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Modification pleas cannot be outsourced by Settlement Commission to Secretary - Orders quashed

DDT in Limca Book of Records - Third Time in a row

TIOL-DDT 2780
05 02 2016
Friday

THE Settlement Commission (both direct and indirect taxes) has only former Revenue Officers as its Members and quite often these Members forget the fact that they are no more revenue officers, as these two interesting cases would show.

In the first case concerning Service Tax, the CCESC had passed an order u/s 32F(5) of the CEA, 1944 rejecting the application filed for settlement by holding it as impermissible u/s 32E of CEA, 1944.

The long and short of this service tax case is that the applicant was served a SCN proposing to recover service tax of Rs. 36,61,893/- for FY 2007-2008 to 2010-2011 along with interest and penalties. They accepted that there was a short payment of service tax and paid an amount of Rs. 20,84,792/- as also interest of Rs. 16,77,519/-, which they said was their liability. Later, they approached Settlement Commission and sought immunity from penalties and prosecution.

The Revenue filed a report dated 5th August 2014 u/s 32F(1) and submitted that the difference between the values accepted by the applicant and those claimed by the Revenue was substantial; that the applicant had not substantiated their claim with any documents from their customers; that there were no corresponding entries in the audited Profit & Loss account and Balance Sheet to reflect any write off; and that the applicant had not accepted their full liability.

On 30th October 2014, the Settlement Commission directed the Revenue to examine the applicants' calculations and present a factual report within 15 days. By their letter dated 31st October 2014, the applicant submitted a reconciliation statement and various supporting documents. The Revenue did not submit any verification report as directed by the Settlement Commission.

On 23rd December 2014, the applicant was informed that since one of the Members of the Settlement Commission has retired, a fresh date for re-hearing of the matter was scheduled on 15th January 2015. At that hearing, the Settlement Commission noted that no report had been received so far from the Revenue despite specific directions in that behalf. The Settlement Commission, therefore, adjourned the matter with a specific direction to submit a report within 10 days.

Like a bolt from the blue the applicant received the Final Order dated 18th February 2015 rejecting their application for settlement as being not admissible. The Final Order indicated that the Revenue had given its Report on 4th February 2015 and this showed that the claim of the applicant could not be accepted.

Before the High Court, the applicant petitioner challenged this order on the primary ground that the Revenue's Report was never supplied to the Petitioners nor were the Petitioners given an opportunity of dealing with it; that the Settlement Commission accepted the Revenue's contentions regarding discrepancies without giving the Petitioners an opportunity to explain.

The High Court observed -

"The Settlement Commission seems to have straightaway accepted that Report not only as gospel, but as totally incontrovertible, and incapable of being subjected to any rational settlement. There is absolutely no basis for this, other than the Settlement Commission saying, to all intents and purposes, that the matter is apparently too onerous and too taxing on the Settlement Commission's time, energy and resources. This is wholly unacceptable. The very least the Settlement Commission ought to have done, in our view, was to give the Petitioner an opportunity to respond to the Revenue's observations and Report. Had the Petitioners then failed to do so, or if, on a close examination, that response was found on merits to be without substance, the application could have been dealt with accordingly. But to deny that opportunity and to thereby short-circuit a properly brought Settlement Case in this fashion is not, in our view, in keeping with the statutory mandate at all. Without this balancing and taking into account the views and submissions on both sides, we fail to see how any "settlement", can be worked out or how the Settlement Commission can possibly discharge its bounden statutory duty. Indeed, it seems to us extremely strange that the Settlement Commission has adopted this approach given the obvious public purpose of the introduction of Chatper V to the CEA. By a summary rejection in this fashion of the settlement application the interest of the assessee is not met; but equally, and perhaps more importantly, the interest of the Revenue and, therefore, of public funds in the hands of Government, is also defeated. The entire purpose of ensuring a return to Revenue and avoiding costs in protracted litigation is lost."

Holding that there had been a fatal violation of the principles of natural justice, the final order was quashed and set aside and the matter remanded to the CCESC for fresh consideration.

Please see 2016-TIOL-159-HC-MUM-ST.

In the second case, an order dated 27th August, 2015 was passed by the Income Tax Settlement Commission. Incidentally, the applicant had sought payment in at least four quarterly installments, payable in case any additional tax liability, was determined. As this submission was not considered, the Petitioner filed a rectification application dated 25th Sep, 2015 to the Commission. The Commission agreed that there was a mistake apparent from record. However, without considering the assessee's prayer for four quarterly installment facilities, the Commission passed an order dated 20th Oct, 2015 granting four monthly installments to pay the tax along with interest. Since this order was passed without hearing, the assessee filed a further application for rectification dated 23rd Oct, 2015 pointing out the circumstances which would make it impossible for them to comply with the orders.

Strangely, this application for rectification was disposed of by the Secretary of the Commission.

The applicant filed a Writ Petition against this communication and this is what the Court observed -

"We are unable to understand how an application for rectification of orders passed by the Settlement Commission can be disposed of by the Secretary of the Commission who would have no role to play in passing of the orders dated 27th Aug, 2015 and 20th Oct, 2015 which was sought to be rectified. It is for the Commission to consider the applications which are filed before it seeking the modification or rectification of the orders passed by it and same cannot be outsourced by the Commission to its Secretary. In view of the above and in the peculiar facts of the present case, we set aside the orders dated 20th October, 2015 being the order passed on assessee's rectification application u/s 245(D)(6B) as it is an order passed not only without hearing the assessee but also without recording any reasons why the rectification application made by the assessee is not being allowed in its entirety."

See 2016-TIOL-208-HC-MUM-IT.

Customs - New Exchange Rates from Today

CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from today. The USD is 68.45 Rupees for imports and 67.40 Rupees for exports.

