Search Results For: 254


Maharashtra State Road Transport Corporation vs. CST (Bombay High Court)

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DATE: November 13, 2017 (Date of pronouncement)
DATE: June 15, 2018 (Date of publication)
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S. 254: While deciding an application for stay of demand, the Appellate Tribunal can only consider the prima facie case of merits. It cannot give a final finding on the merits and decide the appeal itself

The approach of the Appellate Tribunal is completely erroneous. What was heard before the Appellate Tribunal was the application for stay. There was no occasion for the Appellate Tribunal to go into the merits and decide the appeal itself by holding that it was devoid of any merits

ITO (Exemptions) vs. Chandigarh Lawn Tennis Association (ITAT Chandigarh)

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DATE: April 6, 2018 (Date of pronouncement)
DATE: April 10, 2018 (Date of publication)
AY: 2013-14
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CITATION:
Strictures passed against the Dept for confronting, showing resentment and displeasure to the Tribunal for granting interim stay against recovery of demand. The Dept is showing open defiance of, disrespect of, or of open resentment to, orders of the Tribunal, which may prove be very dangerous for the sanctity of the courts of law/Justice dispensation system of the country. Costs imposed on dept

The crux of our above discussion is that the department officials fully knowing that no useful purpose will be served either by moving the present application and even knowing that the present application was infructuous and non-maintainable even on the date of its filing, not only filed this application, but also insisted for arguments despite that the hearing on the main appeal had already been concluded on a previous date. The only motive behind this application is to confront and show resentment and displeasure to this Tribunal for granting interim stay against recovery in this matter. The wording of the opening part of the application for vacation of stay clearly reveals that the Department is showing her resentment not only about the passing of ex-parte interim stay order but also towards the directions of the Tribunal for directing her to refund the amount illegally recovered

The Shri Saibaba Sansthan Trust (Shirdi) vs. UOI (Bombay High Court)

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DATE: March 27, 2018 (Date of pronouncement)
DATE: April 5, 2018 (Date of publication)
AY: 2015-16
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CITATION:
Tax Recovery: CBDT should investigate arm twisting measures, dehors application of the law, adopted by the Revenue for recovery of tax and take corrective measures to ensure AOs are not overzealous in recovering maximum revenue before 31st March. Once the CIT(A) concludes hearing the appeal, the stay application becomes infructuous. The exercise by CIT(A) of taking up the stay application, after the appeal was heard, was only done so as to collect some revenue before 31st March, 2018. This is certainly not expected of an Appellate Authority who adjudicates disputes between the Revenue and the Assessee on a regular basis. The CIT(A) must not only be fair but appear to be so, in a country governed by Rule of law.

It would be best if the Central Board of Direct Taxes (CBDT) carry out the necessary investigation on the above allegations and if there is truth in it, it would take corrective action on the same. This is particularly because this conduct alleged on the part of the CIT(A) and the office of the CIT[E] appears to us to be an aberration, as normally we have noted that the officers Revenue do administer the Act with fairness and with loyalty to the Act. Therefore if the allegation in the petition are correct, then such failures on the part of its Officers needs to be corrected by the CBDT before it becomes the norm. Failing corrective measures by the CBDT, would only result in our entertaining petitions from orders under the Act as the alternative remedy would cease to be an efficacious remedy, if such arm twisting measures dehors application of the law, are adopted by the Revenue. We therefore direct the CBDT to carry out necessary investigation on the allegations made in the petition and if found correct, to take corrective measures to ensure that its Officers shall not be overzealous in seeking to recover maximum revenue before 31st March of any financial year, in total disregard of the law

M/s Sainath Enterprises vs. ACIT (ITAT Mumbai) (Third Member)

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DATE: November 18, 2016 (Date of pronouncement)
DATE: November 25, 2017 (Date of publication)
AY: 2007-08
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CITATION:
Withdrawal of appeal: The Petitioner/ Plaintiff is the ‘dominus litis’ and it is open to him to pursue or abandon his case. Withdrawal cannot be denied except when the person making the prayer has obtained some advantage/ benefit which he seeks to retain

Withdrawal of appeal: The Petitioner/ Plaintiff is the ‘dominus litis’ and it is open to him to pursue or abandon his case. Withdrawal cannot be denied except when the person making the prayer has obtained some advantage/ benefit which he seeks to retain

Thyrocare Technologies Limited vs. ITO (TDS) (Bombay High Court)

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DATE: September 11, 2017 (Date of pronouncement)
DATE: September 29, 2017 (Date of publication)
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High Court states that it is “most unhappy” with the manner in which the Tribunal has decided the appeal. The Tribunal remanded the matter to the AO without any discussion as to why the order of the CIT(A) is perverse or is contrary to law. It also did not pint out infirmities or errors of fact and law in the order of the CIT(A). The Tribunal failed to perform its duty of rendering a complete decision. It is obliged in law to examine the matter and reappraise and reappreciate all the factual materials

There is absolutely no discussion of the law and why the coordinate Bench decision rendered at Delhi is either distinguishable on facts or inapplicable. There is no discussion, much less any finding and conclusion that the order of the First Appellate Authority is perverse or is contrary to law. There are no infirmities, much less serious errors of fact and law noted by the Tribunal in the order of the Commissioner, which the Tribunal is obliged to and which order is therefore interfered by the Tribunal. Why the Tribunal feels it is its duty and obligation to interfere with the order of the First Appellate Authority, therefore, should be indicated with clarity. We have also not seen a reference to any communication or to any document which would indicate that the six queries raised by the Tribunal on the assessee have not been answered, much less satisfactorily. The Tribunal should have, independent of the statements, referred to such of the materials on record which would disclose that the assessee has entered into such arrangements so as to avoid the obligation to deduct the tax at source. If the arrangements are sham, bogus or dubious, then such a finding should have been rendered. Therefore, we are most unhappy with the manner in which the Tribunal has decided these Appeals. We have no alternative but to set aside such order and when the last fact finding authority misdirects itself totally in law. It fails to perform its duty. It has also not rendered a complete decision. Once the Tribunal was obliged in law to examine the matter and reappraise and reappreciate all the factual materials, then it should have performed that duty satisfactorily and in terms of the powers conferred by law

