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DATE: April 20, 2018 (Date of pronouncement)
DATE: May 9, 2018 (Date of publication)
AY: 1997-98
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CITATION:
Court records sincere appreciation for the proactive and sensitive manner in which the CIT has intervened to ensure that injustice caused to the party is addressed. His expression of regret for the inconvenience caused to the Petitioner for acts of his department is gracious and a very commendable and fair gesture, which is rarely noticed on the part of the Revenue. If such conduct would became the norm, the department itself would gain as the fairness in dealing with an assessee would automatically result in greater compliance of the laws by the tax payer. This secure in the belief the tax department would be fair and not treat the assessee as its enemy/adversary

Before parting, we would like to place on record our sincere appreciation for the proactive and sensitive manner in which the Commissioner of Income Tax – Mr. Sachchidanand Srivastava has intervened to ensure that injustice caused to the party is addressed. Moreover, very graciously he places on record his regrets for the inconvenience caused to the Petitioner for acts of his department. This, indeed, is a very commendable and fair gesture, which is rarely noticed on the part of the Revenue. All we can say if such conduct would became the norm, the department itself would gain as the fairness in dealing with an assessee would automatically result in greater compliance of the laws by the tax payer. This secure in the belief the tax department would be fair and not treat the assessee as its enemy/adversary

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DATE: March 6, 2018 (Date of pronouncement)
DATE: May 3, 2018 (Date of publication)
AY: -
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CITATION:
S. 92CB Transfer Pricing Safe Harbour Rules: If the assessee has exercised the safe harbour option under Rule 10THD(1) & the AO has not passed any order under rule 10THD(4) declaring the exercising of option to be invalid, the option is treated as valid. Thereafter, the Transfer Pricing regime does not apply & the AO has no authority to make any reference to the TPO to ascertain the arm's length price of the assessee's specified domestic transactions. CBDT's circular dated 10.3.2006 could not have and does not lay down anything to the contrary

In the present case, admittedly, after the petitioner exercised such an option, the Assessing Officer passed no order under subrule (4) of rule 10THD declaring that the exercising of option was invalid. In terms of subrule (7) and subrule (8) of the said rule, therefore, the option exercised by the assessee would be treated as valid. Once this conclusion is reached, it follows as a natural and necessary corollary that the Transfer Pricing regime would not apply. That being the case, the Assessing Officer had no authority to make any reference to the TPO to ascertain the arm’s length price of the petitioner’s specified domestic transactions. Reference itself was therefore, invalid. CBDT’s circular dated 10.3.2006 could not have and does not lay down anything to the contrary. The circular merely prescribes the circumstances under which the Assessing Officer would make reference to the TPO. Nowhere does the circular provide that as soon as such circumstances exist, the Assessing Officer would make a reference to the TPO, irrespective of the fact that the assessee had opted for safe harbour and such option was treated or deemed to be treated as validly exercised. Legally speaking, CBDT could not have given any such directive. Eventually no such directive can be discerned from the circular.

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DATE: April 27, 2018 (Date of pronouncement)
DATE: April 30, 2018 (Date of publication)
AY: 1986-87
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CITATION:
S. 35AB: Question whether the term "acquiring know-how" means acquiring on ownership basis or on lease and whether deduction can be allowed u/s 37(1) for revenue expenditure explained. Judgements in Anil Starch Products 232 TM 129 and Diffusion Engineers 376 ITR 487 (Kar) (based on Swaraj Engines 301 ITR 284 (SC)) dissented from

Therefore, the reliance by the Gujarat High Court in Anil Starch Products Ltd. (supra) and Sayaji Industries Ltd.(supra) and Karnataka High Court in Diffusion Engineers Ltd. (supra) on the basis of the Apex Court decision in Swaraj Industries Ltd. (supra) to hold that all expenditure which is revenue in nature would not fall under section 35AB of the Act and would have necessarily to fall under Section 37 of the Act to our mind is not warranted by the decision of the Apex Court in Swaraj Engines Ltd. (SC)

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DATE: April 18, 2018 (Date of pronouncement)
DATE: April 27, 2018 (Date of publication)
AY: 2001-02
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CITATION:
The CBDT should reconsider the practice of appointing retired revenue officers as panel counsel. While the retired officials have domain expertise and do render assistance, they lack the skill and conduct required to appear as an Advocate. They also lack the objectivity expected from officers of the court. The CBDT could consider holding of a training programme, where leading Advocates could address the domain expert on the ethics, obligation and standard expected of Advocates before they start representing the State. The CBDT should lay down a standard procedure in respect of manner in which the Departmental Officer/ Assessing Officer assist the Counsel for the Revenue while promoting/ protecting Revenue’s cause so that the Revenue’s Counsel are not left to fend for themselves

