TIOL-DDT 2495
12.12.2014
Friday

THE Third Report of the Tax Administration Reform Commission (TARC) says:

To begin with, the two Boards need to seek honest answers to some simple questions. They need to ask themselves whether the revenue coming in is because of the administration or despite it. And if so, how much of it is because of the administration's efforts? Answers to these questions will illuminate their path to reform .

Some interesting extracts from the Report:

It will not be unfair to say generally that when taxpayers walk into a tax office in India, they cannot but feel a sense of trepidation, if not foreboding. It is not a prospect they look forward to even when in their estimation, they have followed the law. If they wish to get an issue resolved or clarified, even an ordinary one, it is not to the tax department that they turn to, for they have little hope of getting a decisive and reliable answer.

Ordinary law abiding taxpayers tend to view the tax administration - both direct and indirect - with a mixture of fear and lack of confidence and trust, while violators seem to have no fear of the administration.

The two Boards cannot hope to achieve the objective of maximising voluntary compliance without the co-operation of the community of taxpayers. The widely prevalent impression of a hostile tax environment in the country cannot be erased unless they address the root causes that have led to this impression, namely an unfriendly and unresponsive administration, a very high degree of uncertainty and unpredictability in tax matters due to inconsistent understanding and interpretation, and a huge amount of disputes and litigation.

It would be idle to talk about creating a climate conducive to voluntary compliance without first purging the pathology of issuing and confirming inflated tax demands and unjustifiable persistence in litigation that imposes heavy costs on the taxpayers. In fact, by letting many issues be decided by courts even when it is within their powers to clarify and settle them, the two Boards seem to have not only abdicated their responsibility but also ceded areas of tax policy to courts and allowed the growth of uncertainty.

The almost total obsession with meeting unrealistic revenue targets has led the tax administration to ignore more important and vital aspects of compliance management and resulted in a deplorable fall in the quality of the administration, driving taxpayers to frustration, exasperation and anger towards the administration. This can be ignored by the administration only to the country's peril.

Customs - Adjudication by DRI officers

PARA 5 of the Board Circular No 44/2011- Cus dated 23.09.2011 clarified that the officers of DRI and DGCEI shall not exercise authority in terms of section 28(8) of the Customs Act, 1962 even though they have been assigned the function of ‘proper officers' for the purposes of section 17 and section 28 of the Customs Act 1962 vide notification No 44/2011- Cus (N.T.) dated 6.07.2011.

Section 17 (inter alia) deals with verification of self-assessment and re-assessment by the proper officer.

Section 28(8) deals with adjudication of demand notices for recovery of duty.

Pursuant to the Cadre restructuring/reorganization of CBEC, new posts in the rank of Commissioners of Customs have been created in DRI and DGCEI for adjudication of cases relating to cases investigated by DRI and DGCEI.

Board has decided that henceforth, specified officers of DRI and DGCEI may attend to work relating to adjudication of case where show cause notices of short levy/non levy of customs duty have been issued under section 28 of the Customs Act 1962.

Board Circular No. 44/2011- Cus dated 23.09.2011 stands modified to the above extent.

This is a very sensible action; there is no point in DRI issuing a Show Cause Notice and a Jurisdictional Commissioner adjudicating it. As a rule, Commissioners confirm every demand, and nobody has the guts to drop a Show Cause Notice issued by DRI.

DRI is famous for issuing humungous Show Cause Notices - in terms of length of the Show Cause Notice and the amount of duty demanded. Normally adjudicating officers don't read the entire Show Cause Notice. Now that DRI can adjudicate, the hassle of sending the Show Cause Notice and connected files to the jurisdictional officers can be avoided. And since any way DRI has prepared the Show Cause Notice, they can change a few words in the Show Cause Notice to make it the adjudication order.

Actually the Government should seriously consider dropping one step in the adjudication procedure. The Show Cause Notice and the adjudication order can be merged. A sentence may be added at the end of the Show Cause Notice, “therefore it is proved beyond all shades of doubt that the importer is liable to pay the duty, interest and penalty." This will at least save lot of time and paper in replying to the Show Cause Notice and appearing before the learned Commissioner.

It is said that 90% of the notices are confirmed by the Commissioners in their adjudication orders (the remaining 10% are reviewed by the Committee of Chief Commissioner) and 90% of these orders are set aside by the Tribunal. Do we need to run such a farcical system?

