TIOL-DDT 2443
23.09.2014
Tuesday

AS part of the cadre restructuring in the CBEC, 45 new Audit Commissionerates will start functioning from next month. The Board yesterday issued detailed guidelines on these Audit Commissionerates. Board wants the Audit Groups to conduct audit of Excise, Service Tax and Customs together and not to bother the assessees too many times. Each Audit Commissionerate will consist of a Commissioner two JC/ADCs, four DC/ACs and a small platoon of Superintendents and Inspectors. Apart from this, the Commissionerate will have 6 or 7 Circles headed by Deputy Commissioners/Assistant Commissioners. These will have Audit Groups comprising of Superintendents and Inspectors. A Large Unit may be audited by 3 Superintendents and 6 Inspectors. (you have to arrange two vehicles for them).

The Audit Commissionerate will issue Show Cause Notices which will be adjudicated by the jurisdictional Commissionerates. The Audit Commissioner can order Special Audit by Cost Accountants/ Chartered Accountants.

Board wants the Audit to be so conducted that the assessee is least inconvenienced. A copy of the Final Report has to be invariably given to the assessee.

This is fine but is the Board aware of the Delhi High Court judgement that Departmental officers have no power to audit? 2014-TIOL-1304-HC-DEL-ST

CBEC Circular No. 985/09/2014-CX, Dated: September 22 2014

CE Valuation - Inter connected undertakings - Related Persons?

A Commissioner did not agree for transaction value and demanded duty from an assessee on the goods sold to an inter connected undertaking, terming it as related person. A peep into the Law:

As per Rule 9 of the Valuation Rules, When the assessee so arranges that the excisable goods are not sold by an assessee except to or through a person who is related in the manner specified in either of sub-clauses (ii), (iii) or (iv) of clause (b) of sub-section (3) of Section 4 of the Act, the value of the goods shall be the normal transaction value at which these are sold by the related persons at the time of removal, to buyers (not being related person); or where such goods are not sold to such buyers, to buyers (being related person), who sells such goods in retail.

Sub-clauses (ii), (iii) or (iv) of clause (b) of sub-section (3) of Section 4sub-clauses (ii), (iii) or (iv) of clause (b) of sub-section (3) of Section 4 stipulates that persons shall be deemed to be “related” if -

(ii) they are relatives;

(iii) amongst them the buyer is a relative and a distributor of the assessee, or a sub-distributor of such distributor; or

(iv) they are so associated that they have interest, directly or indirectly, in the business of each other.

Rule 10 stipulates:

When the assessee so arranges that the excisable goods are not sold by him except to or through an inter-connected undertaking, the value of goods shall be determined in the following manner, namely:-

(a) If the undertakings are so connected that they are also related in terms of sub-clause (ii) or (iii) or (iv) of clause (b) of sub-section (3) of Section 4 of the Act or the buyer is a holding company or subsidiary company of the assessee, then the value shall be determined in the manner prescribed in rule 9.

Explanation - In this clause "holding company" and "subsidiary company" shall have the same meanings as in the Companies Act, 1956 (1 of 1956).

(b) In any other case, the value shall be determined as if they are not related persons for the purpose of sub-section (1) of Section 4.

The Tribunal set aside the order of the Commissioner in the case of Koya & Company Industries Pvt Ltd - 2007-TIOL-1198-CESTAT-MAD

The Revenue did not keep quiet and took the matter in appeal to the Supreme Court where a battery of senior lawyers fought it out before a Larger Bench headed by the Chief Justice. The Supreme Court observed, "The matters have been decided by the Tribunal on their own facts. No substantial question of law is involved." And so the Civil Appeals were dismissed.

The Tribunal had originally remanded the matter to the Commissioner to determine the assessable value afresh according to his best judgment, after hearing the assessee, in terms of Rule 11 of the Central Excise (Valuation) Rules, 2000.

Another round of litigation?

Please see 2014-TIOL-79-SC-CX-LB

Disciplinary Action against IAS Officer for filing writ in Supreme Court - Supreme Court orders payment of costs of Rs. 5 lakhs to officer - State is not hierarchy of regressively genuflecting coterie of bureaucracy

IT all started with a writ petition in the Supreme Court Julio F. Ribero and others vs. Govt. of India including the IAS Officer Vijay Shankar Pandey, which came to be filed under the name and style of India Rejuvenation Initiative, a non-Government Organisation (NGO).

