2017-TIOL-2196-HC-DEL-ST + Story
ROMA HENNY SECURITY SERVICE PVT LTD Vs CST: DELHI HIGH COURT (Dated: October 17, 2017)
ST – Error in CESTAT order - Impugned order mentions the date of final hearing as 14th February 2013 whereas the interim order itself was passed on 16th December 2014 - What is perplexing is that in para 6 of the impugned order the CESTAT purports to set out para 5 of the decision of the Supreme Court in P.C. Paulose, Sparkway Enterprises = 2011-TIOL-06-SC-ST whereas it has in fact set out para 5 of the CESTAT's order in that case which, in fact, was in favour of the Assessee and which is an obvious instance of non-application of mind by the CESTAT: High Court [para 21, 22]
ST – Limitation - Assessee did furnish with the reply, the agreements, payments made to AAI , payments to contractors, copies of ITRs, details regarding sale of entry tickets etc. pursuant to the licence agreement with the AAI to the Department - This was sufficient for the Department to proceed under Section 73 (1) of the FA within the period of one year - Department was not justified in invoking the extended period of limitation under clause (d) of the proviso to Section 73 (1) of the FA - CESTAT had erred in holding that the extended period of limitation in terms of the proviso to Section 73 (1) of the FA was rightly invoked by the Department – Impugned order set aside and appeal allowed: High Court [para 23, 25, 27, 28, 29, 30]
Appeal allowed
2017-TIOL-2195-HC-MAD-VAT
NV KAMALESH KUMAR Vs ADDL COMMISSIONER CT: MADRAS HIGH COURT (Dated: October 6, 2017)
TNVAT Act - Writ & CST Act.
Keywords: Business premises - Criminal intention - Elementary principle - Fraud - Issue of notice - Lease agreement - Partnership deed & Registration under TNVAT Act/CST Act.
The second respondent was carrying on business in a property belonging to a mutt which was rented out to Petitioner herein. The wife of the second respondent was stated to had entered into a lease agreement with the Petitioner after paying a specified sum of money towards the cost of construction and after construction was completed, the superstructure was leased out to the second respondent. It was the further case of the second respondent that the Petitioner was insisting that he should be made a working partner and to be paid 2% of the profit to him, which was stated to had been refused. While so, a notice was issued by the CT, stating that he had received information that the lease deed given by the second respondent at the time of obtaining registration under the TNVAT Act/CST Act was a forged document. On the other, the second respondent alleged that the Petitioner played fraud by signing the lease deed differently with a criminal intention to extract money from him and he had given a detailed explanation to the CT. The Petitioner, had a different story to plead stating that he was the lessee of the land and he had been paying the land rent and had put up a superstructure and entered into a lease agreement with the wife of the second respondent herein and subsequently, a partnership deed, was entered into between the him and the spouse of the second respondent. He also contended that the second respondent had manipulated and created a document by forging his signature and obtained the registration certificate under the TNVAT Act by concealing partnership deed and the registration of the firm. After securing information through the State Information Commissioner, the CT, issued notice to the petitioner and after conducting a detailed enquiry, had passed the order cancelling the registration. But, the Additional Commissioner, ordered in favour of second respondent with a direction to the CT to restore and activate the registration certificate under the TNVAT Act and CST Act in favour of the second respondent herein with retrospective effect from the date of cancellation. It was observed that both parties can approach the Civil Court to establish their rights to ownership and possession over the superstructure of the business premises.
In Writ, the High Court held that,
Whether revisional authority can decide a matter without following elementary principle of to issue notice to the both the parties - NO: HC
Whether therefore, failure to issue notice to the petitioner is fatal to the proceedings and hence, liable to be set aside - YES: HC
++ on a reading of the order, it is seen that the petitioner has not been afforded an opportunity to putforth their contentions. Infact, copy of the order has not been communicated to the petitioner and he has obtained the same under the Right to Information Act. The first respondent has set aside the order passed by the Joint Commissioner (CT), Chennai North Division, dated 19.11.2015. This order was passed in a revision petition filed by the second respondent herein in R.P.No.69 of 2015, challenging the order passed by the Assistant Commissioner (CT), Peddunaickenpet Assessment Circle, cancelling the second respondent's registration under the TNVAT Act and CST Act.