CBEC Circular No. 14/2014-Customs, Dated: December 11, 2014

FTP - Keeping in abeyance Notification No. 93 - EXIM Code 1005 Maize (Corn)

NOTIFICATION No.93 (RE-2013) dated 29.09.2014 has, inter alia revised the Import Policy for EXIM Code 1005 - Maize (Corn), removing the item from the "State Trading Enterprises" list to "free".

The notification was challenged before the High Court of Andhra Pradesh and Telengana at Hyderabad and the High Court passed interim order dated 21.11.2014, maintaining status quo by both parties till 3.12.2014. On 3.12.2014 the High Court further extended the status quo for two more weeks i.e till 17/12/2014.

In compliance with the aforementioned interim orders of the High Court of Andhra Pradesh &Telengana, effect of Notification No.93 (RE-2013) dated 29.09.2014, in respect of the EXIM Code 1005-Maize (Corn) (1005 90 00 - other), is kept in abeyance until 17.12.2014.

DGFT Policy Circular No. 14/(RE-2013)/2009-2014, Dated: December 10, 2014

DDT in TARC Report

THE Third Report of the Tax Administration Reform Commission (TARC) contains the extract of a DDT capsule verbatim. While commenting on needless litigation, the Report states (page 884),

What is worse is that sometimes litigation is persisted in by the departments despite a clarification by the Board and in a number of cases, officers in the field fail to follow the Board's instructions. A recent report appearing in one of the tax websites (https://taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=21928 accessed in November 2014) is illustrative of the problem (see Box 12.2).

Box 12.2 is the extract of the first capsule of DDT 2471. The Commission has fairly acknowledged the source and even given a link to the DDT in the Report.

We are happy that we have been of some use to the Commission.

Boycott of ITAT Bench by Tax Consultants Association & Bar Association - appeal decided ex-parte - appellant faces consequence - matter not to be remitted

ONE of the arguments made by the appellant before the High Court was that the appeal had been decided ex parte by the ITAT.

The appellant admitted that a notice was received by them but on account of boycott call given by the Associations namely the Rajasthan Tax Consultants Association and Jaipur Tax Tribunal Bar Association regarding an allegation against a member of the Income Tax Appellate Tribunal, who is the author of the order of the ITAT in impugned order, the arguing counsel in their case who also happened to be a signatory of the resolution, being Secretary of Jaipur Tax Tribunal Bar Association, did not appear for the hearing.

Nonetheless, it is their submission that the Bench of ITAT was aware of the boycott call given and, therefore, it ought not to have proceeded to decide the said appeal ex-parte and, therefore, the order is not proper and is without application of mind and is in violation of principles of natural justice and the matter deserves to be remitted to ITAT to decide the questions afresh in accordance with law.

The High Court held -

++ We are not convinced with the argument advanced by ld. Counsel for the assessee that the members of the association being on strike still passing order behind the back of the assessee's representative is in violation of principles of natural justice. The Hon'ble Apex Court, in the case of Ex. Captain Harish Uppal Vs. Union of India (UOI) and Anr.: (2003)2 SCC 45 , deprecated the strike call/ boycott call by the Lawyers and held it to be illegal and unjustified. It expressed in strong terms that Lawyers have no right to go on strike or give a call for boycott, not even on a token strike. It further observed that lawyers holding Vakalats on behalf of their clients are under legal duty to attend the Courts/Tribunals irrespective of strike or boycott. Lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequence by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. Strike or boycott cannot be countenanced in the present day situation and real sufferer is the society- public at large.

++ In the light of the judgment (supra), we are not convinced with the argument advanced by counsel for the appellant on this submission and particularly in view of the fact that an adjournment was already granted by the Bench on the request made on behalf of the appellant. Thus, we see no reason to interfere in the order passed by the ITAT deciding the appeal ex-parte as alleged and thus not convinced with the submission of counsel for the appellant that the matter deserves to be remitted back to the ITAT for re-hearing or an opportunity be afforded to the assessee for fresh hearing.

See 2014-TIOL-2122-HC-RAJ-IT

Please also see:

1. ITAT Bar Association boycotts Member - DDT 2089 - 22.04.2013

2. ITAT Bar Association withdraws Boycott of Member - DDT 2100 - 08.05.2013

3. Bar vs Bench - DDT 2261 - 30.12.2013

4. Bar vs Bench - Contempt against ITAT Lawyer discharged DDT 2371 - 10.06.2014

Misdemeanor of Advocate - Party "not" to suffer

SHOULD a party suffer for the misdemeanor committed by the Advocate/Consultant?

