Category: judiciary

The author argues that non-residents dread the ‘Force of Attraction’ rule in Double Taxation Avoidance Agreements because it permits the taxation of income arising outside the Contracting State. The ‘Force of Attraction’ rule can also create an anomalous situation where an assessee may be better off under the domestic law than under the tax-treaty law, says the author

The Finance Minister publicly expressed his anguish at the mounting number of frivolous cases filed by the department which are choking the Courts. The author, a public-spirited citizen ever eager to help the FM in such matters, puts on his thinking cap and formulates a 12-point agenda to cure the malaise. If implemented in real earnest, the mindless filing of departmental appeals will cease, assures the author. Is the FM listening?

The Author fondly refers to the Tribunal as ‘Mother’ and urges that by the time its Platinum Jubilee is celebrated, it must be regarded as the finest legal Institution in the Country. It is possible, he says, if the Bar and the Bench play their part!

The author is full of praise at the clarion call of the new Chief Justice of India that one must put duty to the Country before duty to the self. Inspired, he has formulated a 10-point agenda and implores us to follow it in the right spirit to bring some nobility into the noble profession

The author is indignant at the proposal of the Government to discriminate between the retirement age of heads of Tribunals and the retirement age of other Members. He argues that it is illogical to have different retirement ages for members of the same Institution. He, however, is in favour of a general increase in the retirement age and argues that retirement at an age when the Judges’ intellectual faculties are at their peak results in a sheer waste of abilities, expertise and experience

The author, who is usually very critical of the Government for its indifferent attitude to the Judiciary, is full of praise this time at the grant of Rs. 5,000 crores in the Budget for modernization of the justice delivery system. He urges that much more has to be done and makes the radical suggestion that visionaries like Sam Pitroda and Nandan Nilekani should be nominated to prepare a road map to reform the judicial process

Finance Bill 2010: Judgement of the Supreme Court in Ishikawajima-Harima Heavy Industries 288 ITR 408 superseded by the Explanation to section 9 (1) (vii)

The author is full of appreciation at the stellar roles played by the ITAT and the Bombay High Court in reducing arrears. He argues that the dwindling pendency of matters has rendered the concept of the NTT redundant. He makes out a strong case for increasing the role of the ITAT by making non-appeallable orders appeallable to the ITAT

Higher wisdom has to prevail over better wisdom” is the mantra judges mumble when they are forced to follow a precedent that they don’t quite agree with. However, judges do find ways of getting out of having to follow a judgement of a higher court. The latest salvo on this front is the Third Member judgement in Kanel Oil which shows that a High Court judgement, though superior in status to the Tribunal, may have to yield to the latter. In this case, the Bench was faced with a piquant situation. It had to decide whether an assessee liable to pay Minimum Alternate Tax (“MAT”) under section 115JA of the Act was also liable to pay advance tax under sections 234B and 234C for default in paying advance tax. The issue as such was covered against the assessee by the decision of the Special Bench in Ashima Syntex 117 ITD 1 but the assessee must have been very smug during the hearing because there was a subsequent judgement of the Bombay High Court in Snowcem India 313 ITR 170 which held, following the judgement of the Supreme Court in Kwality Biscuits 284 ITR 434, that assessees paying tax on book profits u/s 115JA were not liable to pay advance tax. The Judicial Member did oblige and decided in favour of the assessee by following the judgement of the Bombay High Court. However, the Accountant Member wrote a detailed dissenting judgement and followed the judgement of the Special Bench. This is how the matter landed up before the Third Member.

The twin losses in quick succession on the depreciation front have put depreciation – aficionados in a sense of gloom. First, in Techno Shares & Stocks, they were told in no uncertain terms that their esoteric arguments on the intangible assets front was far fetched. Second, in Plastiblends, they were told that their gambit to extract maximum deduction u/s 80-IA while postponing the claim for depreciation for later years when the s. 80-IA relief would run out was not going to work.