Ultratech Cement Ltd vs. ACIT (Bombay High Court)

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DATE: April 18, 2017 (Date of pronouncement)
DATE: April 21, 2017 (Date of publication)
AY: 2008-09
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CITATION:
An additional ground (relating to claim u/s 80-IA) cannot be permitted to be raised if the necessary evidence that the assessee is entitled to the claim is not on record. The fact that claim has been allowed by the AO in a subsequent year and that there is no reason why the claim should not be allowed in the present year is irrelevant. Also, the assessee must satisfy the appellate authority that the ground now raised was bona fide and the same could not have been raised earlier for good reasons

We note that it is an undisputed position before us that for the subject assessment year, the appellant assessee had not claimed benefit of Section 80IA of the Act in respect of its Jetty / Port either before the Assessing Officer or before the CIT(A). A claim for benefit under Section 80IA of the Act can only be made if the infrastructure facility such as Jetty / Port is, among other things, being run on the basis of an agreement for either developing or operating and maintaining or developing, operating and maintaining a new infrastructure facility. The sine qua non provided in SubSection (7) of Section 80IA of the Act is the furnishing along with its Return of Income, a report of audited accounts in Form 10CCB as required under Rule 18BBB(3) of the Act. The Form 10CCB which is required to be filed along with Return of Income has various details to be filled in, including the initial assessment year from which the deduction is being claimed, the nature of the activity carried out with regard to the infrastructure facility, namely, whether it is for developing or developing and operating or for developing, operating and maintaining the new infrastructure facility. It is only on examination of those details as submitted by the auditor in Form 10CCB that the claim of deduction can be considered. It is undisputed that for the subject assessment year, no Form 10CCB has been filed by the appellant assessee. Therefore, there is no evidence on record for subject assessment year to allow the claim. The submission of Mr.Agrawal for the appellant that primary evidence in the form of jetty is on record is not acceptable. Mere ownership or existence of jetty is not evidence of eligibility to the benefit of Section 80IA of the Act, which is admittedly conditional upon satisfaction of certain requirements as provided therein

Teena Gupta vs. CIT (Allahabad High Court)

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DATE: March 30, 2017 (Date of pronouncement)
DATE: April 8, 2017 (Date of publication)
AY: 1997-98
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CITATION:
A question relating to jurisdiction which goes to the root of the matter can always be raised at any stage. Issues relating to initiation of s. 147 proceedings and/or service of notice are questions relating to assumption of jurisdiction. If an issue has not been decided in appeal and has simply been remanded, the same can be raised again notwithstanding with the fact that no further appeal has been preferred (Sun Engineering Works 198 ITR 297 (SC) explained)

The principles laid down by the Apex Court in the case of Sun Engineering Works P. Ltd. [1992] 198 ITR 297 (SC) would not apply as the appellant is not claiming any deduction or relief on the taxibility of any item in the reopened assessment proceedings which had not been claimed in the original assessment

Prashanth Projects Ltd vs. DCIT (Bombay High Court)

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DATE: July 19, 2016 (Date of pronouncement)
DATE: August 30, 2016 (Date of publication)
AY: 2005-06
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Condonation of delay: An appeal wrongly filed before the AO and not CIT(A) is an unintentional lapse of the assessee. The AO ought to have returned the appeal to enable the assessee to take corrective steps. The likelihood of error is inherent in human nature The power of condonation is in view of human fallibility and must be exercised in cases of bona fide lapses

Human interaction is influenced by human nature. Inherent in human nature is the likelihood of error. Therefore, the adage “to err is human”. Thus, the power to condone delay while applying the law of limitation. This power of condonation is only in view of human fallibility. The laws of nature are not subject to human error, thus beyond human correction. In fact, the Apex Court in State of Madhya Pradesh Vs. Pradip Kumar 2000(7) SCC 372 has observed to the effect that although the law assists the vigilant, an unintentional lapse on the part of the litigant would not normally close the doors of adjudication so as to be permanently closed, as it is human to err

Zuari Global Ltd. vs. Pr. CIT (Bombay High Court)

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DATE: February 16, 2016 (Date of pronouncement)
DATE: April 20, 2016 (Date of publication)
AY: -
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CITATION:
Failure by ITAT to grant an adjournment requested due to bereavement results in breach of principles of natural justice

In the peculiar facts and circumstances of the case and in the interest of justice, the learned Tribunal could have given an opportunity of hearing to the appellant for the subsequent date. Having failed to grant a short adjournment has resulted in passing the impugned order in breach of the principle of natural justice which calls for the interference of this Court

Dimension Data Asia Pacific Pte Ltd vs. DCIT (ITAT Mumbai)

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DATE: March 8, 2016 (Date of pronouncement)
DATE: April 5, 2016 (Date of publication)
AY: 2011-12
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CITATION:
100% stay of demand has to be granted in high pitched assessments as per Instruction No. 96 of 1969

The Tribunal granted 100 percent stay of demand because (a) The assessed income was more than 10 times the returned income. (Instruction 96 of 1969 was relied upon) & (b) The stand taken by the AO was at variance with the stand taken by TPO

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