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Topics - CA.BHUPENDRASHAH

#1
Discussion / unverifiable purchases *****SLP
June 29, 2018, 02:07:30 PM
Where purchases made by assessee-trader were duly supported by bills and payments were made by account payee cheque, seller also confirmed transaction and there was no evidence to show that amount was recycled back to assessee, Assessing Officer was not justified in treating said purchases as bogus under section 69C: SLP dismissed
[2018]
SUPREME COURT OF INDIA
Principal Commissioner of Income Tax, Surat-1

v.

Tejua Rohitkumar Kapadia
arising from THE  TAX APPEAL NO. 691 of 2017  HIGH COURT OF GUJARAT AT AHMEDABAD

#2
Shailesh D. Mehta, Mumbai vs Income Tax Officer 17(3)(3), ... on 4 April, 2018
We have heard the rival submissions.We find that while deciding the appeals the FAA has not passed speaking and reasoned order. In his 21 pages'order we do not find any logic as to why he was confirming the order of the AO.He has reproduced orders of various judicial authorities without mentioning as to how they were applicable to the facts of the present case. We do not want to mention as to how an FAA should write his order.But,we would like to mention that as an appellate authority,he should give the reasons for approving or rejecting the claim made before him.We would like to refer to the case of Buildwell Assam P.Ltd. (133 ITR 336),wherein the Hon'ble Gauhati High Court has held as under:

"Section 250(6) of the I.T. Act, 1961, prescribes the manner of disposal of an appeal. An order must be in writing containing the points for determination and decision. The object is obvious. It enables a party to know the precise points decided in his favour or against him. Absence of formulation of points for decision or want of clarity in decision puts a party in a quandary. A decision against a party enables him to go up in appeal. A decision by its very nature must be firm and should not be vague and unclear. If there is a direction by the appellate authority to the ITO, the latter is bound to carry out the direction. Refusal to carry out a direction is a denial of justice and destructive of one of the basic principles in the administration of justice based on the hierarchy of the authorities. Therefore, when a subordinate authority is directed to carry out certain directions by a superior authority, the 4913/M/17-Shaillesh D.Mehta tenor and colour of the order of the superior authority must be firm, clear, certain, definite and without any ambiguity.
Considering the fact that order of the FAA is not a reasoned order,we are of the opinion that, in the interest of justice,the matter should be restored to his file for passing a reasoned and speaking order.He is directed to afford a reasonable opportunity to assessee and to consider the material submitted before us by the assessee.Effective Ground of appeal is allowed in favour,of the assessee,in part.

