Home › Archive for All Judgements › Page 7
Category: All Judgements

Archive for the ‘All Judgements’ Category

This section is now closed. Click here for new judgements


Posted on by editor
COURT:
CORAM: , ,
SECTION(S): ,
GENRE:
CATCH WORDS: , ,
COUNSEL:
DATE: June 1, 2020 (Date of pronouncement)
DATE: June 11, 2020 (Date of publication)
AY: 2014-15
FILE: Click here to view full post with file download link
CITATION:
S. 147: The reasons in support of the s. 148 notice is the very issue in respect of which the AO had raised a query during the assessment proceedings and the Petitioner had responded justifying its stand. The non-rejection of the explanation in the Assessment Order amounts to the AO accepting the view of the assessee, thus taking a view/forming an opinion. In these circumstances, the reasons in support of the notice proceed on a mere change of opinion and would be completely without jurisdiction

The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS: , , ,
COUNSEL:
DATE: June 5, 2020 (Date of pronouncement)
DATE: June 6, 2020 (Date of publication)
AY: 1993-94 to 1997-98
FILE: Click here to view full post with file download link
CITATION:
(i) The sweeping proposition in some Supreme Court decisions that when two views are possible, the one favourable to assessee has to be preferred & that a tax incentive provision must receive liberal interpretation, is disapproved by the Constitution Bench in Dilip Kumar (2018) 9 SCC 1 (FB). The burden is on the assessee to prove eligibility to an incentive or exemption provision and it is subject to strict interpretation. If there is ambiguity, the benefit of the ambiguity has to go to the Revenue. However, if the assessee proves eligibility, a wide and liberal construction of the provision has to be done (ii) Merely having a contract with a foreign enterprise and mere earning foreign exchange does not ipso facto lead to the application of s. 80-O of the Act (All judgements considered in detail)

The principles laid down by the Constitution Bench in Dilip Kumar (2018) 9 SCC 1, when applied to incentive provisions like those for deduction, would also be that the burden lies on the assessee to prove its applicability to his case; and if there be any ambiguity in the deduction clause, the same is subject to strict interpretation with the result that the benefit of such ambiguity cannot be claimed by the assessee, rather it would be interpreted in favour of the revenue. In view of the Constitution Bench decision in Dilip Kumar & Co. (supra), the generalised observations in Baby Marine Exports 290 ITR 323 (SC) with reference to a few other decisions, that a tax incentive provision must receive liberal interpretation, cannot be considered to be a sound statement of law; rather the applicable principles would be those enunciated in Wood Papers Ltd. (1990) 4 SCC 256, which have been precisely approved by the Constitution Bench

Read more ›

Posted on by editor
COURT:
CORAM: , ,
SECTION(S):
GENRE: ,
CATCH WORDS: , ,
COUNSEL:
DATE: May 26, 2020 (Date of pronouncement)
DATE: May 28, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
There is a clear distinction between ‘retirement of a partner’ and ‘dissolution of a partnership firm’. On retirement of the partner, the reconstituted firm continues and the retiring partner is to be paid his dues in terms of Section 37 of the Partnership Act. In case of dissolution, accounts have to be settled and distributed as per the mode prescribed in Section 48 of the Partnership Act. When the partners agree to dissolve a partnership, it is a case of dissolution and not retirement A partnership firm must have at least two partners. When there are only two partners and one has agreed to retire, then the retirement amounts to dissolution of the firm (Imp judgements referred)

The primary claim and submission of the appellants is that Amar Singh had resigned as a partner and, therefore, in terms of clause (10) of the partnership deed (Exhibit P-3) dated 6 th May 1981, he would be entitled to only the capital standing in his credit in the books of accounts. However, the argument has to be rejected as in the present case there were only two partners and there is overwhelming evidence on record that Amar Singh had not resigned as a partner. On the other hand, there was mutual understanding and agreement that the partnership firm would be dissolved

Read more ›

Posted on by editor
COURT:
CORAM: , ,
SECTION(S):
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: May 11, 2020 (Date of pronouncement)
DATE: May 16, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
Doctrine of "Force Majeure" & "Frustration of Contract": Under Indian contract law, the consequences of a force majeure event are provided for u/s 56 of the Contract Act, which states that on the occurrence of an event which renders the performance impossible, the contract becomes void thereafter. When the parties have not provided for what would take place when an event which renders the performance of the contract impossible, then S. 56 of the Contract Act applies. The effect of the doctrine of frustration is that it discharges all the parties from future obligations (Imp judgements referred)

From the aforesaid discussion, it can be said that the contract was based on a fixed rate. The party, before entering the tender process, entered the contract after mitigating the risk of such an increase. If the purpose of the tender was to limit the risks of price variations, then the interpretation placed by the Arbitral Tribunal cannot be said to be possible one, as it would completely defeat the explicit wordings and purpose of the contract. There is no gainsaying that there will be price fluctuations which a prudent contractor would have taken into margin, while bidding in the tender. Such price fluctuations cannot be brought under Clause 23 unless specific language points to the inclusion.

