TaxTMI 
TaxTMI 
2022 (7) TMI 1172
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....eto, mandamus is also sought for grant of interest on the delayed release of above-mentioned pre-deposit i.e., Rs.2 crores. 3. We may indicate at the very outset that insofar as prayer clauses (b) and (c) of the writ petition are concerned, they concededly stand satisfied during the pendency of the proceedings. Rs. 2 crores was refunded to the petitioner, pursuant to the order dated 08.01.2020 passed by this Court. 3.1. We are informed that the said sum was refunded to the petitioner, along with interest. 4. It is important to note that the impugned notice dated 15.11.2018 seeks to revise the order dated 22.03.2017 passed by the Special Commissioner - II i.e., the Objection Hearing Authority [hereafter referred to as "OHA"] and the consequent order dated 26.02.2018 passed by the Assessing Officer [hereafter referred to as "AO"]. 5. The respondent seeks to revise the aforementioned orders passed by the OHA and the assessment order, by taking recourse to the powers conferred on the said authority under 74A of the Act. 6. Before we proceed further, it is relevant to have a brief overview of the facts obtaining in the instant case, which have led to the institution of th....
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....and the consequent assessment order dated 26.02.2018 passed by the AO. 9. We may also note that this Court, via the very same order whereby it had directed the refund of the amount made over by the petitioner as predeposit, had also directed the respondent to furnish reasons for issuing the impugned show-cause notice dated 15.11.2018, to the petitioner. As adverted to hereinabove, this order is dated 08.01.2020. 9.1. There is no dispute that the reasons which were available in the respondent's record, have been furnished to the petitioner's counsel. Submissions of Counsel: 10. Mr Rohan Shah, who appears on behalf of the petitioner, has, broadly, made the following submissions: 10.1. A perusal of the reasons furnished by the respondent would show that they do not satisfy the twin test prescribed under Section 74A for triggering the revisionary jurisdiction. According to Mr Shah, the authority exercising revisionary jurisdiction would have to demonstrate that the orders passed by the OHA and the AO i.e., orders dated 22.03.2017 and 26.02.2018 respectively were both erroneous and prejudicial to the interests of the revenue. 10.2. It was further contended by Mr Shah t....
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....bsp; xxx xxx I have heard both the parties and I am of the view that if Apple Watch is fully synced with the main device only then it would show correct time and it would not work if it is not paired and synced with the main device like an Iphone 5S or above category and the correctness of time cannot be ensured if the main device is taken away beyond the specified range. Moreover, except time various other features are available for the use of patrons like receipt of message, email, display of incoming calls, taking up of calls, making outgoing calls and other application based features like health, fitness, music, camera, navigation etc. therefore restricting classification simply to be a watch does seem prudent moreover it should be classified as a transmission device which works only with the mother device when paired and connected. The contention of the objector that the device Apple watch qualifies to be a transmission device is well substantiated by the Ministry of Finance notification No. 12/2016 - Central Excise (N.T) dated 01.03.2016. Also the Advance Ruling Authority for Central Excise, Customs ....
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....hat Mr Shah is right, an appeal would lie from the order passed by the OHA, which is an order passed under Section 74, and which is one of the sections referred to in Section 76(1). This provision enables an appeal to be preferred with the Appellate Tribunal. 16.1. The explanation to Section 76 of the Act (extracted above), on which reliance is placed by Mr Satyakam, to contend that no appeal would lie against the order of the OHA, seems to be confined to those cases where the Commissioner chooses not to appeal to the Appellate Tribunal, but instead, opts to make a reassessment of tax where he is of the opinion that further tax is owed. 16.2. If Mr Satyakam's submission is accepted that an error concerning classification had crept in, then, in our view, an appeal could have been instituted with the Appellate Tribunal, which then would have examined the issue, both on facts as well as the law. 16.3. However, that opportunity seems to have been lost by the respondent/revenue, by not triggering the appeal process under Section 76 of the Act. 17. Be that as it may, this aspect need not detain us, for the reason that the reasons placed before us, which, as indicated above, a....
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....o the fact that whether the watch is to be used without the mobile device.) Which is, in a sense a replication of the second concern raised by the concerned authority, which also veered around revenue implications. (v). The possibility of the other manufactures pairing products bearing different rates of tax and thus getting unintended benefit of lower rate of tax. 18. None of these issues zeroed down on what was the error committed by the OHA. As noted above, the concern of the respondent primarily was that it could have revenue implications, both in the concerned quarter, as well as in the future. 18.1. These reasons, if at all, could only have fulfilled the prerequisite captured in the second limb of Section 74A i.e., prejudicial to the interests of revenue. 18.2. However, as indicated above, the concerned authority was also required to demonstrate that the order was erroneous. The twin test that the revising authority was required to meet, was clearly not met in the instant case. 18.3. In the context of Section 263 of the Income Tax Act, 1961, which is a pari materia provision, the Supreme Court in Malabar Industrial Company Ltd. case has made the following....