As a result,appeal filed by the assessee stands partly allowed. फलतःिनधा रती ारा दािखल क गई अपील अंशतः मंजूर क जाती है.[/font][/size]
#3
S. 253(5) r.w.s. 252(1): The Registrar of the Tribunal has no jurisdiction to consider and decide on applications for condonation of delay. Only the Court/ Tribunal have the power. The order passed by the Registrar is ultra vires his power and non est in law. He should desist from passing such orders In Re Hiten Ramanlal Mahimtura (ITAT Mumbai)
#4
Discussion / LTCG held genuine !!
October 29, 2015, 12:12:24 PM
The decisions of the Hon’ble Calcutta High Court in the case of CIT-Vs- Carbo Industrial Holdings Ltd (244 ITR 422) and CIT –Vs- Emerald Commercial Ltd (250 ITR 549) are relevant to the issue where the Hon ’ble Court has held that where the payments are made by Account Payee Cheques and the existence of the brokers is not disputed the assessee cannot be punished for the default of the brokers and share transactions cannot be held to be bogus. The Hon’ble ITAT, Kolkata in the case of Rajkumar Agarwal (ITA 1330/Kol/2007 dated 10/08/07) has held that when purchase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG. :)INCOME TAX APPELLATE TRIBUNAL, “C” BENCH, KOLKATA
Before : Shri M. Balaganesh, Accountant Member, and
Shri S.S. Viswanethra Ravi, Judicial Member
I.T.A Nos. 714 to 718/Kol/2011 A.Ys 2001-02 to 2005-06
D.C.I.T, C.C-I, Kolkata Vs. Sunita Khemka
For the Appellant/Department: Shri Sanjit Kr. Das, JCIT,ld.DR
For the Respondent/ Assessee: Shri Manish Tiwari, FCA, ld.AR
Date of Hearing: 14-10-2015
Date of Pronouncement: 28-10-2015
ORDER
SHRI M.BALAGANESH, AM
These appeals of the revenue arise out of the order of the Learned CITA in Appeal No. 530/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 526/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 527/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011,Appeal No. 53 1/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011 and Appeal No. 532/CC-I/CIT(A)/C-III/06-07 dated 21.2.2011 for the Asst Years 2001-02 to 2005-06 respectively against the orders of assessment framed u/s 153A read with section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).
2.The only issue to be decided in these appeals are that whether the assessee is eligible to claim long term capital gains on sale of shares during Asst Years 2001-02 to 2004-05 at a concessional rate of 10% and exemption u/s 10(38) for Asst Year 2005-06 in respect of sale transactions routed through recognized stock exchange.
3.The brief facts of this issue is that the assessee sold the shares of M/s Emkay Consultant Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 18,37,287/- for Asst Year 2001-02 ; sold shares of M/s Commitment Finance Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 19,24,910/- for Asst Year 2002-03 ; sold shares of M/s Emkay Consultant Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 15,67,901/- for Asst Year 2003-04 ; sold shares of M/s Commitment Finance Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 16,58,020/- for Asst Year 2004-05 and sold shares of M/s Limtex Investment Ltd (Listed in Kolkata Stock Exchange) and declared capital gains of Rs. 13,16,420/- for Asst Year 2005-06. The assessee had submitted the details of purchase and sale of the shares in aforesaid companies before the Learned AO and stated that the payment has been made to the stock brokers through account payee cheque from the disclosed bank accounts. Admittedly, these shares were held as an Investment including the other shares by the assessee. During the course of assessment proceedings, the details of contract notes for purchase and sale of shares were duly filed by the assessee. The entire sale consideration for sale of these shares were received by the assessee from the stock brokers through account payee cheques. The assessee had also duly paid the Securities Transaction Tax (STT) during Asst Year 2005-06 at the time of sale of shares. The Learned AO doubted the computation of capital gains on sale of the aforesaid shares by stating that the shares of said companies could not have been sold at the prevailing market rates as per the Calcutta Stock Exchange and treated the long term capital gains as bogus and held that it is only assessee’ s own unaccounted money that had surfaced in the form of long term capital gains with the connivance of the brokers and accordingly brought to tax under the normal provisions of the Act instead of concessional rate of tax applicable to long term capital gains. On first appeal, the assessee pleaded that there was a search and seizure operation conducted u/s 132 of the Act on Aparna Group of cases which includes assessee herein, wherein, no incriminating materials with regard to the subject mentioned issue before us was found by the search party. The Learned CITA duly appreciated the contentions of the assessee and rejected the contentions of the Learned AO in this regard by placing reliance on the decision of this tribunal wherein addition made towards similar grounds of share transactions in the hands of the assessee’s husband Shri.Anil Khemka were deleted in ITA Nos. 901 to 905 / Kol / 2009 dated 28.1.2010 for the Asst Years 2001-02 to 2005-06. Aggrieved, the revenue is in appeal before us on the following grounds:-
Grounds of Appeal for the A. Y 2001-02
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.18,3 7,287!- earned out of selling the shares of M!s. Emkay consultants Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2002-03
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.19,24,910!- earned out of selling the shares of M!s. Commitment Finance Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2003-04
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.15,67,901/- earned out of selling the shares of M!s. Emkay consultants Ltd as such as shown by the assessee and tax it as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2.The department craves leave to add, modify or alter any of the ground(s) of appeal and!or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2004-05
1. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.16,58,020!- earned out of selling the shares of M!s. Commitment Finance Ltd as such as shown by the assessee and tax in as per applicable concessional rate without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee ’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case.
Grounds of Appeal for the A. Y 2005-06