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL: ,
DATE: May 14, 2020 (Date of pronouncement)
DATE: May 15, 2020 (Date of publication)
AY: 2013-14
FILE: Click here to view full post with file download link
CITATION:
Rule 34(5) of the ITAT Rules provides that “ordinarily” the order on an appeal should be pronounced within no more than 90 days from the date of concluding the hearing. A pedantic view of the rule cannot be taken. The period of 90 days should be computed by excluding at least the period during which the lockdown due to Covid-19 was in force. We must factor ground realities in mind while interpreting the time limit for the pronouncement of the order. Law is not brooding omnipotence in the sky. It is a pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that is how the law is required to interpreted

In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we should compute the period of 90 days by excluding at least the period during which the lockdown was in force. We must factor ground realities in mind while interpreting the time limit for the pronouncement of the order. Law is not brooding omnipotence in the sky. It is a pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that is how the law is required to interpreted. The interpretation so assigned by us is not only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system.

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: May 4, 2020 (Date of pronouncement)
DATE: May 9, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
Contempt of Court by Advocates: There is not an iota of remorse or any semblance of apology on behalf of the contemnors. In view of the scurrilous and scandalous allegations levelled against the judges of this Court and no remorse being shown by any of the contemnors we are of the considered view that they cannot be let off leniently. It is obvious that this is a concerted effort to virtually hold the Judiciary to ransom. All three contemnors are sentenced to undergo simple imprisonment for a period of 3 months each with a fine of Rs. 2000

There is not an iota of remorse or any semblance of apology on behalf of the contemnors. Since they have not argued on sentence, we have to decide the sentence without assistance of the contemnors. In view of the scurrilous and scandalous allegations levelled against the judges of this Court and no remorse being shown by any of the contemnors we are of the considered view that they cannot be let off leniently. We have also held in our judgment that the complaints were sent by the contemnors with a view to intimidate the Judges who were yet to hear Shri Nedumpara on the question of punishment, so that no action against Shri Nedumpara is taken. Therefore, it is obvious that this is a concerted effort to virtually hold the Judiciary to ransom.

Read more ›

Posted on by editor
COURT:
CORAM: , ,
SECTION(S):
GENRE:
CATCH WORDS: ,
COUNSEL: ,
DATE: May 6, 2020 (Date of pronouncement)
DATE: May 9, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
Extension of limitation period: Taking into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings

In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S): , ,
GENRE: ,
CATCH WORDS: ,
COUNSEL: ,
DATE: April 29, 2020 (Date of pronouncement)
DATE: May 8, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
TDS u/s 115BBA, 194E & DTAA: As the payments to the Non-Resident Sports Associations represented their income which accrued or arose in India u/s 115BBA, the assessee was liable to deduct Tax at Source u/s 194E. The obligation to deduct Tax at Source u/s 194E is not affected by the DTAA. In case the exigibility to tax is disputed by the recipient, the benefit of DTAA can be pleaded and the amount in question will be refunded with interest. But, that by itself, cannot absolve the liability to deduct TDS u/s 194E of the Act (Eli Lilly (2009) 15 SCC 1 & G.E. India Technology Centre 327 ITR (SC) referred)

The obligation to deduct Tax at Source under Section 194E of the Act is not affected by the DTAA and in case the exigibility to tax is disputed by the assesse on whose account the deduction is made, the benefit of DTAA can be pleaded and if the case is made out, the amount in question will always be refunded with interest. But, that by itself, cannot absolve the liability under Section 194E of the Act.In the premises, it must be held that the payments made to the Non-Resident Sports Associations in the present case represented their income which accrued or arose or was deemed to have accrued or arisen in India. Consequently, the Appellant was liable to deduct Tax at Source in terms of Section 194E of the Act.

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S):
GENRE: ,
CATCH WORDS:
COUNSEL: ,
DATE: May 6, 2020 (Date of pronouncement)
DATE: May 7, 2020 (Date of publication)
AY: -
FILE: Click here to view full post with file download link
CITATION:
Power of Supreme Court & High Court under Articles 142 and 226 to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stands foreclosed by the law of limitation: The statutory period prescribed for redressal of the grievance cannot be disregarded and a writ petition entertained. Doing so would be in the teeth of the principle that the Court cannot issue a writ which is inconsistent with the legislative intent. That would render the legislative scheme and intention behind the statutory provision otiose

A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle
underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.

Read more ›

Posted on by editor
COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS: ,
COUNSEL: ,
DATE: February 18, 2020 (Date of pronouncement)
DATE: May 7, 2020 (Date of publication)
AY: 2012-13
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 148: A mere bald assertion by the AO that the assessee has not disclosed fully and truly all the material facts is not sufficient. The AO has to give details as to which fact or the material was not disclosed by the assessee, leading to its income escaping assessment. Otherwise, the reopening is not valid (Imp judgements referred)

The decision in Calcutta Discount Co. Ltd in fact, assists the case of the Petitioner rather than the Respondents. In this decision, the Hon’ble Supreme Court has held that it is the duty of the assessee to disclose fully and truly all primary relevant facts and once all primary facts are before the assessing authority, he requires no further assistance by way of disclosure and it is for him to decide what inference of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. However, if there are some reasonable grounds for thinking that there had been underassessment as regards any primary facts which could have a material bearing on question of under-assessment, that would be sufficient to give jurisdiction to the ITO to issue notice for reassessment.

Read more ›