The Government charge sheeted the IAS officer on five grounds:

1. In the writ petition, he had enclosed a letter from another person to the Prime Minister making allegations against senior officers of the Directorate of Enforcement. This was not expected of you being a member of the All India Services.

2. Before becoming member of the institution named India Rejuvenation Initiative, you did not inform the government.

3. In the writ petition, senior officers of the Government of India were criticized, whereas the members of the All India Service are prohibited from criticizing, in the media or in the press, the actions of both the Central as well as the State Government.

4. In the writ petition, officers of the Enforcement Directorate of Government of India were criticized, whereas as per Rule-8 of the All India Service (Conduct) Rules- 1968, members of the All India Service are not allowed to depose in any enquiry wherein the Central or the State government may be criticized.

5. In the writ petition, no permission of the State Government was sought for filing the additional affidavit which was filed by the petitioners (which also includes you), whereas members of the All India Service are not allowed to give any such information without prior permission of either the Central or the State Government which brings disregard to the Central or the State Government.

The Government was of the view that the IAS officer was guilty of violating Rule 3 of the All India Service (Conduct) Rules-1968, which reads as: Every member of the service shall, at all times, maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service.

After crossing several channels, the IAS officer is before the Supreme Court.

In a landmark judgement yesterday, the Supreme Court was at a loss to comprehend how the filing of the writ petition containing allegations that the Government of India is lax in discharging its constitutional obligations of establishing the rule of law can be said to amount to either failure to maintain absolute integrity and devotion to duty or of indulging in conduct unbecoming of a member of the service.

The Supreme Court observed that the purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal- administration in the Government of India . The whole attempt appears to be to suppress any probe into the question of black money by whatever means fair or foul. The present impugned proceedings are nothing but a part of the strategy to intimidate not only the appellant but also to send a signal to others who might dare in future to expose any mal-administration.

The Supreme Court further observed,

The Constitution declares that India is a sovereign democratic Republic. The requirement of such democratic republic is that every action of the State is to be informed with reason. State is not a hierarchy of regressively genuflecting coterie of bureaucracy.

The right to judicial remedies for the redressal of either personal or public grievances is a constitutional right of the subjects (both citizens and non-citizens) of this country. Employees of the State cannot become members of a different and inferior class to whom such right is not available.

The respondents consider that a complaint to this Court of executive malfeasance causing debilitating economic and security concerns for the country amounts to inappropriate conduct for a civil servant is astounding.

The Supreme Court ordered payment of Rs. 5 Lakhs as costs to the IAS officer and held that it is open to the State to identify those who are responsible for the initiation of such unwholesome action against the appellant and recover the amounts, if the respondents can and have the political will .

You can read the full text of this classic judgement in 2014-TIOL-80-SC-MISC

Chartered Accountants Institute wants due date for filing Income Tax Return extended

THE Institute of Chartered Accountants of India has suggested to the CBDT:

a) The due date of filing return of income under section 139(1) for assessees mentioned under clause (a) of Explanation 2 to section 139(1) be extended in line with the extension granted for submission of tax audit report under section 44AB of the Act.

b) Since the provisions applicable to every Assessment year are clarified by the relevant Finance Act well in advance, it is further suggested that all ITR forms and forms of Audit reports be notified well in advance by 1st April every year, to avoid such situations.

The Gujarat Federation of Tax Consultants has done better - they filed a writ in the High Court and we understand that the High Court has yesterday directed the CBDT to extend the date.

Falling Standards of CAs - ITAT comes down heavily - ICAI wants to get remarks expunged

IN DDT 2432 - 08.09.2014, we carried the story of the ITAT coming down heavily on CAs. The Institute of Chartered Accountants of India is naturally upset. The Institute in a release states:

The Council unanimously felt that the comments made by the Hon'ble Bench on the profession and functions of the ICAI were neither warranted as no facts relating to the profession were before the Hon'ble ITAT nor was any opportunity given to ICAI in the said matter. The Council felt concerned that based on the opinion given by one of the members, general comments have been made in respect of the standards of the entire profession. The Council is of the view that the sweeping observations made by ITAT in the order about the Institute and the profession of Chartered Accountancy in a matter relating to a particular taxpayer, are out of context.

The Council is conscious of its responsibility to regulate the conduct of its members. Whenever the Institute come across with any lapse(s) with regard to the conduct of any member, the same is appropriately dealt with under the disciplinary mechanism of the Chartered Accountants Act, 1949 and the Rules framed.