1.In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to treat the long term capital gain of Rs.13,46,420/- earned out of selling the shares of M/s.Limtex Investment Ltd as such as shown by the assessee and allow exemption u/s.10(38) of the I.T Act without proper consideration of the entire facts and without proper appreciation of the evidences and arguments put forth in the assessment order that the said income was nothing but assessee’s own unaccounted money introduced in the form of long term capital gain with connivance of the brokers.
2. The department craves leave to add, modify or alter any of the ground(s) of appeal and/or adduce additional evidence at the time of hearing of the case.
4. Shri Sanjit Kr.Das, JCIT, Sr. DR argued on behalf of the revenue and Shri.Manish Tiwari, FCA, the Learned AR argued on behalf of the assessee.
5. As the issues involved in all these years are identical in nature, they are taken up together and disposed off by this common order for the sake of convenience and brevity. 6. We have heard the Learned AR and find that the Learned CIT (A) had relied on the decision of this tribunal rendered in the case of husband of the assessee. The operative portion of the Learned CIT(A) order is reproduced herein below:-
Para 6 to 6.4 of the ld. CIT(A) ’s order
“6. I have carefully considered the submissions of the appellant and the assessment orders. I have also carefully perused the assessment orders in respect of Sri Anil Kr. Khemka and the order of the ITAT in the case of Sri Anil kr. Khemka. I find that there is an uncanny resemblance between the assessment orders passed in the case of the appellant and in the case of Sri Anil Kr. Khemka-
(1) All those orders are passed by the same AO on the same date;
(2) The assessment orders are identically drafted. Identical reasons have been given by the AO and even the wordings are identical;
(3) The name of the shares on which long term capital gain has been claimed are identical in each of the assessment years;
(4) The names of the brokers through which the transactions have been made are also identical.
6.1 Hon’ble ITAT, Kolkata in its order dated 21.01.2010 (supra) in the case of Shri Anil Khemka has made the following observation:
“Ïn all these assessment years, the assessee has valued all the shares at cost and offering the income of trade of these shares either as short-term capital gains or long term capital gains as the case may be. It is further observed that the shares at which the assessee has purchased/sold are authenticated by the quotations of the Stock Exchange and the transactions are routed through the bank accounts and properly recorded in the respective companies. Keeping in view of the facts and circumstances of the case, we find no justification in treating the said transactions as bogus by the AO nor treating the same as business in the nature of adventure in the nature of trade by the ld. CIT(A) is not justifiable. Therefore, we set aside the orders of the revenue authorities on this issue and direct the AO to treat the long term capital gains as claimed by the assessee. Hence, the ground nos.1 and 2 raised by the assessee are allowed.”
6.2 The appellant has submitted all the original contract notes of sale and purchase, copies of the bills, bank statements in respect of the purchase and sale of shares. All payments were made and received through account payee cheques drawn by the concerned Stock Brokers of Calcutta Stock Exchange and duly recorded in the bank accounts and regular Books-of-A/cs. All the shares sold were transferred through Demat Account or handed over physically to concerned brokers. The price at which the shares have been sold is also published in the daily Quotation issued by the Calcutta Stock Exchange. The shares sold after 1st October’04 pertains to the assessment year 2005-06. Security Transaction tax has been deducted from the sale proceeds.
6.3 The decisions of the Hon’ble Calcutta High Court in the case of CIT-Vs- Carbo Industrial Holdings Ltd (244 ITR 422) and CIT –Vs- Emerald Commercial Ltd (250 ITR 549) are also relevant to the issue where the Hon ’ble Court has held that where the payments are made by Account Payee Cheques and the existence of the brokers is not disputed the assessee cannot be punished for the default of the brokers and share transactions cannot be held to be bogus. The Hon’ble ITAT, Kolkata in the case of Rajkumar Agarwal (ITA 1330/Kol/2007 dated 1 0/08/07) has held that when purchase and sale of shares were supported by proper Contract Notes, deliveries of shares were received through demat accounts maintained with various agencies, the shares were purchased and sold through recognised broker and the sale considerations were received by Account Payee Cheques, the transactions cannot be treated as bogus and the income so disclosed was assessable as LTCG.
6.4 In the assessment orders under consideration the AO has not considered any of these facts. He has treated the transactions as bogus only on the basis of the suspicion that the difference in purchase and sale price of these shares are unusually high. It is a settled law that assessment cannot be made on the basis of suspicion or surmise. The AO has not brought any material on record to support his finding that there has been collusion/connivance between the broker and the appellant for the introduction of its unaccounted money. In view of the decisions of Hon’ble Kolkata High Court and Hon’ble ITAT, Kolkata discussed supra, and also respectfully following the decision of Hon’ble ITAT, Kolkata dated 28.01 .2010 in ITA No.901 -905, Kol 2009 in the case of Sri Anil Kr. Khemka (husband of the appellant) I hold that the AO is not justified in treating the long term capital gain as bogus. I direct the AO to treat the long term capital gain as claimed by the appellant and tax them at the rates applicable for assessment years 2001 -02 to 2003-04 and for assessment year 2005-06 exemption u/s. 10(38) should be allowed.”
6.1 In view of the aforesaid clear findings of the Learned CITA and respectfully following the co-ordinate bench decision of this tribunal in the case of assessee’ s husband on the similar facts and circumstances, we are not inclined to interfere with the order of the Learned CITA and accordingly, the grounds raised by the revenue are dismissed.
7.In the result, the appeals of the revenue are dismissed.
THIS ORDER IS PRONOUNCED IN OPEN COURT ON 28 /10/2015

