Simply inTAXicating - Bankruptcy Law: A Silver Bullet

DIRECT TAX

CIRCULAR

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Amendment in Section 206C vide Finance Act 2016 - Clarifications regarding

CASE LAWS

2016-TIOL-1106-HC-RAJ-IT

Whether in case the application filed by the assessee is without any defect and the audited accounts were submitted later on because submission of audited accounts along with the application was not mandatory, can the application be rejected without any further reference - YES: HC

Revenue's appeal dismissed

2016-TIOL-982-ITAT-DEL

GE Capital Services India Vs ACIT : DELHI ITAT (Dated: May 19, 2016)

Whether when the additions made in the assessment order on the basis of which penalty for concealment was levied has been deleted, there remains no basis at all for levying the penalty for concealment and therefore, in such a case no such penalty can survive - YES: ITAT

Assessee's appeal allowed

 

INDRECT TAX

NON-TARIFF NOTIFICATIONS

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Appointment of Common Adjudicating Authority

CASE LAWS

2016-TIOL-1105-HC-ALL-CX

CX– Petitioners were imposed penalty of Rs.5 lakhs each by the Addl. Collector of Customs, Meerut, under section 112 of the Customs Act, 1962 vide order-in-original dated 28.10.1988 - the appeals filed by the petitioners before CESTAT were dismissed on 4.11.1997 for non-prosecution : HELD – There was no reason for the petitioners to believe that the penalty that was imposed upon them was sought to be recovered from the Official Liquidator - there is gross negligence, inaction and lack of bonafides on the part of the petitioners as they did not pursue the appeals which they had filed and permitted the appeals to be dismissed for want of prosecution -the enormous laches of about 25 years have not been satisfactorily explained at all – petition dismissed : HIGH COURT [para 11, 13, 16]

Writ Petition dismissed

2016-TIOL-1104-HC-DEL-ST

ST - Demand of ST confirmed against the petitioner - petitioner before CESTAT - in the meanwhile, petitioner filed writ petition before High Court - when the appeal came up for hearing before CESTAT, the petitioner's request for keeping the appeal pending till the final outcome of the present petition declined by observing that appeal was not maintainable since the Petitioner cannot avail two parallel remedies against the impugned order simultaneously. HELD - As regards the plea that the Petitioner cannot afford the pre-deposit that might be ordered by the CESTAT u/s 35F of CEA, the Court finds the plea to be premature since there has been no occasion for the CESTAT to yet pass any order of pre-deposit - Petitioner cannot be allowed to bypass the statutory remedy available to it - the right course is for the petitioner to revive/seek restoration of its appeal before the CESTAT accompanied by an application for condonation of delay in filing such restoration application seeking recall of the CESTAT's order: HIGH COURT [para 7]

Writ Petition disposed of

2016-TIOL-1096-HC-MAD-ST + Story

Service Tax - Writ Vs Appeal - Section 35F of the Central Excise Act, 1944 - Order passed by CESTAT in Stay Application - Whether Writ Petition is maintainable.

Held: O pinion expressed by the Division Bench in Metal Weld Electrodes that writ petition is not maintainable, cannot be accepted - In RajkumarShivhare case the Supreme Court has carved out certain exceptions where writ petitions are maintainable - Reading of RajkumarShivhare by the Division Bench in Metal Weld Electrodes may not be fully correct. - A judgment is a precedent for what it lays down and not what follows out of it - Writ Petition is maintainable. (paras 8,9 & 10)

The Tribunal has passed a conditional order directing pre-deposit without considering any of the grounds pleaded, though raised by the writ petitioner - Impugned order is set aside and the Tribunal is directed to hear the application for pre-deposit. (paras 13 & 14)

Petition allowed

Cus - Petitioner has had several rounds of litigation up to the Supreme Court and has failed in each of them - He never once raised the plea in all these years of the officer of the DRI lacking jurisdiction - In the circumstances, permitting the Petitioner at this stage, nearly 12 years later, to challenge the SCN or the adjudication order arising out of a SCN issued more than 12 years ago would constitute condoning a blatant abuse of the process of law - Petitioner is trying to initiate another round of litigation for the same relief after having been unsuccessful in the several rounds of litigation in which interestingly he never raised the issue of lack of jurisdiction of the officer who issued the SCN - judgment of this Court in Mangali Impex Ltd. v. Union of India - ( 2016-TIOL-877-HC-DEL-CUS ) which interpreted Section 28(11) of the CA as amended was intended to apply to all pending cases and the cases that would arise thereafter - Court is not inclined to entertain the present petition as impugned SCN challenged in the present petition and the adjudication order passed pursuant thereto have attained finality - writ petition and the application are dismissed: High Court [para 10, 11, 12]

