once and all decided the issue with emphatic finality yesterday holding that the Government cannot levy an anti-dumping duty with retrospective effect.
In no uncertain terms, the Supreme Court held: there can be no levy of anti-dumping duty in the "gap" or interregnum period between the lapse of the provisional duty and the imposition of the final duty.
The American Experience:
The Supreme Court noted that interestingly enough, in the United States Manual dealing with anti-dumping duties, the following is the statement of law:-
"Therefore, a period of time, known sometimes as the "gap period," may exist between the expiration of the end of the provisional measures, even if extended, and the publication of the ITC's final determination (the starting of definitive duties) where the DOC cannot require CBP to collect cash deposits, bonds, or other securities. (The gap period begins the day after the end of the 4- or 6-month period, and ends the day before the ITC's final determination is published). The DOC normally administers this problem in one of two ways. We either send instructions to CBP towards the beginning of the gap period, instructing them to stop collecting cash deposits or bonds, or we wait until the order has been published, then instruct CBP to liquidate all entries during the gap period without regard to antidumping duties."
The Supreme Court was heartened to note that one other signatory nation has taken the stand that no duty can be collected during the "gap period".
We hope that at least now the Government will show some respect to the Law as laid down by the Supreme Court and stop this illegal practice of levying anti dumping duty with retrospective effect. The Board should inform all Custom Houses that once a provisional anti dumping duty lapses, it cannot be levied from the date of lapse.
We bring you the Supreme Court order today.
Please see Breaking News
Board's power to issue circulars itself is questionable?
WE received this mail from Mr. S J Singh, Advocate and retired Commissioner of Central Excise.
This is with respect to Circulars issued by CBEC and publication of the latest 1006/13/2015 - CX dated Sept 21, 2015 in your columns.
I believe that Board's power to issue circulars itself is questionable in view of the judgement of honourable Supreme Court in the case of Union of India vs Karvy Stock Exchange Ltd. 2015-TIOL-170-SC-ST. In this case, honourable High Court of Andhra Pradesh had struck down a circular, 66/15/2003 dated Nov 5, 2003, on the ground that the said Circular was contrary to Proviso to Section 37B. On appeal by the Union of India, the honourable Supreme Court has upheld the decision of the High Court.
The Proviso to Section 37B prohibits Circulars/directions with respect to a particular assessment, disposal of a case in particular manner and which interfere with the discretion of Commissioner (Appeal).
If one reads the Circular dated 05-11-2003, it is a general Circular with respect to the service of applicability of service tax on commission income earned on distribution and marketing of units of mutual fund but it has been found to be violative of Proviso to Section 37B.
Under main provision of Section 37B the Board is empowered to issue circulars/directions in order to achieve uniformity of classification and levy of duty/taxes. Though the Circular dated 05.11.2003 sought to achieve the uniformity in the practice of levy of service tax on a particular service and not with respect to a particular assessment or disposal of a particular case yet it failed the test of judicial review. The Circular has been struck down on the ground that the Board cannot issue circular/direction foreclosing the discretion or judgement of a quasi-judicial authority.
As a general rule the tax payer pays tax on self assessment but if a competent officer finds that the assessment is not in consonance of the law, he may, after issuing the show cause notice and after following the procedure prescribed, change the classification, value and rate of duty. The applicability of exemption notification has ramifications on the rate of duty. Similarly, admissibility of input tax credit may also be a quasi -judicial function. The quasi-judicial functions of the field officers, as per the above judgement, are beyond the purview of the Board to be controlled by Circular/direction.
Since any circular/direction which is contrary to law as interpreted by the Supreme Court is void ab-initio, majority of the Circulars/Directions/Orders which fetter the discretion or colour the vision of quasi-judicial authorities are bad directions to be followed. Both the Board and the field formations have a task at hand.
JD of ED in CBI Net
ENFORCEMENT Directorate investigates cases of money laundering and now CBI has found that the enforcement officers themselves are involved in huge bribery cases. CBI yesterday raided the ED office in Ahmedabad - on a complaint from ED itself. CBI has registered a case against a Joint Director - a 2000 batch IRS officer of the Customs and Central Excise. There is a twist in the case. The bribes were handed over to the father in law of the Joint Director who is a retired Chief Commissioner of Customs.
Sometime back, DDT had reported about a complaint by an Assistant Commissioner that he was harassed by his Chief Commissioner colluding with the gutka lobby. It is the same Chief Commissioner who was the conduit for his son in law, the JD of ED. A neat little family package.
Copyright on Monkey Selfie?
THIS monkey took its selfie and now wants copyright.
In 2011, photographer David Slater visited a forest and left his camera on a tripod for sometime and the monkeys had a field day. A monkey came and took a selfie, by clicking the camera. Slater used the monkey selfie in his book ‘wildlife personalities'.
If a monkey takes a selfie in a forest, who owns the copyright of the photograph? One view is that since only human beings can own copyrights, the monkey cannot own it and if the monkey doesn't own it, nobody else does.
But People for the Ethical Treatment of Animals (PETA) thinks otherwise. It believes that the monkey has copyright and PETA has now sued Slater in U.S. District Court in Northern California. The Complaint by PETA states,
The monkey has the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author;
All proceeds from the sale, licensing, and other commercial uses of the Monkey Selfies … [should] be used solely for the benefit of the monkey, his family and his community, including the preservation of their habitat;
PETA filed the suit under the legal designation “next friend,” used by those filing for those who cannot file themselves.
In his facebook post, Slater says, "Greedy PETA wishing to exploit the selfie for their own agenda. They are suing me for copyright infringement of my own photographs depicting the "monkey selfie". To use my own book "Wildlife personalities" and quotes therein to suggest I am a criminal infringing the copyright of the monkey is entertaining but sad."
It will be sometime before the court decides whether the monkey has copyright.
Tomorrow is a holiday - Eid Mubarak
Until Monday with more DDT
Have a nice weekend.
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