#5
Discussion / suscipious purchases
April 16, 2015, 01:14:04 PM
#6
IT : Continuance of proceeding by ICAI after settlement of matter between complainant and respondent-chartered accountant before CLB were perverse

[/glow]
[2013] 36 taxmann.com 402 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Institute of Chartered Accountants of India
v.
K.K. Sindwani
#7
Discussion / stay of recovery====personal hearing
August 29, 2013, 04:05:39 PM
IT : While examining an application for stay of demand, Assessing Officer must
pass a speaking order and extend opportunity of personal hearing, if sought by
assessee
[2013] 36 taxmann.com 73 (Karnataka)
HIGH COURT OF KARNATAKA
Smt. Joshna Rajendra
#8
Income Tax Appellate Tribunal - Agra
Bhagwan Agrawal, Agra vs Department Of Income Tax on 12 July, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL,

AGRA BENCH, AGRA

BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND

SHRI A.L. GEHLOT, ACCOUNTANT MEMBER

M.A. Mo. 04/Agra/2012

(Arising out of M.A. No. 02/Agra/2011 & ITA No. 468/Agra/2004) Asstt. Year :
2001-02

Income-tax Officer, vs. Shri Bhagwan Agarwal, 2(4), Agra. D-31, Pratap Nagar,
Agra. (PAN: ADMPA 9968 J).

(Applicant) (Respondent) Applicant/Deptt. by : Shri Waseem Arshad, Sr. D.R.
Assessee by : Shri Nitesh Agarwal, Advocate Date of hearing : 03.07.2013 Date of
pronouncement of order : 12.07.2013 ORDER
*********************************contd
*************************************
13. We may also note here that the conduct of the assessee and his counsel Shri
K.G. Agarwal, C.A. in concealing the relevant and material fact from the
Tribunal would amount to professional misconduct on the part of the Chartered
Accountant. The Chartered Accountant has not only the duty to defend the case of
litigant to the best of his ability, but equally has duty to maintain dignity
and decorum of the courts. He has to assist the Bench as per law in arriving at
the just decision in the matter. Shri K.G. Agarwal, C.A. consciously and
deliberately in the garb of legal advice has concealed and suppressed the
relevant and material 25 MA No.04/Agra/2012

facts from the Tribunal while filing miscellaneous application and arguing the
same before the Tribunal. Therefore, his conduct is not above the board and
requires action by the President, Institute of Chartered Accountant of India.
We, therefore, recommend a disciplinary action against Shri K.G. Agarwal,
Chartered Accountant. Copy of this order be forwarded to the President,
Institute of Chartered Accountant of India, ICAI Bhawan, Indraprashtha Marg, New
Delhi- 110 002 for necessary action in this regard. Copy of this order be also
forwarded to the Chairman CBDT, New Delhi to take necessary action in the
matter. We also direct the ld. CIT-I, Agra to place copy of this order before
the Criminal Court where the criminal prosecution of the assessee is pending on
the matter in issue for appraisal of the concerned court and ensure
implementation of this order.

**contd
#9
IT : CA who appears as AR for client before the ITAT have no locus standi to
file any application before ITAT in his individual capacity without the client's
consent after disposal of client's appeal. CA's conduct of filing such
application after the date of Tribunal's order disposing it off in his client's
favour for expunging remarks from order sheet without filing any affidavit
before ITAT was contemptuous nor stating how any observation of ITAT was
injurious to him, abuse of process of law and scandalized the system of delivery
of justice

Held

• Instant application is filed by the CA in his individual capacity and not on
behalf of the assessee after disposal of assessee's appeal.

