TIOL-DDT 2250
12.12.2013
Thursday

THE VCES is to close very soon and the Board is still issuing clarifications.

The following are some of the stupid spokes put by some designated authorities and the wise counsel given by the good Board.

Designated Authority has asked a declarant, who has “tax dues” only for a part of the period covered by the Scheme, to furnish an undertaking that he had no unpaid “tax dues” for the remaining period covered by the Scheme.

Board clarifies: the Scheme does not envisage furnishing of any such undertaking. A declarant may have tax dues only for a part period covered by the Scheme. In terms of the Scheme a declaration of tax dues has to be made in Form VCES-I, which includes an undertaking that the information given in the declaration is correct and complete. Therefore, the Designated Authority should not ask for any other undertaking or declaration beyond what has been prescribed in the Scheme or Rules made there under.

Designated Authority has objected to the payment of the first tranche of 50%, payable by 31.12.2013, in installments.

Board clarifies: the Scheme only prescribes that the declarant would pay a minimum amount of 50% of the tax dues by 31.12.2013. Rest of the payment may be made by 30.6.2014, without any interest, and any amount remaining unpaid on 30.6.2014 shall be paid by 31.12.2014, with interest for the period of delay beyond 30.6.2014. There is no bar to pay these amounts in installments. For example a declarant may pay the 50% amount that he is required to pay by 31.12.2013 in more than one installment. Therefore, payment of 50% “tax dues” in lump-sum may not be insisted to.

Designated Authority has raised frivolous/unnecessary queries as regards the veracity and the manner of calculation of tax dues.

Board clarifies :While the designated authority may cause arithmetical check as regards the correctness of computation of tax dues, the Scheme does not envisage investigation by the designated authority into the veracity of declaration. Only if the Commissioner has reason to believe that the declaration filed by the declarant is substantially false he may, for reasons to be recorded in writing, serve notice on the declarant requiring him to show cause why he should not pay the tax dues not paid or short-paid.

At least in these last moments, the officers of the Department should understand the spirit behind the scheme and encourage it.

With so many doubts and uncertainties, shouldn't they extend the Scheme?

And by the way, why is the Board not giving wide publicity to this all important clarification?

CBEC F. No.B1/19/2013-TRU (Pt.), Dated: December 11, 2013

FM needs to 'sell' Scheme to his own officers before he gets the assessees

AS the VCES is in its last twenty days apprehensive assessees are hesitant to enter the hallowed portals of the Service Tax offices for fear of future consequences. And the Service Tax Department officers totally cut off from the vision and mission of their Finance minister are in no mood to encourage - they believe more in enforcement, adjudication, recovery, coercive action etc. Certainly not voluntary compliance! The above objections that have reached the Board (and there are many which are not allowed to reach the Board) prove that the officers are determined to defeat the scheme.

These officers are asking declarants to file ST-3 return for five years, income tax returns for the same period and a host of other documents to accept the declarations. And it is heard that some corrupt officers have opened their own versions of the VCES. “Why to pay so much under VCES - pay us ten percent and forget - we will take care of you”, some VCES officers tell the prospective declarants.

The FM should seriously consider handing over the entire Scheme to the Postal Department. Let the VCES-1 be filed in post offices and let the post offices collect the amounts payable under the Scheme and let the post offices issue the acknowledgements and final payment certificates. Give a firm guarantee that the assessees will not be further investigated on the issue and period covered under the Scheme. The Post offices should be strictly barred from revealing the identity of the declarants to the Service Tax Department.

Service Tax Offices to be open on Saturdays for VCES

THE Daman Central Excise, Customs and Service Tax Commissioner has issued a Standing Order that its Service Tax Cell shall remain open for receiving VCES-1 declarations on Saturdays - 7th, 14th, 21st and 28th December 2013.

As per the Board instructions, other Commissionerates must also be working on these Saturdays.