Petition dismissed

Cus - Petitioner has been asked by the DA to go for a mid-term Review, for something as simple as a change of name of an entity mentioned in the Final Findings rendered on 4th April 2014 - in terms of Rule 23(1) of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for Determination of injury) Rules 1995, the review is essentially for examining the need for the continued imposition of the anti-dumping duty - purpose of a mid-term Review is to examine whether the conditions which existed at the time of initial imposition of antidumping duty have "altered to such an extent that there is no longer justification for continued imposition of anti-dumping Duty" - it was incumbent on the DA to have first examined whether, on the basis of the documents submitted by the Petitioner, the change in its name has altered or impacted the basis for the imposition of the anti-dumping Duty in terms of the Final Findings dated 4th April 2014 - A mere change of name cannot alter the legal status of the entity - consequential change of the name of the Petitioner as recorded in the Final Findings should not ordinarily require an elaborate exercise of a mid-term Review - A mid-term Review would undoubtedly not get over in a short time - It would undoubtedly further delay the availing of the benefit of the anti-dumping duty notification by the Petitioner - The Court suggests that the DA must issue a further set of instructions to account for the need to make routine clerical corrections in the Final Findings or for that matter in any other Findings rendered by the DA particularly where such corrections are occasioned by changes that take place after the issuance of the Findings or notification as the case may be; contingency of change in name is one such - failure to devise a procedure for dealing with such contingencies cannot constitute a valid reason to compel the initiation of a mid-term Review to effect changes that are of a routine nature and which do not affect the basis of the Findings - impugned communication issued to the Petitioner gives no reason whatsoever for requiring the Petitioner to go in for a mid-term Review - said decision as communicated by means of the impugned letter dated 7th March, 2016 of the DA is hereby set aside - DA directed to examine the Petitioner's application dated 18th December 2015 and take a decision within four weeks – Writ Petition allowed in above terms: High Court [para 16 to 22]

Petition allowed

Cus - ADD - import of PVC Suspension Resin from European Union ('EU') and Mexico - Name of the Petitioner was changed from Ineos Chlor Vinyls Ltd. to the present name i.e. Inovyn Chlor Vinyls Ltd. - Petitioner along with Inovyn Sverige AB jointly filed an application before the DA on 18th December 2015 for change of their names in the Final Findings - impugned communication dated 7th March 2016 issued to the Petitioner by o/o DA, Directorate General of Anti Dumping and Allied Duties gives no reason whatsoever for requiring the Petitioner to go in for a mid-term Review - It is also silent on whether the application made by the Petitioner on 18th December 2015 with the enclosed documents was examined by the DA - Accordingly, the said decision is set aside - DA directed to examine Petitioner's application and take a decision within a period of four weeks - Petition allowed in above terms: High Court [para 10, 11]

Petition allowed

Cus - Notfn. 21/2002-Cus - Given the proximity of the date of first registration of the car, i.e. 11th February 2008 (which was to comply with the requirements of the UK laws) and date of import i.e. 20th February 2008, it cannot be said the said car ceased to be a new car and became a 'second hand' car at the time of its import - so also, in the matter of WP 7779/2015 car in question was manufactured in Germany on 12th February 2010 and subsequently sold and shipped to the dealer in the U.K. and thereafter was exported by M/s Continental Motors, U.K. to India on 22nd March 2010; here again given the proximity of the date of manufacture of the car and date of its import, it cannot be said the said car ceased to be a new car and became a 'second hand' car at the time of its import - impugned orders of the CCESC dated 19th June 2014 and 30th March 2015 giving the benefit of the Customs Notification No. 21/2002-Cus dated 1st March 2002 cannot be said to be perverse warranting any interference by this Court - other directions issued by the CCESC regarding interest, penalty, fine in lieu of confiscation and grant of immunity from prosecution also do not require interference by this Court - Writ Petitions filed by DRI disposed of: High Court [para 17, 18, 19]

Petitions disposed of