• Once the appeal is disposed, the power conferred upon the professionals or the
Authorized Representative by virtue of the Power of Attorney by the assessee,
comes to an end.

• The professionals or the Authorized Representatives do not have any locus
standi to file any application before the Tribunal in his individual capacity
because the Tribunal is not created to redress the grievances of the
professionals.

• Its function is to adjudicate the disputes between the assessee and the
Department.

• The appeal was allowed in favour of the assessee. The assessee had no
grievance against the order passed by the Tribunal

• Instant application filed by the CA with an ulterior motive for the reasons
best known to him after 48 days from the hearing, disputing the facts recorded
in the order sheet dated 08/02/2013.

• Moreover, there is no provision under the Act which entail the professionals
to move any application in their individual capacity without obtaining the
consent of the assessees before the Tribunal after disposal of the appeal.

• After disposal of the appeal, an application can only be filed on behalf of
the assessee under section 254(2) of the Act for seeking rectification in the
order passed under 254(1) of the Income Tax Act.

• But there is no provision under the Act in which an application can be filed
by any Advocate/Chartered Accountant/ Authorised Representative in his
individual capacity for seeking rectification in the proceedings of the hearing,
without the consent of the assessee.

• In fact it is not only misuse of process of the law but it is sear abuse of
process of law.

• No professional has any right to invoke the judicial machinery for his own
interest without any reasons. If he does so it would amount to professional
misconduct on the part of the professional.

• Moreover, to dispute the proceedings of the court, without any cogent
material, is also an attempt to scandalize the court and also to create
hindrance in the proper judicial functioning of the court which cannot be
permitted under any circumstances. If it is allowed to be done, the judicial
system will collapse.

• There is hierarchy in the judicial system.

• If someone is aggrieved with the judicial order passed by any judicial forum,
he may approach the higher forum against that order and get the redressal of his
grievance but he has no right to make an attempt to scandalize the court by
moving such a frivolous application.

• Appeal was disposed of vide order dated 06/03/2013 and order was pronounced in
the open court allowing the appeal of the assessee.

• The factum of dictation of order in the open court is also admitted by CA

• CA has not furnished any explanation as to why he remained silent with regard
to the facts recorded in the order sheet dated 08/02/2013 till the disposal of
the appeal or upto 28/03/2013 when the present application was filed.

• CA has not filed the affidavit in support of his contentions despite the
repeated directions of the Tribunal.

• Whenever the proceedings of the court are disputed, it should be supported by
an affidavit as there is presumption under section 114(e) of the Indian Evidence
Act that judicial act have been regularly performed.

• Since the facts recorded in the order sheet have not been controverted by
filing an affidavit, the judicial proceedings recorded on 08/02/2013 are correct
in view of the provisions of section 114(e) of the Indian Evidence Act, 1872 and
the contentions raised in the application are highly misconceived, wrong and
contemptuous.

• Therefore, instant application is highly misconceived, contemptuous and is
moved with the intention to browbeat and scandalize the court.

• Since the action of CA is gross abuse of process of law, application dismissed
with the cost of Rs 5,000/- to be recovered as arrear of income tax from CA as
this application was filed in his individual capacity and not on behalf of the
assessee.

• This tough stand is being taken only to maintain the dignity and decorum of
the institution and justice delivery system so that it may not be misused by any
professional to settle their personal score. If they have any grievance against
any judicial forum they may approach the higher forum instead of scandalizing
the concerned court/judicial body.

• Reference made to the President of Institute of Chartered Accountants with a
request to take necessary action as per law against CA for his professional
misconduct and also to take corrective measures and necessary steps to educate
its members to behave with the judicial authorities befitting to their status
and should not be engaged in scandalizing the judicial authority/courts.

• Accordingly, the Registry is directed to send the copy of this order to the
President - ICAI, Institute of Chartered Accountants of India, ICAI Bhawan,
Indraprastha Marg, New Delhi-110 002 for necessary action in this regard.


[2013] 34 taxmann.com 283 (Lucknow - Trib.)

IN THE ITAT LUCKNOW BENCH 'SMC'

Omkar Nagreeya Sahkari Bank Ltd.

v.