Daman Commissionerate Standing Order No. 02/13-14-Service Tax, Dated: December 06 2013

DRI -ends justify means - Founding Day Function Today - FM attends

DIRECTORATE of Revenue Intelligence (DRI) is celebrating its Founding Day Function today. The Finance Minister is the Chief Guest. MoS JD Seelam and Chairperson of CBEC Praveen Mahajan, apart from a large number of senior retired officers of DRI will grace the occasion.

In the note proposing the creation of DRI, the then Finance Secretary noted:

The essential features of the proposed organization are: -

1. It is designed to collect and collate information and to strike swiftly;

2. It is officer-intensive and the ministerial staff has been kept at a minimum;

3. Although small, it is a high-powered organization so that it can issue instructions to Collectors and can command the confidence and respect of the other State and Central organizations with which it has necessarily to deal in order to become effective;

4. It will consist of selected officers, that is, those who by temperament and experience, are equipped to do this specialized kind of work;

5. It will have no routine job of its own in the sense that it is required to collect a certain amount of revenue. It will have complete liberty to act on 'hunches' and only the ends will justify the means it adopts. [third degree?]

The Directorate of Revenue Intelligence was thus constituted on 4th December 1957, for dealing exclusively with the work relating to the collection and study of information on smuggling activities and the deployment of all anti-smuggling resources at the all India level, besides arranging training for the intelligence and Investigation officers of the Custom Houses and Central Excise Collectorates deployed on similar work.

The Founding Day actually falls on December 04, but maybe they could not hold the function on that day due to elections in Delhi - so they are holding it today.

Please also see our CobWeb today

While adjudicating refund claims, decide all objections

WHILE disposing of the Central Excise Appeal (L) No. 22 of 2013 filed by OIL & NATURAL GAS CORPORATION LTD against UNION OF INDIA AND OTHERS, the Bombay High Court in its order dated 8th October, 2013 (2013-TIOL-809-HC-MUM-CX) noted that the Tribunal in the course of its judgment came to the conclusion that several relevant aspects which ought to have been adjudicated by the assessing officer were not adjudicated; that it is evident from reading the order of the Tribunal that all the relevant issues have been kept open for adjudication before the Assessing Officer; that there is no adjudication by the Tribunal either for or against the Appellant and in view of this matter, there is no reason to entertain the Appeal.

The High Court further observed -

"4. Before concluding, it is necessary for this court to observe that while adjudicating upon refund claims, it is necessary in the interest of justice for the assessing officers as well as the first appellate authorities to dispose of all the objections. Otherwise, where the assessing officer or as the case may be the first appellate authority deals with only one or more of the objections without dealing with the claim in its entirety, proceedings remain pending for several years thereafter before the Central Excise and Service Tax Appellate Tribunal. This results in orders of remand in consequence of the failure of the assessing officer or the first appellate authority, as the case may be, to deal with all the aspects of the matter. This prolongs litigation, with several rounds of appeal and remand, which is best avoided both in the interest of the assessee and the revenue. Certainty promotes the rule of law.

5. Hence, we are of the view and direct that the CBEC should issue necessary guidelines in the form of an administrative circular to ensure that assessing officers and first appellate authorities decide all objections to refund claims.”

A copy of the said order was also marked to the Chairman, CBEC.

We reported this order as a Breaking News story on the 16th October, 2013.

Yesterday, the CBEC came out with an Instruction addressed to all the Chief Commissioners, Commissioners, Commissioner (A), CDR et al inviting their attention to the above judgment and the observations made therein.

The Board then says - "The above directions of the Hon'ble Bombay High Court are brought to notice of all concerned for compliance."

If we are not mistaken, the High Court had asked the CBEC to issue guidelines in the form of an administrative Circular.

And if the CBEC is of the view that merely communicating the observations of the High Court would suffice, then what prevented them from doing so all these two months of October and November, 2013.

Probably, they were all busy in finding a recipe for making the ST VCES, 2013 a success!

