4 comments on “Mohan Manoj Dhupelia vs. DCIT (ITAT Mumbai)
  1. J.G.NAIK says:

    I have read the order passed by the learned members which is published in the itatonline.org. I was present in the courtroom when the matter was argued before the Bench. The hearing went on till 1.00 pm and the counsel for the Assessee argued for almost 2 hours. Surprisingly however, on reading the order, I have found that none of the arguments of the Assessee’s counsel have been dealt with even remotely by the Tribunal.

    From what I can remember, almost 15 judgements of the Supreme Court such as CWT v. Estate of Late HMM Vikramsinhji of Gondal etc. and various High Courts were cited which have not even been referred to by the Tribunal in the order.

    On the contrary, the judgment of Supreme Court in the case of Chairman Board of Mining & Ors v. Ramjee (1977 AIR 1965 (SC) which has been referred in the order was neither cited by revenue nor referred at the time of hearing.
    I feel without referring a single judgement cited by the counsel and without pointing out how the case laws are not applicable to the facts of the case deciding the matter against the assessee was not fair, especially when the Tribunal is a final fact finding body

    CA. J. G. Naik

    • good you raised pertinent points that what assessee cited cases are not answered by tribunal, perhaps the revenue would have instructed the tribunal not to give credence as the sec 255(3) is used in creating three member bench which is unconstitutional, as the tribunal only need to work of facts finding not like high court to interpret the statutes and their propriety.

      But here what i see is that the hon tribunal is now on its own assumes as an constitutional interpreting body while it has no such power of status per constitution basic structure, so it is obvious the hon tribunal just under some circular illegal on the face of it, accepted the said circular and acted is clear violation of rule of law as any law or statute unless legally passed by the lok sabha that such action is just some executive action which action never accepted the separation of powers between legislature, executive and judiciary that is a must in any vibrant democracy unless there is some malafide arbitrary function of executive is on the face of record, here we see the revenue just needs to collect tax whether legally or otherwise?

      so it means assessees can resort to high court under article 226 or 32 before supreme court to decide the fundamental rights guaranteed under Articles !9(1)(a) r/w Art 21 r/w Art 38, 39 as also read with Art 51A found in Part IVA of the indian constitution.

      in this connection one has to look at Madras Bar Association v NTT decided by 5 member bench which clearly stated that NTT is to decide by interpretation of statutes, besides the very NTT Act was not referred to Lok sabha when the select committee made several observations that ought to have been considered by lok sabha but the then govt just saw the NTT Act is passed that led to the hon bench of SC which declared the very Act ultra vires, means governmental governance has hit the rock bottom as government loves to work arbitrally, with malafide intentions . such situation is in the case under reference!

  2. fact is tribunal has become a not trustworthy body, but one sided quasi judicial tribunal of revenue when so why assessee waste his hard earned moneys and appear before the honorary tribunal, after all it is becoming something like a CIT(A) quasi tribunal when the manual by gandhi clearly said tribunal is not a court in his manual published in 2008, when so what credibility is there ?

    Assessee can directly move Art 226 as it is clear that High courts can admit any writ on the basis of the merit of the issue, as it is not mandatory the assesee has to move tribunal before moving HC, that is writ jurisdiction of constitutional courts.

    that is rule of law, when i do not trust the fairness and just of the tribunal i can explain before the hon SC which would consider sympathetically and admit the writ, straight away.

  3. fact is tribunal has become a not trustworthy body, but one sided quasi judicial tribunal of revenue when so why assessee waste his hard earned moneys and appear before the honorary tribunal, after all it is becoming something like a CIT(A) quasi tribunal when the manual by gandhi clearly said tribunal is not a court in his manual published in 2008, when so what credibility is there ?

    Assessee can directly move Art 226 as it is clear that High courts can admit any writ on the basis of the merit of the issue, as it is not mandatory the assesee has to move tribunal before moving HC, that is writ jurisdiction of constitutional courts.

    that is rule of law, when i do not trust the fairness and just of the tribunal i can explain before the hon SC which would consider sympathetically and admit the writ, straight away.

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