Apparently, this question is as old as the profession itself.

The following observations of the Supreme Court hold a ray of hope for the unfortunate appellants who usually are at the receiving end for no fault of theirs.

Rafiq & Another v. Munshilal and Another AIR 1981 S.C. 1400 : 1981 (3) S.C.R. 509 .

"Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the Advocate that the latter appears in the matter when it is listed. It is no part of his job."

It was also contended that - "What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his Advocate."

In the context of this plea, the Apex Court observed as follows:-

"It is not proper that an innocent litigant, after doing everything in his power to effectively participate in his proceedings by entrusting his case to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanor of agent. For whatever reason the Advocate might have observed himself from the Court, the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate . However, we cannot be a party to an innocent party suffering injustice merely because his chosen Advocate defaulted. Therefore, we allow this appeal , set aside the order of the High Court both dismissing the appeal and refusing to recall that order."

In R. v. Diggines ( 1985) 1 A.E.R. 1073 held that:-

"Where an applicant was denied a hearing by a Tribunal through no fault of the applicant or the Tribunal but because of the fault of the applicant's advisors, there was nevertheless a breach of the audi alteram partem rule which entitled the applicant to judicial review of the Tribunal's decision if it was adverse to the applicant".

This decision has been followed in R. v. Secretary of State Ex. p.A1 Mehdawi (1989) 1 A.I.R. 777. It was held:

"Since the respondent had been deprived of a hearing by the adjudicator solely because of his solicitor's negligence the decision-making process was fundamentally flawed by a breach of the rules of natural justice even though neither the respondent himself nor the adjudicator were at fault."

Jurisprudentiol-Monday's cases

Service Tax

O-in-O clearly states that appellant had availed CENVAT credit on Input services - Works Contract Composition Scheme only requires that provider of service must not have taken CENVAT Credit on inputs - no reason to deny option exercised by appellant - Appeal allowed: CESTAT

REVENUE has raised an objection that CENVAT credit of Rs.2,69,580/ was availed on input services and this is not permissible for availing abatement under Notification 1/06. In this matter there are several judgements of the Tribunal such as Khyati Tours & Travels (supra), B.G. Shirke Technology (supra) and Ramkrishna Travels (supra) which have relied upon the Supreme Court judgment in the case of Chandrapur Magnet Wires 2002-TIOL-41-SC-CX all holding that once the credit has been reversed the benefit of Notification would be available. It would also a travesty of justice if service tax of Rs.85 lakhs approx. is demanded only because a small amount of credit was first taken and thereafter reversed. In view of the above, the demand of service tax is not sustainable.

Income Tax

Whether redemption fine paid to Customs authority is compensatory in nature and thus, allowable as legitimate business expenditure - YES: ITAT

THE assessee is engaged in the business of import and sale of goods. The assessee entered into an agreement with Export House for import of certain goods. The assessee entered into agreement with the Export House and imported a consignment of "Almonds in Shell". After the order of the Supreme Court that dry fruits could not be imported against the additional licences issued to Export Houses. The Collector of Customs, Madras confiscated the goods. The assessee made a payment of Rs. 75 lacs to Customs Authorities for releasing the goods and claimed the same as business expenditure. While making assessment of the assessee, the A.O. disallowed the payment of Rs. 75 lacs u/s 69-C on the plea that the source of expenditure was not explained.

The issue before the Bench is - Whether redemption fine paid to the Customs is compensatory in nature and thus, allowable as legitimate business expenditure. YES is the answer.

Central Excise

Because petitioner paid interest of barely Rs.12,000/- through CENVAT Credit instead of paying it in cash, all subsequent clearances were stigmatized by invoking rule 8(3A) of CER, 2002 - since this sub-rule has been struck down, all orders based on same cannot survive - Petition allowed: HC

ON one occasion, it appears that the petitioners paid the duty beyond the due date but within 30 days and were, therefore, required to pay interest of Rs.11,400/- on delayed payment of excise duty.

The petitioners paid such interest, however, by utilizing the CENVAT Credit.

The department held a belief that until such interest for delayed payment of dues was paid in cash all subsequent clearances by utilizing CENVAT Credit would be irregular.

See our Columns Monday for the judgements

Until Monday with more DDT

Have a nice weekend.

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