A development agreement is one where the land-holder provides the land. The Builder puts up a building. Thereafter, the land owner and builder share the constructed area. The builder delivers the `owner’s share’ to the land-holder and retains the `builder’s share’. The land-holder sells/transfers undivided share/s in the land corresponding to the Builder’s share of the building to the builder or his nominees. The land-holder will have no say or control in the construction or have any say as to whom and at what cost the builder’s share of apartments are to be dealt with or disposed of. Such an agreement is not a “joint venture” in the legal sense. It is a contract for “services”.
Against the judgement of the Supreme Court in UOI vs. Azadi Bachao Andolan 263 ITR 706, a review petition was filed. That petition was dismissed by a division bench of 2 judges. Upon that dismissal, a curative petition was filed. That curative petition has been dismissed by a bench of 5 judges.
merely because in some cases the revenue has not preferred appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts.
Where the High Court was satisfied that the assessment order had been back-dated and directed that a fresh order be passed by a different AO and the assessee filed an appeal arguing that the assessment proceedings should have been declared null and void, held:
(a) All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. However, exercise of jurisdiction in a wrongful manner cannot result in a nullity – it is an illegality, capable of being cured in a duly constituted legal proceedings.
Where the Appellate Commissioner disposed of the appeal by a non-reasoned order, held that a statutory appeal could not be disposed of in that manner. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. Failure to give reasons amounts to denial of justice.”
Where the High Court dismissed the appeals filed against a PSU on the ground that an application for permission of the COD had not been obtained within the period of 30 days as laid down in ONGC’s case, held that there was actually no rigid time frame indicated by the Supreme Court. The emphasis on one month’s time was to show urgency needed.
The amount of share application money received by a Company from alleged bogus shareholders cannot be regarded as undisclosed income under S. 68 of I. T. Act for the simple reason that if the names of the alleged bogus shareholders are given to the AO, then the Department is free to proceed to re-open their individual assessments in accordance with law.
Once the assessee has moved the rectification application within four years from the date of the appeal order, the Tribunal cannot reject that application on the ground that four years have lapsed, which includes the period of pendency of the application before the Tribunal.The Tribunal is bound to decide the application on merits and cannot dismiss the same on the ground of limitation.
It is an established principle of law that in a third party auction, the purchaser’s interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise.
Transportation cost incurred by a foreign assessee in providing transportation facility for movement of offshore employees from their residence in home country to the place of work and back is liable to Fringe Benefit Tax u/s 115WA.