++ the cancellation of the registration by the Assistant Commissioner was at the instance of the petitioner herein. When the Joint Commissioner heard R.P.No.69 of 2015, she had issued notice to the petitioner herein, heard the second respondent and the petitioner herein and by a detailed and speaking order, dismissed the Revision Petition. Copy of the order, dated 19.11.2015, in R.P.No.69 of 2015, has been communicated to the petitioner. Challenging the said order dated 19.11.2015, further revision was filed by the second respondent before the first respondent. Thus, the elementary principle that should have been followed by the first respondent is to issue notice to the second respondent,(the revision petitioner) as well as the petitioner herein, who is a proper and necessary party to the proceedings. This is so because, the allegation is that the second respondent forged the signature of the petitioner and with the manipulated documents secured registration under the TNVAT Act & CST Act. Thus, failure to issue notice to the petitioner is fatal to the proceedings. When the records are clear that there is no notice to the petitioner, then the natural consequence that has to follow is to set aside the order and this Court has no hesitation in doing so.
++ This Court can take judicial notice of the fact that the revision petitions are pending before the first revisional authority and the second revisional authority for several years and this Court has issued directions to the revisional authorities to dispose of the revision petitions within a time frame. It is not known as to why, the first respondent has acted in such a hasty manner, that too, without issuing notice to the petitioner herein. The Revision Petition appears to have been given an "out of turn" hearing.
Writ Petition allowed
2017-TIOL-2194-HC-MUM-CUS
VIDEOJET TECHNOLOGIES INDIA PVT LTD Vs CC: BOMBAY HIGH COURT (Dated: October 13, 2017)
Cus - some goods imported by the assessee were seized - The assessee claimed that the goods seized also included some goods which were locally sourced, and produced documentation evidencing the same - The assessee also claims to have made various representations to the department.
Held - the Customs departent directed to accept and examine the documents put forward by the assessee w.r.t. the locally sourced goods - The department also directed to examine the representations put forward by the assessee to determine whether the goods sought to be imported require a No-Objection Certificate - Testing and analysis of the seized goods be completed within the time frame prescribed - Matter listed for hearing on November 10, 2017: High Court (Para 1-13)
Case deferred
2017-TIOL-2193-HC-MAD-CUS
G PRABHAKARAN Vs ACC: MADRAS HIGH COURT (Dated: October 5, 2017)
Cus - the Customs department had seized and confiscated some gold bars and gold chains belonging to the assessee - The department passed an O-i-O giving option of redemption fine u/s 125, or imposition of duty demand in convertible forex, if the assessee chose to clear the gold for home consumption, apart from imposing a personal penalty on the assessee - Later, the Commr.(A) reduced the personal penalty and partly allowed the assessee's appeal - The present writ was filed by the seeking the release of the seized gold/jewellery.
Held - although the revenue filed a petition for revision of the impugned O-i-A, it fails to clarify as to at what stage its matter now lies - Hence the revenue directed to release the gold/jewellery for the purpose of re-export, subject to the assessee complying with the condition imposed by the Commr.(A) - The revenue left free to pursue its appeal: High Court (Para 2,3,4,5,6)
Writ petition allowed
2017-TIOL-2192-HC-MAD-CUS
JUNAID INTERIOR DESIGN PROPRIETARY FIRM Vs CHIEF COMMISSIONER OF CUSTOMS: MADRAS HIGH COURT (Dated: September 20, 2017)
Cus - the assessee firm had imported some goods and filed Bills of Entry, but the goods were seized by the Customs department - The assessee alleged that its consignment had been detained by the revenue based upon the objections raised by another firm, for alleged infringement of intellectual property rights.