Deputy Commissioner of Income-tax- I, Kanpur
#10
Discussion / Adjournments
July 04, 2013, 03:52:15 PM

IT : CAs & lawyers can't seek adjournments on the ground that objectivity of ITAT member is not beyond doubt even if petition in that behalf is pending before the jurisdictional High Court. [/color]
CA/Advocate seeking adjournment for the
reason that he doesn't want to appear before a particular Bench/member of ITAT
commits 'contempt of court' by 'forum shopping' or 'de facto boycott' of a
judicial officer. It is not open to CA/Advocate/bar association/group of ARs to
seek adjournments on the ground that they have issues against a particular ITAT
member as this amounts to de facto boycott of a judicial officer. No adjournment
of hearing by ITAT for the reason that CA/Advocate doesn't want to appear before
a particular Bench/member

Held

(Per Judicial Member)

• I.T.A.T. is creation of Income Tax Act through section 252 and under section
252 the Central Government shall constitute an Appellate Tribunal to adjudicate
the issues raised between the assessee and the Income-tax Department.

• The professionals either Advocates or Chartered Accountants can be engaged to
prosecute the appeals on behalf of the assessees in a manner in which the
assessee wants.

• Infact after filing the Power of Attorney, the professionals (Advocate or
Chartered Accountant) will step into the shoes of the assessee and they will
represent the case in a manner beneficial to the assessee.

• If a particular Advocate or a Chartered Accountant is not comfortable or has
reservation with a particular judicial forum, it is his sweet will for making a
representation before the said judicial forum; but for that reason the judicial
forum cannot be forced to adjourn all the matters for an unlimited period where
the stakes of the revenue are substantially involved.

• The I.T.A.T. is created to adjudicate the disputes amongst the Income-tax
Department and the assessee.

• If a particular advocate has some reservation with a particular Bench, it is
for him to take a decision in this regard.

• Similar is the position with regard to the assessee as he has to take a final
decision with regard to the appointment of his advocate or representative to
represent his case before the judicial authority.

• The judicial authority, be it may be the Tribunal are concerned about the
material placed before them while adjudicating the issues involved irrespective
of the personalities of the Advocates appearing before him representing the case
of the parties.

• In the light of these facts, when the Judicial Member has already withdrawn
his order of recusal from hearing of the cases being represented by Shri SKG,
Advocate or Shri PKK, C. A., there is no valid reason for the adjournment on the
ground that the Judicial Member has recused himself from hearing the cases of
Shri SKG, Advocate and more so in the light of the facts that about 25% of the
appeals pending before the Bench are being represented by Shri SKG, Advocate or
Shri PKK, C. A.

• If Shri SKG, Advocate and Shri PKK, C. A. have any reservation with the Bench
comprising of Judicial Member, they may take independent decision with regard to
their representation before the Bench.

• But for the reason that they do not want to represent the cases, the hearing
cannot be adjourned and assessee would be at liberty to make some other
arrangement to prosecute his case in effective manner.

• In the instant case the Judicial Member has already withdrawn his recusal from
hearing the case of Shri SKG, Advocate vide order dated 08/02/2013 passed in the
case of Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.

• Therefore, the appeals being represented by Shri SKG, Advocate and Shri PKK,
C. A. can be heard by the Bench comprising of the Judicial Member and the
assessee would be at liberty to make some alternate arrange if Shri SKG,
Advocate or Shri PKK, C. A. do not wish to appear before the said Bench.

• It is for the assessee to take a decision in this regard as through whom he
wants to get his matter represented.

• There is no dearth of tax experts/Tax Advocates in our country more
particularly in Lucknow and the assessee is at liberty to hire the services of
any best professionals but for the reason that a particular Advocate or the
Chartered Accountant does not want to appear before the Tribunal, the hearing of
the appeal cannot be adjourned.

• Vide order dated 27-5-2013, it was made very clear to the assessee that since
the matter has been received from Hon'ble High Court on remand for disposal
within a period of six months, no further adjournment would be granted.

• Despite these facts, the assessee moved the application for adjournment.

• It is also pertinent to mention here that on receipt of the last order dated
27-5-2013 of the Tribunal, the assessee moved to the High Court for
clarification through application dated 30th May, 2013.

• The Hon'ble High Court passed an order dated 5th March, 2013 and the assessee
remained silent till 30th May, 2013.