We have for a long time, taken into account that many of these are fresh entrants to the bar and in due course, would learn the standard expected of an Advocate. However, to our disappointment, many of them are refusing to learn. Therefore, the CBDT could consider holding of a training programme, where leading Advocates could address the domainexpert on the ethics, obligation and standard expected of Advocates before they start representing the State. This is only a suggestion and it is entirely for the CBDT to take appropriate steps to ensure that the Revenue is properly represented to serve the greater cause of justice and fair play. In any case, we would expect the CBDT to lay down a standard procedure in respect of manner in which the Departmental Officer/ Assessing Officer assist the Counsel for the Revenue while promoting/ protecting Revenue’s cause. We find in most cases, atleast during the final hearing, Revenue’s Counsel are left to fend for themselves and that even papers at times are borrowed from the other side or taken from the Court Records. If the mind set of the Revenue Officer changes and they attend to the case diligently till it is disposed of, only then would it be ensured that the State is properly represented

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DATE: April 17, 2018 (Date of pronouncement)
DATE: April 21, 2018 (Date of publication)
AY: 2010-11
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CITATION:
S. 68 Bogus loans: The assessee is not required to explain the "source of source" prior to insertion of the proviso to s. 68. If the assessee has discharged the primary onus placed upon it u/s 68 by filing confirmation letters, the Affidavits, the full address and pan numbers of the creditors, the Revenue has to proceed against the persons whose source of funds are alleged to be not genuine

The proviso to Section 68 of the Act has been introduced by the Finance Act, 2012 w.e.f. 1st April, 2013 and therefore it would be effective only from Assessment Year 2013-14 onwards and not for the earlier assessment years. Where the Revenue urges that the money has been received from bogus shareholders then it is for the Revenue to proceed against them in accordance with law. This would not entitle the Revenue to invoke Section 68 of the Act while assessing the respondent for not explaining the source of its source.

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DATE: April 11, 2018 (Date of pronouncement)
DATE: April 16, 2018 (Date of publication)
AY: 2008-09, 2009-10
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CITATION:
Strictures passed against Dept's Advocate for "most unreasonable attitude" of seeking to reargue settled concluded issues. This results in unnecessary wastage of the scarce judicial time available in the context of the large number of the appeals awaiting consideration. Dept's Advocate are expected to act with responsibility as an Officer of the Court and not merely argue for the sake of arguing when an issue is clearly covered by the decision of Co- ordinate Bench of the Court and take up scarce judicial time. Advocates must bear in mind that this is a Court of law and not an University/College debating Society, where debates are held for academic stimulation. We deal with real life disputes and decide them in accordance with the Rule of Law, of which an important limb is uniformity of application of law. This on the basis of judicial discipline and law of precedents

We are pained to record this most unreasonable attitude on the part of the Advocate for the Revenue of seeking to reargue settled concluded issues, without having obtained any stay from the Apex Court. This results in unnecessary wastage of the scarce judicial time available in the context of the large number of the appeals awaiting consideration. We would expect Mr. Chhotaray, as an Advocate to act with responsibility as an Officer of the Court and not merely argue for the sake of arguing when an issue is clearly covered by the decision of Co- ordinate Bench of the Court and take up scarce judicial time. The Advocate must bear in mind that this is a Court of law and not an University/College debating Society, where debates are held for academic stimulation. We deal with real life disputes and decide them in accordance with the Rule of Law, of which an important limb is uniformity of application of law. This on the basis of judicial discipline and law of precedents

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DATE: April 2, 2018 (Date of pronouncement)
DATE: April 16, 2018 (Date of publication)
AY: -
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CITATION:
S. 40(3) Wealth-tax: Law on whether Parliament has legislative competence to tax land and buildings which are in List-II of the 7th Schedule and whether the classification of "companies in which the public are not substantially interested" is arbitrary and violative of Article 14 of the Constitution explained (Imp constitutional law principles laid down)

Section 40(3) of the Act bringing to tax land and building which is not used for business purposes by companies in which public are not substantially interested to tax under the Wealth Tax Act and leaving out those land and buildings which are used for business purposes by companies in which public are not substantially interested from the charge of wealth tax under the Act is a reasonable classification

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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

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DATE: March 12, 2018 (Date of pronouncement)
DATE: March 31, 2018 (Date of publication)
AY: -
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CITATION:
S. 279 Prosecution for late deposit of TDS offense: Principles applicable to launching prosecution set out. If the assessee is able to make out that cognizance was not justified and as per law they can challenge and question the summoning order by way of petition u/s 397 read with Section 401 of the Code of Criminal Procedure, 1973 or if permissible, by way of a petition under Section 482 of the Code

It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution

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DATE: March 9, 2018 (Date of pronouncement)
DATE: March 21, 2018 (Date of publication)
AY: 2004-05
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CITATION:
S. 254(2): Tribunal orders (in sister concern's case) are binding on the Tribunal unless set-aside or stayed. A rectification application on the ground that the orders in the sister concern's case are not correct is not permissible as it amounts to a review

The Revenue has filed appeals in the sister concern case for the Assessment Years 199697 to 200001 under Section 260A of the Act to this Court. The question raised therein is on the issue of appropriate classification of the rent/ compensation under the head ‘income from the other sources’ or under the head ‘income from the house property’. The aforesaid appeals have been admitted and are awaiting consideration for final disposal. Till such time, as the orders of the Tribunal of its Coordinate Bench in respect of the Assessment Years 1996-97 to 2000-01 are set aside or are stayed pending the final disposal, its ratio would, prima facie, continue to be binding. Therefore, even if the Revenue seek to contend to the contrary it would be a debatable issue. This cannot be a subject matter of rectification

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