Held - since the firm which alleged infringement of intellectual property, did not participate in the proceedings, the revenue is obliged to assess the various bills of entry and release the goods - Since the goods were seized based on an objection an that the department lifted the order of suspension on some of the goods, in such case, the assessee is entitled to a certificate of demurrage & detention charges: High Court (Para 2-7)
Writ petition allowed
2017-TIOL-2191-HC-MAD-CX
TATA INTERNATIONAL LTD Vs CUSTOMS CENTRAL EXCISE SETTLEMENT COMMISSION: MADRAS HIGH COURT (Dated: October 6, 2017)
CX - the revenue issued an SCN to the assessee alleging clearance of excisable goods without payment of duty - Duty demand with interest & equivalent amount of penalty, along with penalty under Rule 25 of the CER, 2002, was imposed - When the assessee took up the matter before the Settlement Commission, it was found that the assessee had not filed returns showing production, clearance and payment of duty, at any point of time - Hence the Commission held that the assessee did not satisfy Section 32E of the CEA, 1944.
Held - Admittedly the assessee has no vested right to compel the Settlement Commission to take up its case, without first fulfilling the conditions prescribed u/s 32E - As records show, no returns were filed and so, an application for settlement could not be made in view of the statutory embargo, as contained in Section 32 E (1)(a) - Hence order of the Settlement Commission warrants no interference: High Court (Para 2,3,4,5)
Writ petition dismissed
2017-TIOL-2190-HC-MAD-MISC
LEBARA HOTELS PVT LTD Vs ACCT: MADRAS HIGH COURT (Dated: September 19, 2017)
Tamil Nadu Tax on Luxuries Act - Writ - Section 4A.
Keywords: Liability to pay tax - Revisional power - Surprise inspection - Superfluous & without jurisdiction.
The Assessee-a four star rated hotel, had filed its return and was and remitting tax under the provisions of the Act. For the AY 2015-16, the Assistant Commissioner (CT) passed an order which was pursuant to a surprise inspection conducted by the officials of the Enforcement Wing of the Commercial Taxes department. Upon considering the report of the officials of the Enforcement Wing, the AO issued a revision notice by pointing out certain defects. However, the Assessee filed their objections which were subsequently received by the AO and hence, he completed the assessment proceeding wherein, the total tax due was quantified. After giving credit to the tax already paid, the balance amount was demanded. Aggrieved by the said assessment order, the Assessee preferred a writ but the same was not entertained by the High Court and hence, disposed the same and directed the Assessee to file an appeal before the concerned Appellate Authority concerned. Just before filing the appeal and after disposal of the earlier two writ petitions, the Assistant Commissioner (CT), passed another assessment order for the year 2015-16 stating that there was no further liability to pay tax after giving credit to the amount of tax already paid by the Assessee. Although, the Assistant Commissioner (CT) does not hold any power to revise his own order for the very same AY. Such power was conferred only on the Joint Commissioner. Therefore, realising his mistake, a third order was also passed. By an order, the first respondent would state that the order dated 09.6.2017 was incorrect and the order dated 10.4.2017 was the correct assessment order and the balance tax as demanded therein was once again demanded in the order.
In Writ, the High Court held that,
Whether when an assessee faces hindrance on account of the assessment order which is the subject matter of challenge before the Appellate Authority, the High Court holds a right to interfere in the same - YES: HC
++ in my considered view, the Assessee, having preferred an appeal before the Appellate Authority pursuant to the directions issued in the earlier writ petitions, it is but appropriate for the Assessee to canvass all the points in the pending appeal. If this Court were to adjudicate the correctness of the contentions raised by the Assessee in this writ petition, it would amount to sitting in judgment over the earlier order passed by this Court in W.P.Nos. 10660 and 10661 of 2017 dated 26.4.2017. However, the impediment, which the Assessee now faces on account of the assessment order, should necessarily be interfered with, since, already the order dated 10.4.2017 is the subject matter of challenge before the Appellate Authority;
++ accordingly, the writ petition is allowed and the order dated 28.6.2017 is set aside as superfluous and without jurisdiction, by simultaneously observing that setting aside the assessment order dated 28.6.2017 will have no impact on the earlier order dated 10.4.2017 and the Assessee is at liberty to canvass the correctness of the order dated 10.4.2017 in the pending appeal before the second respondent. No costs. Consequently, the WMPs are closed.
Assessee's writ allowed
