S.153D:ASSESSMENT – SEARCH -APPROVAL – APPROVAL HAS TO BE GIVEN EACH ASSESSMENT YEAR BY PROPER APPLICATION OF MIND – MECHANICAL APPROVAL IS HELD TO BE BAD IN LAW . [ S.132
SANJAY DUGGAL V. ACIT (DELHI)(TRIB), WWW.ITATONLINE.ORG
Digest of case laws
Online digest of latest case laws
This Digest of case laws is prepared by KSA Legal and AIFTP from judgements reported in BCAJ, CTR, DTR, ITD, ITR, ITR (Trib), Chamber's Journal, SOT, Taxman, TTJ, BCAJ, ACAJ, www.itatonline.org and other journals
Click here to download the pdf versions of the Digest of case laws S. 17(2:PERQUISITE – ESOP BENEFITS GRANTED TO AN ASSESSEE WHEN HE WAS RESIDENT AND IN CONSIDERATION FOR SERVICES RENDERED IN INDIA IS TAXABLE EVEN THOUGH THE ASSESSEE IS A NON-RESIDENT IN THE YEAR OF EXERCISE- DTAA -INDIA – UAE [ S.15 , ART .15 ]
V. S. Unnikrishnan v. ITO (IIT ) (2021) 86 ITR 11 (SN)/ 198 DTR 73/ 209 TTJ 681 (Mum)(Trib). www.itatonline.orgS. 153A : Assessment – Search-Assessment on the basis of alleged incriminating material (being the statement recorded under 132(4) of the Act) is not valid. The Assessee also had no opportunity to cross-examine the said witness [ S. 132 , 153C ]
PCIT(C)-3 V. ANAND KUMAR JAIN (HUF) (DELHI)(HC), WWW.ITATONLINE.ORGS. 271AAB : Penalty – Search -Undisclosed income –Levy of penalty not mandatory – Opportunity of hearing must be given – No assessment required for initiation of penalty- Since, the assessee has neither made any surrender of any undisclosed income during the search action nor the penalty has been initiated on the basis of undisclosed income found during such search action, the appeal of the assessee stands allowed- Levy of penalty deleted [ S. 132 ]
Shiv Bhagwan Gupta v. ACIT (Pat ) (Trib) www.itatonline.orgConstitution of India
Art .32 : Remedies for enforcement of rights conferred by this part – COVID -19 -Waiver of interest – Economic and fiscal regulatory measures are a field where Judges should encroach upon very warily as Judges are not experts in these matters. In assessing the propriety of the decision of the Government the court cannot interfere even if a second view is possible from that of the government. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review.
S. 90: Foreign tax Credit – Not allowed as refund – Deduction of taxes paid – Allowed in computation -DTAA- [S. 28(1), 37(1), 91; Art, 24]
Bank of India v. ACIT ( 2021 ) 201 DTR 1 / 210 TTJ 649 ( Mum) (Trib) www.itatonline .orgS. 195 :Deduction at source – Non-resident – Other sums – Amount received for supply of software – Not liable to deduct tax at source
DTAA -India [ Art , 12 , 9 (1)(vi), Art, 12 ]
The Negotiable Instruments Act , 1881
S.138 :Dishonour of cheque for insufficiency , etc , of funds in the account – Courts are inundated with complaints filed under Section 138 of the Negotiable Instruments Act, 1881. The cases are not being decided within a reasonable period and remain pending for a number of years. This gargantuan pendency of complaints filed under s. 138 of the Act has had an adverse effect in disposal of other criminal cases. Concerned with the large number of cases pending at various levels, a Larger Bench of the Supreme Court has examined the reasons for the delay in disposal of the cases. The Bench has issued important directions which will expedite the hearing and disposal of the cases[ S. 140, 141, 142]
The Limitation Act , 1963
S.18 : Effect of acknowledgement in writing. – The principle of S. 9 of the Limitation Act, namely, that when time begins to run, it cannot be halted, except by a process known to law, has to be strictly adhered to. S. 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable to the Insolvency and Bankruptcy Code since S. 238A uses the expression “as far as may be” governing the applicability of the Limitation Act. An entry made in the books of accounts, including the balance sheet, can amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act. The notes annexed to or forming part of the balance sheet, or the auditor’s report, must be read along with the balance sheet. [S.9, 14, Companies Act, 2013 , S. 2(40), 92, 128, 129, 134, 137, Insolvency and Bankruptcy Code , S,238A ]
Asset reconstruction company (India) limited v. Bishal Jaiswal & Anr . AIR 2021SC5249 / 6SCC366 / 166 SCL82 (SC) www.itatonline.org (SC)S. 271AAA : Penalty – Search initiated on or after 1st June, 2007 – Undisclosed income and specifies manner in which such income derived- Failure of the raiding party to elicit a response from assessee regarding manner of deriving income- Deletion of penalty by the Tribunal is held to be valid . [ S.132 (4) , 271AAA(2) ]
CIT v. Patdi Commercial and Investment Ltd. (2020) 420 ITR 308 / 187 DTR 35 (Guj) (HC)