In the case at hand, there is a recovery of foreign currency from the co-accused. The relationship of employer and employee has been admitted both by the Petitioner and the co-accused. The statement of the co-accused and the other documents seized show that the co-accused was acting on the behest of the Petitioner.
The question which falls for consideration in this matter is not of petitioners suffering prejudice or not by grant of impugned Approval but is whether it results in failure of justice. It is in this context, grant of post decisional hearing assumes importance. Apex Court in Canara Bank v. V.K. Awasthy [2005] 6 SCC 321, has considered the issue of no prejudice vis-à-vis grant of post decisional hearing while observing as under:-
Whether issue of notice u/s 148 for reopening of assessment u/s 147 on the reason that assessee company is involved in accommodation entry in valid?
The Assessing Officer had specifically raised a query with regard to the supplies made in the domestic tariff area and the petitioner / assessee had given a detailed reply to the same. The Assessing Officer, after considering the reply furnished by the assessee, framed the assessment order
In the absence of any document showing that in fact possession of the premises were handed over to the Respondent in May, 2010 and in light of the stand taken by the Respondent that possession was handed over to it only in December 2010, the said issue raises a disputed question of fact which cannot be decided without evidence led by the parties. In the circumstances this Court is unable to come to the conclusion at this stage that the defence of the Respondent is sham, false or mala fide. If indeed there is an arbitration agreement between the parties there is no reason as to why it cannot avail of that remedy and must necessarily seek the remedy of winding up.
The company was bound by its own articles and could not have taken a plea contrary to what is contained therein. On the death of the original shareholder ‘J’, in view of his Will dated 23-6-1996 and the subsequent settlement arrived at between his mother and son ‘D’ and daughter ‘L’, on 19-2-2009, 1/3rd shareholding of ‘G’ vested in each of the aforenoted persons and thereafter the death of Gayatri Devi on 20-9-2009 pursuant to her Will dated 10-5-2009, the shareholding then devolved upon the petitioner group i.e. D and L who admittedly had a succession certificate from a competent Court of law recognizing them as holders of the aforenoted shares of the original holder Jagat Singh. In terms of section 381 of the Indian Succession Act, 1965, this evidence was conclusive for the transmission of shares of the companies in favour of the petitioner group.
The Department argued that the petitioner has an alternative remedy by way of appearing in the adjudicatory process as also by way of an appeal as provided under the statute. However, said proposition could not be agreed to inasmuch as the basis of the show-cause notice as well as the adjudication order was the instruction dated 28-4-2008.
The taxable event as per the Finance Act, 1994 is the providing of the taxable service. In the present case, we find that not only were the services admittedly provided prior of 14.05.2003 but also the bills have been raised prior to 14.05.2003. The only thing that happened after 14.05.2003 was that the payments were received after that date. That, in our view would not change the date on which the taxable event had taken place. Since the taxable event in the present case took place prior to 14.05.2003, the rate of tax applicable prior to that date would be the one that would apply. In the present case, the rate of 5% would be applicable and not the rate of 8%.
The question before us is what would be the rate of tax where (a) the service is provided by the chartered accountants prior to 01.04.2012; (b) the invoice is issued by the chartered accountants prior to 01.04.2012 but (c) the payment is received after 01.04.2012.
In the facts of this case the vessels were consistently registered under section 407 of the Merchant Shipping Act and had a valid certificate which was produced for consideration by the appellate authority who sought remand report. It is also not disputed that the vessel is a qualifying ship for sea in terms of clause (a) of section 115VD.