Instruction F. No. 267/78/2013-CX.8 dated December 11, 2013

24K complaints and appeals pending with CIC

"THE CIC has informed pendency of around 24,800 appeals or complaints as on November 30, 2013. The transparency watchdog does not maintain ministry or department-wise pendency of appeals or complaints." Minister of State for Personnel V Narayanasamy told Lok Sabha in a written reply yesterday.

The Central Information Commission includes One Chief Information Commissioner (CIC) and not more than 10 Information Commissioners (IC) who will be appointed by the President of India.

As per the CIC Press Release dated 22/11/2013, with the induction of five new Information Commissioners, the total number of Information Commissioners including the Chief Information Commissioner has gone up to 10 in the Central Information Commission.

The CIC Annual Report 2011-2012 gives the following information regarding the number of appeals/complaints received and disposed of by individual ICs and CIC during 2008-09 to 2011-12 -

"It has caught the imagination of the people to the extent that it has found its way into the daily conversation of people. It is not uncommon to hear people say ‘I will RTI if so-and-so is not done.' It has become a verb. It is often said that in many cases, an RTI-application alone is enough to motivate and compel the authorities to redress the grievances. The common citizen, who was earlier deterred by the culture of secrecy and intimidated by the mystique of governance, has for the first time got an instrument to question the system and enter its hallowed portals; thereby initiating the much desired process of deepening of participatory democracy. The Public Authorities too on their part have responded positively having realized the vast transformational potential of the Act in charting the road map of good governance." - Extract from the Annual Report.

Perhaps this is the reason that the pendency has increased and it is time that the strength of the CIC is doubled.

Jurisprudentiol - Friday's cases

Service Tax

Whether services provided could be vivisected and services provided within taxable territory alone brought to tax on proportionate value received therefor - Pre-deposit ordered of Rs.60 lakhs: CESTAT

THE appellant is an American company registered in British Virgin Islands (tax haven!) operating in the specialized area of mineral exploration and prospecting and has developed advanced technology for the purpose. The recipients of the alleged taxable service ONGC and RIL entered into agreements with the appellant for exploration and prospecting, for identification of oil and gas reserves in the sea bed within the territory authorised for exploration by India.

Income Tax

Whether any disallowance of expenditure u/s 14A is warranted if dividend income is earned on shares held as stock in trade - YES: ITAT

THE assessee, a company, is engaged in the business of trading in shares and therefore its main object is to earn profit on purchase and sale of shares and not to earn dividend income from such shares. On the date fixed for hearing, assessee's counsel filed an application for adjournment on the ground that two of the partners of the CA firm, who had briefed the counsel, had gone out of station and therefore the case may be adjourned. But when the counsel for the assessee was asked to show whether this firm of CA had been engaged by the assessee through any POA having been executed in their favour, the assessee's counsel was unable to show the same. Therefore the request for adjournment was turned down in the absence of any power of attorney executed by the assessee in favour of the firm of the CAs.

The issue before the Bench is - Whether any disallowance of expenditure u/s 14A is warranted if dividend income is earned on the shares held as stock in trade. And the verdict goes against the assessee.

Central Excise

Valuation - Assessee clearing flux cored wire/welding electrodes to Unit no. 2 for reconditioning work of old/used grinding rollers - Revenue alleges that valuation should be in terms of rule 5 and not rule 8 as no excisable goods have been manufactured -argument of Revenue has no basis whatsoever - Revenue appeal dismissed: CESTAT

THE respondent-assessee has two units named as Unit No.1 and Unit No.2 and they are engaged in the manufacture of wear plates and sleeves of iron and steel. The respondent also manufactures flux cored wire and welding electrodes at Unit No.1 and removes the same to Unit No.2 for undertaking manufacturing activities at Unit No.2 and discharges excise duty liability on such flux cored wire and welding electrodes at 115% of the cost of production as provided in Rule 8 of the Valuation Rules, 2000.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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