Notification No. 18/2016-Cus (NT)., Dated: February 04, 2016

SCOMET Export permission for 'Stock & Sale' purposes and for export of spare parts

THE DGFT has incorporated para 2.79A and para 2.79B in Handbook of Procedure 2015-2020.

This will have the following effect -

i. The provision of SCOMET [Special Chemicals, Organisms, Materials, Equipment & Technology items] export permission for 'stock & sale' purpose will facilitate bulk export which may cater to orders of multiple end users from the 'stock point' subject to subsequent permission of the licensing authority for re-transfer to definite end user.

ii. The facility for permission for export of spare parts along with the main equipment will obviate the need for seeking permission for spares through a separate application.

iii. Both the measures will have the effect of reducing the transaction time and cost.

DGFT Public Notice 60/2015-20, Dated: February 3, 2016

Export of sesame seeds to EU

THE Central government has made amendments in Schedule 2 of ITC (HS) Classification of Export & Import Items and notified the conditions for export of sesame seeds to European Union countries.

DGFT Notification no. 37/2015-2020, Dated: February 3, 2016

Debit Cards, ATM card is currency - INR Rs.25,000/- per person is what you can take out of India

IT'S Circular time. The Reserve Bank of India, yesterday, came out with a flurry of Circulars, all aimed at further liberalisation and a bit of regulation. Take a look.

Sr. no.

Circular no.

Description & short synopsis

1

41/RBI., Dated: February 04, 2016

Deferred Payment Protocols dated April 30, 1981 and December 23, 1985 between Government of India and erstwhile USSR

+ Rupee value of the Special Currency Basket revised.

2

42/RBI., Dated: February 04, 2016

Settlement of Export/ Import transactions in currencies not having a direct exchange rate

+ Further liberalisation of the procedure to facilitate settlement of export and import transactions. 

3

43/RBI., Dated: February 04, 2016

Foreign Exchange Management (Acquisition and Transfer of Immovable Property outside India) Regulations, 2015

+ In terms of these Regulations, acquisition or transfer of any immovable property outside India by a person resident in India would require prior approval of Reserve Bank except in the certain cases.

4

44/RBI., Dated: February 4, 2016

Foreign Exchange Management (Foreign currency accounts by a person resident in India) Regulations, 2015

+ These regulations seek to regulate opening and maintenance of foreign currency accounts in and outside India by a person resident in India.

+ A "Foreign Currency Account" means an account held or maintained in currency other than the currency of India or Nepal or Bhutan.

5

45/RBI., Dated: February 04, 2016

Foreign Exchange Management (Export and Import of Currency) Regulations, 2015

+ Export and import of Indian currency and currency notes

+ May take outside India (other than to Nepal and Bhutan) currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.25,000 (Rupees Twenty Five Thousand only) per person.

+ Import of Foreign Exchange into India

+ Export of Foreign Exchange and Currency Notes

+ Export and Import of currency to or from Nepal and Bhutan

+ No person shall take or send out of India the Indian coins which are covered by the Antique and Art Treasure Act, 1972.

6

46/RBI., Dated: February 04, 2016

Foreign Exchange Management (Realisation, repatriation and surrender of foreign exchange) Regulations, 2015

+ Duty of persons to realise foreign exchange due

+ Manner of Repatriation

+ Period for surrender of realised foreign exchange

+ Period for surrender of received/realised/unspent/unused foreign exchange by Resident individuals

+ Nothing in these regulations shall apply to foreign exchange in the form of currency of Nepal or Bhutan.

7

47/RBI., Dated: February 04, 2016

Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2015

+ Limits laid down for possession or retention of foreign currency or foreign coins.

+ A person resident in India but not permanently resident therein may possess without limit foreign currency in the form of currency notes, bank notes and travellers cheques, if such foreign currency was acquired, held or owned by him when he was resident outside India and, has been brought into India in accordance with the regulations made under the Act.

8

48/RBI., Dated: February 04, 2016

Definition of "Currency", 2015

+ Debit cards, ATM cards or any other instrument which can be used to create a financial liability may be defined as currency.

9

49/RBI., Dated: February 04, 2016

Post Office (Postal Orders/Money Orders), 2015

+ General permission has been given to any person to buy foreign exchange from any post office in India in the form of postal order or money order.

The Budget has to be viewed as a package, always -RBI Governor

Diskette/Floppy are passé - cultivate culture of email attachments & pen drives

A netizen writes -

Rule 4 of the Right to Information Rules, 2012 as appearing on the http://www.righttoinformation.gov.in/is extracted below -

4. Fees for providing information - Fee for providing information under sub-section (4) of Section 4 and sub-sections (I) and (5) of Section 7 of the Act shall be charged at the following rates, namely:-

(a) rupees two for each page in A-3 or smaller size paper;

(b) actual cost or price of a photocopy in large size paper;

(c) actual cost or price for samples or models;

(d) rupees fifty per diskette or floppy;

(e) price fixed for a publication or rupees two per page of photocopy for extracts from the publication;

(f) no fee for inspection of records for the first hour of inspection and a fee of rupees 5 for each subsequent hour or fraction thereof; and

(g) so much of postal charge involved in supply of information that exceeds fifty rupees.

Some suggestions I would like to make in this regard -

+ When the government is emphasising on going digital, the use of post should be avoided as far as possible and correspondence should be entered via email only. Also, the collated information should be sent as pdf attachments rather than taking photocopies and charging the applicant for the same. Digitisation would also help the department in safe-keeping of records in the days to come.

+ Usage of 'diskette' or 'floppy' are passe - in fact, they may not be available today and, therefore, pen-drive culture ought to be put into practice.

Until Monday with more DDT

Have a nice weekend.

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