Category: All Judgements

Archive for the ‘All Judgements’ Category


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DATE: (Date of pronouncement)
DATE: January 1, 2009 (Date of publication)
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HELD in the context of s. 158BE (1) (b) which imposes a time limit for making a block assessment order with reference to the date of execution of the last of the authorizations for search u/s 132 which in turn is deemed to be the date of the conclusion of search as recorded in the last panchnama drawn that

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DATE: (Date of pronouncement)
DATE: January 1, 2009 (Date of publication)
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The authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If any assessee, under a mistake, misconceptions or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. If particular levy is not permitted under the Act, tax cannot be levied applying the doctrine of estoppel.

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DATE: (Date of pronouncement)
DATE: December 26, 2008 (Date of publication)
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The transfer pricing provisions are applicable to a well defined class which meets the test of intelligible differentia. It also meets the test of rational relationship to the object i.e. to determine the real income. There is no ambiguity or absurd consequence of application of Chapter X to persons who are subject to jurisdiction of taxing authorities in India

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DATE: (Date of pronouncement)
DATE: December 26, 2008 (Date of publication)
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The fiction of s. 9 is subject to the territorial nexus doctrine and income that arises out of a transaction requires to be apportioned to each of the territories. Whatever is payable by a resident to a non-resident by way of fees for services would not always come within the purview of section 9(1)(vii) of the Act. It must have sufficient territorial nexus with India so as to furnish a basis for imposition of tax

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DATE: (Date of pronouncement)
DATE: December 23, 2008 (Date of publication)
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CITATION:

Where the assessees challenged by writ petitions the orders passed by the Transfer Pricing Officer (“TPO”) determining the Arm’s Length Price (“ALP”) in relation to “International transactions” on the grounds that the said orders were passed without granting an oral hearing and without considering the documents and information filed by the assessees and without disclosing the information and documents obtained by the TPO which were used by him in the determination of the ALP, HELD, allowing the challenge: S. 92CA (3) imposes an obligation on the TPO to accord an oral hearing to the assessee. Even otherwise, an order entailing civil and penal consequences cannot be passed without a hearing.

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DATE: (Date of pronouncement)
DATE: December 21, 2008 (Date of publication)
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CITATION:

In CCE vs. Punjab Fibres Ltd (223) E.L.T. 337 the Supreme Court held that the High Court has no power to condone delay in filing of a Reference Application u/s 35H(1) of the Excise Act on the ground that where the statute specifies a limitation period, s. 5 of the Limitation Act would not apply. There are doubts about the correctness of this judgment because the power of the High Court to condone delay cannot be circumscribed by the statute. Accordingly, the issue should be referred to a Full Bench.

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DATE: (Date of pronouncement)
DATE: December 19, 2008 (Date of publication)
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On the question as to whether for the purpose of availing deduction under Ch VI-A of the Act, the gross total income is required to be computed by deducting allowable depreciation even though the assessee had disclaimed the same for the purpose of regular assessment, there is a conflict of views between two Division Benches of the Court in Grasim Industries Ltd 245 ITR 677 and Scoop Industries 289 ITR 195. Accordingly, the issue has to be referred to the Full Bench.

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DATE: (Date of pronouncement)
DATE: December 19, 2008 (Date of publication)
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On facts, though all the members of the collegium including the then Chief Justice of India opposed the appointment of respondent No.2 (Justice Ashok Kumar) as a permanent Judge his term as additional judge was extended from time to time apparently at the behest of the Government. “the then Chief Justice should have stuck to the view expressed by the collegium and should not have been swayed by the views of the government to recommend extension of the term .. as it amounts to surrender of primacy by jugglery of words”. However, the belated challenge to the extensions “cannot put the clock back”.

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DATE: (Date of pronouncement)
DATE: December 16, 2008 (Date of publication)
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CITATION:

The expression shareholder in s. 2 (22) (e) refers to both a registered shareholder and beneficial shareholder. If a person is a registered shareholder but not the beneficial shareholder than the provisions of s. 2(22) (e) will not apply. Similarly if a person is a beneficial shareholder but not a registered shareholder then also the provisions of Sec. 2(22) (e) will not app]y.

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DATE: (Date of pronouncement)
DATE: December 10, 2008 (Date of publication)
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CITATION:

While the arrears of the State have priority over private debts owed to ordinary or unsecured creditors, this priority does not extend over secured creditors (subject to statutory exception). The fact that the tax arrears are recoverable as arrears of land revenue makes no difference to this principle of common law.