• Once the Tribunal has taken a tough stand and adjourned the hearing with the
last opportunity with the certain directions, the assessee moved an application
to the High Court for clarification on 30th May, 2013.

• The clarification sought is only with regard to the words 'on merit on other
points'. The assessee through its application requested the Hon'ble High Court
to insert the word "and" between the words "on merit and on other points."

• No confusion was ever raised with regard to the interpretation of these words
by the Tribunal but this application was made only to create the ground for
seeking adjournment before the Tribunal.

• Therefore, it appears that the assessee is trying to seek adjournment for one
reason or the other in order to delay the disposal of the appeal pursuant to the
direction of Hon'ble High Court.

• In the light of these facts, there is no merit in the request of the
adjournments moved by the assessee. Accordingly adjournment request rejected.

Per Accountant Member

• It is not open to even any bar association or other interest groups also, much
less an individual lawyer or group of representatives – as is the case before
us, to hold functioning of this Tribunal to ransom by seeking adjournments on
the ground that they have some issues, howsoever legitimate as they might think
these issues are, against a particular judicial officer.

• That is de facto boycott of a judicial officer and a strike against the
judicial office he holds.

• As a matter of fact, as Hon'ble Supreme Court has observed, such boycotts or
strikes are nothing but a contempt of court and a court itself also should not
become privy to this by "adjourning the case on the ground that lawyers are on
strike".

• The decisions to take whether or not a judicial officer should hear a
particular case or not is to be taken by the judicial officer or by the well
settled administrative guidelines and judicial traditions.

• Just because, for whatever reasons, a crisis situation has been deprived of an
appropriate solution, no direct or indirect interference in judicial powers of a
judicial officer can be justified. No short cuts are permissible for anyone –
shorts cuts such as adjourning the cases on the board or causing adjournment of
such cases, or short cuts resulting in compromising with independence and
dignity of a judicial officer.

• The functioning of this Tribunal obviously cannot go on when a lawyer, or a
group of lawyers, seeks an adjournment on the ground that objectivity of the
judicial officer is not beyond doubt and that there is a petition to that effect
is pending before higher authorities.

• No judicial institution can be allowed to function if these reasons are
treated as good enough to grant adjournments.

• A judicial officer, when performing judicial duties, is not performing in a
swaymvar; he is discharging solemn duties of rendering, impartially and
fearlessly, justice pure and simple. '

• Representatives of taxpayers cannot be allowed to choose the judicial officers
for adjudicating upon their grievances.

• A judicial officer need not bother about how representatives of the taxpayers
will react to his judgments, or how will even his own colleague on multi member
bench view his approach to the judicial work.

• There should be harmony in functioning but not at the cost of independence.

• There should be healthy respect for each other but not at the cost of
betraying one's own conscious and commitment to the time-tested values.

• There should be brotherhood amongst all but not at the cost of damage to the
public good.

Related case

Onkar Nagreeya Sahkari Bank Ltd. I.T.A. No.572/Lkw/2012.

■■■

[2013] 34 taxmann.com 296 (Lucknow - Trib.)

IN THE ITAT LUCKNOW BENCH 'A'

Kanpur Plastipack Ltd.

v.

Income -tax Officer, Range - 6(2), Kanpur

SUNIL KUMAR YADAV, JUDICIAL MEMBER
AND PRAMOD KUMAR, ACCOUNTANT MEMBER
IT APPEAL NO. 1002 (LUCK.) OF 2006
[ASSESSMENT YEAR 1997-98]
JUNE 21, 2013

