As the assessee had earned tax-free dividend income, s.14A was applicable. The question of determination of the disallowable amount has to be worked out by the AO as per Rule 8D as held the Special Bench judgement in ITO Vs. Daga Capital Management Pvt. Ltd. (2008) 119 TTJ (Mum) (SB) 289. However, the disallowance u/s 14A in the fresh proceedings cannot exceed the original amount disallowed by the AO in the assessment order.

The judgement in UOI vs. Dharmendra Textile Processors has to be understood in the correct perspective. It does not make a radical change in the law nor does it affect the basic scheme of s. 271 (1) (c). Even in K P Madhusudanan vs. CIT 251 ITR 99, the assessee’s plea to the effect that ‘revenue was required to prove mens rea of a criminal offence’ before penalty u/s 271(1)(c) can be imposed was rejected. Penalty u/s 271 (1) (c) has been held to be ‘civil liability’ in contradistinction to prosecution u/s 276C. It is wrong to infer that because the liability is a “civil liability”, it ceases to be penal in character. There is no contradiction in a liability being a civil liability and the same liability being a penal liability as well, though a civil liability cannot certainly be a criminal liability as well. As observed in Om Prakash vs. UOI AIR 1984 SC 1194 @ 1209 “A penalty imposed by the sales tax authorities is a civil liability, though penal in character”.

In the light of the judgement of the Supreme Court in ONGC vs. CIDCO (2007) 7 SCC 39 and that of the Madras High Court in Tamilnadu Warehousing Corp Ltd vs. DCIT (2008) 15 DTR 67, even appeals involving State Government undertakings require approval of the Committee on Disputes. The appeal can be proceeded with only if the appellant is either able to obtain the requisite COD clearance or file satisfactory evidence to prove that a COD to deal with State – Centre disputes has not been formed.

Note: The judgement of the Special Bench in DCIT vs. Maharashtra State Road Transport Corporation 100 ITD 187 is no longer good law in view of the judgements referred to above.

Where the assessee floated a GDR issue and made payments to the foreign lead manager by way of management and underwriting commission etc and the AO took the view that the said payments was chargeable to tax in the hands of the recipient u/s 9 (1)(vii) as “fees for technical services” and that the assessee ought to have deducted tax thereon u/s 195 and on account of its failure to do so was liable to be treated as an “assessee in default” u/s 201 and the question arose whether the said order u/s 201, having been passed after the expiry of four years from the end of the relevant financial year, was barred by limitation, in the absence of any provision in the Act HELD:

(a) The argument that s. 201(1) (pre amendment by the FA 2008 w.r.e.f 1.6.2002) applies only where there is a failure to deposit the deducted tax and not where there is a failure to deduct tax and that it is only after the amendment that a failure to deduct tax is covered is not acceptable as the amendment is clarificatory of the legislative intent;

(b) Though s. 201 (1) does not impose any time limit for the initiation of proceedings or the passing of an order, a reasonable time limit would have to be read in as otherwise the authorities would have an indefinite period to take action and the sword of uncertainty would hang forever over an assessee;

Where the assessee constructed a project in Pune in which the percentage of commercial area to the total area was 20.83% and the said project was approved by the Pune Municipal Corporation as a “New/ Residential + Commercial project” (and not as a “housing project”) and the question arose whether prior to the amendment of s. 80 IB (10) w.e.f. 1.4.2005 (which provides that the commercial area in a housing project should not exceed the lesser of 5% of the built up area or 2,000 sq ft), the assessee’s project was a “housing project” eligible for deduction u/s 80-IB (10), HELD:

(i) S. 80 IB (10) is aimed at promoting construction of housing projects so as to address the problem of shortage of dwelling units. It cannot be said that the object is to encourage house building activity per se, irrespective of whether these are dwelling or commercial units;

(ii) However, given that under the DC Rules (of Pune) there cannot be a pure residential project and it is incumbent on the developer to reserve a part of the plot for shopping, commercial use of area must be regarded as an integral part of a housing project and does not vitiate the character of a housing project;