TaxTMI 
TaxTMI 
2026 (8) TMI 1012
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Ports. ii) Directorate of Revenue Intelligence initiated investigation alleging that petitioner deliberately undervalued imported goods, by remitting differential amount outside regular banking channels. During investigation, hard disk of petitioner's office computer was seized. Forensic examination allegedly revealed e-mail correspondence, invoices and payment particulars indicating that two sets of invoices had been generated, one reflecting the actual transaction value and another showing a lesser value for customs assessment. iii) On completion of investigation, a Show Cause Notice dated 05.08.2009 came to be issued proposing rejection of the declared transaction value, re-determination of assessable value, confiscation of goods, recovery of differential customs duty with interest and imposition of penalties under the Customs Act, 1962. iv) Adjudication was pending for several years. During the pendency, proceedings underwent transfers between different Commissionerates and were also kept in the Call Book in view of pendency of litigation relating to the jurisdiction of DRI officers before the Supreme Court. Eventually, the impugned Order-in-Ori....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xamine persons connected with overseas documents were rejected without assigning valid reasons. 4.5. Several Bills of Entry had attained finality and relevant records relating thereto were not furnished despite request. Reliance was placed on decisions of the Supreme Court and various High Courts dealing with delayed adjudication, natural justice and jurisdiction of DRI officers. 4.6 Though attempt was made to suggest that delay in adjudication was in view of the matter being consigned to call book, no details of call - book procedure was submitted to this Court, thus the above contention is liable to be rejected. 5. Case of Respondents: 5.1. Learned Standing Counsel appearing for the respondents would submit that writ petition itself is not maintainable in view of the efficacious statutory remedy of appeal available under Section 129A of the Customs Act, 1962. Petitioner cannot bypass the appellate mechanism provided under statute. 5.2. That investigation revealed documentary evidence establishing deliberate undervaluation of imported goods. Electronic records recovered from petitioner's computer, together with foreign remittance records and contemporaneous corr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 7.4. To appreciate the scope of amendment to Section 28 of the Act, more importantly, Sub-Section (9) to Section 28 of the Act, it may be relevant rather necessary to compare and contrast the said sub-section as it existed prior and post amendment vide Finance Act, 2018 (Act 13 of 2018). The following Table is relevant in this regard. Prior Finance Act, 2018 Post Finance Act, 2018 The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, where it is possible to do so in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, where it is possible to do so in respect of cases falling under sub-section (4). The proper officer shall determine the amount of duty or interest under sub-section (8),- (a) within six months from the date of notice, 3*** in respect of cases falling under clause (a) of sub- section (1); (b) within one year from the date of notice, 3*** in respect of cases falling under subsection (4). [Provided that where the proper officer fails to so determine within the specified period, any officer senior in rank to....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of these Rules is "not at all practicable" in the context of the RDDB Act. 24. The interchangeable use of the words "possible" and "practicable" was previously established by a three-Judge Bench of this Court in N.K. Chauhan v. State of Gujarat [(1977) 1 SCC 308 : 1977 SCC (L&S) 127] wherein this Court observed that in simple Anglo-Saxon practicable, feasible, possible, performable, are more or less interchangeable. 25. Webster's defines the term "practicable" thus: "practicable.-(1) That can be put into practice; feasible. (2) That can be used for an intended purpose; usable." Black's Law Dictionary similarly defines "practicable" as follows: "practicable.-adj. (16c) (Of a thing) reasonably capable of being accomplished; feasible. 26. It is, therefore, reasonable to hold that the phrase "as far as possible" used in Section 29 of the RDDB Act can at best mean that the Income Tax Rules may not apply where it is not at all possible to apply them having regard to the scheme and the context of the legislation" 7.8. It thus appears that normally adjudication must be made within one year from the date of issuance of notice "where it is possible to d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch did not provide for limitation it was held that the proceedings were illegal on the premise that the same has been made after an unreasonable delay: (i) J.M.Baxi and Co. Vs. UOI reported in 2016 (336) E.L.T. 285 (Mad): "16. In the order of adjudication dated 07.01.2000, there is nothing to indicate as to what transpired from 23.5.1995 up to 07.01.2000, except for two dates. One is a letter dated 23.10.1999 where the appellant sought an injury to be inflicted upon them voluntarily, reminding the Department of the pendency of the show cause notice. The next date is 04.01.2000 when a personal hearing took place. Therefore, the order of adjudication certainly had not taken place within a reasonable period. Though the statute does not prescribe a period of limitation for passing an order of adjudication, the law is well settled that anything in respect of which no period of limitation is prescribed, should be done at least within a reasonable time. What is reasonable time, would depend upon the facts and circumstances of each case. In cases of this nature, where the weight of the cargo discharged by the vessel of a Steamer Agent is questioned, it is not possible for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hus even on this score, the time taken for conclusion of proceedings appears inordinately delayed and it thus unacceptable. The impugned orders are quashed." 7.11. In other words, it would appear that firstly to fall within the expressions "where it is possible to do so", it must be shown to be completion of adjudication within one year from the date of notice is impracticable and the extended period, if any, cannot be unreasonable. The impugned order passed almost after 14 years from the date of issuance of show cause notice cannot be sustained. 7.12. Limitation vide Finance Act, 2018 (Act 13 of 2018) dated 28.03.2018 - applicability to impugned proceeding:- The amendment to Sub Section (9) to Section 28 of the Act, vide Finance Act, 2018 (Act 13 of 2018), whereby the expressions "where it is possible to do so", was omitted and the proviso was added whereby it was provided that the above period of one year may be extended by any officer senior in rank to the proper officer by a period of one year in respect of notice issued under sub subsection (4) to Section 28 of the Act. It is no longer res integra that limitation is part of procedural law, thus normally retrospecti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Section 297(2)(d)(ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to reopen the assessment of an assessee in a case where the right to reopen the assessment was barred under the old Act at the date when the new Act came into force. It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court [Induprasad Devshanker Bhatt v. J.P. Jani, 1964 SCC OnLine Guj 18 : (1965) 58 ITR 559] by the grant of a writ." e) S.S. Gadgil v. Lal and Co. [AIR 1965 SC 171] : "13. As we have already pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under the Income Tax Act before it was amended, ended on 31-3-1956. It is true that under the amending Act by Section 18 of the Finance Act, 1956, authority was conferred upon the Income Tax Officer to assess a person as an agent of a foreign party under Section 43 within two years from the end of the year of assessment. Butill not assist him to commence a proceeding even though at the date when he issu....