S.K. Garg and Pradeep Kumar Kapoor for the Appellant. K.M. Dixit for the
Respondent.
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#11
Discussion / MISCONDUCT OF BANK’S LAWYER
June 25, 2012, 12:25:20 PM
MISCONDUCT OF BANK'S LAWYERA lawyer who does not file recovery suits entrusted by a bank as a client is liable for disciplinary action, the Supreme Court has ruled in the case, N V Ramakrishna vs Syndicate Bank. In this case, the bank had handed over 75 cases for recovery. There was no response from him for a long time. So another lawyer was engaged to find out the fate of some of the cases. It was found that those cases were not filed in the court. Therefore, the bank moved the Bar Council of Andhra Pradesh and later the Bar Council of India. Its disciplinary committee found that the lawyer had committed professional misconduct. It suspended his practice for one year and imposed a fine to be given to the advocates' welfare fund. On appeal, the Supreme Court rejected his petition, but reduced the suspension period by half. –
#12
Discussion / share capital & premium
June 24, 2012, 10:51:17 AM
If proper source of capita and share premium is not shown than addition can be made under sec 68 of IT Act
ITA No.2653/Del./2011
(Assessment Year: 2007-08)
#13
Discussion / section 43[5] vs 73
June 23, 2012, 08:31:34 AM
" When once we held that the transactions done by delivery as well as the transactions of derivatives are not hit by section 43(5) of the Act it is in our considered view that the aggregation of the share trading loss and profit from derivative transactions should be done before the application of the Explanation to section 73 of the IT Act is applicable."
ITA No.1019/Kol/2011 M/s. Arena Textiles & Industries Ltd., Kolkata
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#14
Is assessee liable to deduct TDS on payment made to any bank for commission on use of credit card ?????
#15
Court rejects plea on declaring advocate casteless[/size][/color]


February, 21st 2012
The district court here has dismissed an application by city-based lawyer to declare him casteless/religionless, thus putting to rest all the speculations about decisions given by courts on unusual cases.

Giving the verdict the court presided by SS Todankar, Judicial Magistrate said if the court as per the request of the applicant declares him as casteless, then the opinion of caste, and religion that is present in the society among the individuals may be thrust on the other members of the society.

Lawyer Sreerang Khambete had made the application to declare him as religion less and allow him to live a life of a simple human being, following which the court gave its ruling after a period of more than three years.

Todankar also said that after the death of the applicant there may be numerous problems in his family relating to the succession rights, their religion etc and hence he cannot give the declaration sought by him.

The judge in his order also said that the provisions of section 34 of the Specific Relief Act, which gives right for this court to make declarations does not include the declaration relating to any religion and hence the same cannot be applied here.

 
In addition to this the judge also dismissed the reference made by the applicant of the Israel Court decision and said the ruling of other countries' court was not binding on our courts.

The state of Maharashtra, Collector of Thane, and Union of India are the defendants in the suit. And they were issued summons by the court way back in December 2009, asking them to file their reply. However none of the defendants appeared in the suit.

Finally, the court decided to proceed with the hearing ex-parte as both the governments failed to appear and contest the case.

However looking to the importance of the question involved, the court asked Khambete, to suggest names of advocates who are proficient in constitutional law who will can be appointed as friend of court - Amicus Curie.

In his suit he told the court that he belonged to Hindu religion coming under the class of Bramhins and was an advocate by profession for the last 20 years.

 
He told the court in his application that he was fed up with the politics of religion and capitalisation of religion for self aggrandisement.

He further said that he believes that religion and caste are not God made but was creation of man.

According to the plaintiff if people live only as human being, there will be no disputes, differences and communal tension in the society.

Animals, he pointed out have no religion and caste and therefore live happily. It is the indicator of how casteless and religionless society will live peacefully. Organisation of society on communal lines is an injury to society, he said.

He said that label of religion and caste was unnecessary, and unless same was removed it was impossible to live as human being.
#16
Discussion / 144C draft order
January 11, 2012, 08:56:30 PM
Is it mandatory when AO himself makes adjustments in case of international transactions below 15 Cr  ?
#17
Discussion / 14A
January 02, 2012, 12:54:46 PM
S. 14A --Exemption--Dividend--No expenditure in fact incurred in earning
dividend income--No disallowance permissible-- CIT v. Reliance Industries Ltd.

339 ITR (Bom) . . . 632
 
 
#18
Discussion / TDS u/s 195
December 24, 2011, 09:41:21 PM
Is it permissible to deduct TDS  on exact amount of Capital gain on purchase of flat instead of  deducting TDS on purchase price   ?
#19
Discussion / investment u/s 54EC
December 24, 2011, 09:34:21 PM
can one invest one crore in one financial year 2012-13 in respect of two LT CG earned , say one in FY 2011-12 & second in  FY 2012-13 ? Assuming six months are not over for first LT CG 
#20
Discussion / investment u/s 54EC
December 24, 2011, 09:30:08 PM
can one invest @ Rs 50 lacs in each of two succeeding financial years if LT CG is earned say on 1-1-2012? /move]