The Council reiterates its respect for the judicial system in the country including the Income Tax Appellate Tribunals. However, the Council has decided to take up the instant matter with appropriate/respective authorities, for expunging the aforesaid remarks made against the profession.

Can Tribunal grant Stay beyond 365 days? Tribunal requested to dispose of appeal expeditiously and preferably within period of six months. The waiver of pre-deposit will continue to remain valid for period of six months - HC

THE Allahabad High Court had in Commissioner, Customs and Central Excise Vs. M/s J.P. Transformers - 2013-TIOL-1152-HC-ALL-ST observed,

"Though we are conscious of the pendency of the appeals and workload assigned to the Principal Bench as well as various Benches of CESTAT, we are of the view that entire object and purpose of insertion of sub-section 2A in Section 35C by Section 140 of the Finance Act, 2002 (20 of 2002) w.e.f. 11.5.2002 and third Proviso by Finance Act, 2013 will stand defeated, if the waiver of pre-deposit is granted indefinitely. The judgment in Kumar Cotton Mills Pvt. Ltd. (Supra) cannot be interpreted to give powers to the Tribunal to extend the order of waiver of predeposit indefinitely.

Even after the above judgement, Tribunal had granted extension of Stay beyond 365 days and the Revenue is in appeal to the same Allahabad High Court.

The High Court in several cases ruled:

We are of the view that the ends of justice would be met if the Tribunal is requested to dispose of the appeal expeditiously and preferably within a period of six months from today. The waiver of pre-deposit will continue to remain valid for a period of six months from today.

We bring you one such judgement. Please see 2014-TIOL-1645-HC-ALL-CX

Jurisprudentiol – Wednesday's cases

Central Excise

Used capital goods cleared by DTA unit to EHTP under CT 3 certificates without reversing credit - Demand on ground that CT 3 clearance is allowed only if goods are obtained directly from manufacturer - Revenue Appeal Dismissed: HC

THE assessee has a DTA unit and also an EHTP unit. The assessee cleared used capital goods and inputs from the DTA unit to the EHTP unit on the strength of CT 3 certificates by availing the benefit of Notification No 22/2003 CE. It is the case of revenue that the DTA unit is not entitled for the benefit of above notification as the goods were not directly cleared by the manufacturer.

Before the High Court, revenue contended that, as the assessee has not received the excisable goods directly from the factory of manufacture or warehouse, the condition stipulated in the Notification No.22/2003 is not fulfilled. In the instant case, the assessee has imported the impugned capital goods on which Cenvat credit has been availed and cleared without payment of duty to EHTP under the cover of CT-3 and therefore, the impugned order passed by the Tribunal is not legal and requires to be set aside.

Income Tax

Whether when assessee fails to produce PAN numbers of parties and also pays no interest on huge loans taken from them, it goes to establish that loan transactions were not genuine - YES: HC

THE assessee filed its return of income declaring loss. The return was processed under Section 143(1) of the Act and thereafter, a notice was issued under Section 143(2) of the Act, initiating scrutiny assessment proceedings. The Assessment officer assessed the loss at a lesser amount than the one returned by the assessee. Assessing Officer made additions of unsecured loans credited in the books of account of the assessee being income from undisclosed sources under Section 68 of the Act on the ground that the assessee failed to discharge the onus cast upon it to identify the persons and prove their creditworthiness of having advanced the loan to the assessee.

The issue before the Bench is - Whether when assessee fails to produce PAN numbers of parties and also pays no interest on huge loans taken from them, it goes to establish that the loan transactions were not genuine. And the verdict favours the Revenue.

Service Tax

Visual images of 'Bruce Lee' received by appellant from foreign service provider for which they pay royalty - property embodied in visual images falls within definition of copyright as ‘artistic work' and is excluded from IPR Service: CESTAT

BEFORE the CESTAT, the appellant submitted that they entered into a licence agreement with the Universal Studio Licensing LLLP, California, USA and as per the said agreement they were permitted to use the Universal property in the name and likeness of the legendary martial artist known as “Bruce Lee” as embodied in the visual images supplied to Licensee by Universal; that they used the said images in mobile games and for the right to use the said universal property, the appellant paid royalty to the service provider. It is further submitted that the property which are visual images come under the category of “Copyright” as defined in Copyrights Act and IPR services specifically excludes copyrights from its purview; therefore, the question of payment of any service tax on the copyrights received from abroad does not arise.

See our Columns Tomorrow for the judgements

Until Tomorrow with more DDT

Have a nice day.

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