The Tax Bar has mourned the untimely demise of eminent jurist Palkhivala. Leading tax lawyers have recollection his stellar contribution to the development of law and furthering the cause of justice.
10/08/2018
Respectful homage to Shri B. A. Palkhivala (29/08/1926 – 27/07/2018)
Tax Bar pays rich tribute to Shri B. A. Palkhivala
“Late Mr. Behram Palkhivala can be described as a gentlemanly lawyer. In the Library, one would find him absorbed in his briefs and apart from normal pleasantries, he neither indulged in small talk nor criticism. Despite having co-authored the 6th and 7th Editions of the monumental treatise ‘The Law and Practice of Income Tax’, he was unassuming.
We, on behalf of the members o the ITAT bar association, Mumbai, express out heartfelt condolences and pray to the almighty for eternal peace of the departed soul. May god give strength to the members of the bereaved family to bear the loss.”
Mrs. Arati Vissanji, President of the ITAT Bar Association
(L-R) CJI (Retd) S. P. Bharucha, S. E. Dastur, Behram Palkhivala & Arvind Datar
“Shri B.A. Palkhivala, popularly and fondly known as Behram was a very bright star in the legal firmament. His only handicap was that he was standing behind his illustrious and legendary brotherNaniPalkhivala, who was like a sun, who overshadowed him.
But for people who knew him, they cannot forget, how, a perfect gentleman he was. He was self-effacing but a bright scholar, and very few people, know that behind Palkhivala’s Magnum opus, he had spent hours of labour, to compile all the case laws; and he, unlike some others never claimed any credit for the same.
He was always calm, polite, smiling, always helpful a perfect and ideal Parsi. In the court his arguments were to the point, and his persuasive advocacy, was lauded by Judges who held him in high respect. In all knotty situations, in court, he had the right judgement to clinch the case.
As a person, he was always helping everybody, and had a variety of interest like literature, Philosophy, yoga and philanthropy. His variety of interests, showed how versatile, yet simple man he was. His interest in yoga and philosophy was transmitted to his entire family.
The legal fraternity will miss him because the like of him do not come very often in this world.”
Y.P. Trivedi, Senior Advocate, Past President, ITAT Bar Association
“When I joined the profession, I had the opportunity of witnessing Shri B. A. Palkhivala argue many matters before both, the ITAT and the Bombay High Court. It always struck me of how he was always very polite in his representations and addressed the bench with great respect and humility. His soft spoken nature and courteous mannerism was not only restricted to the members of the bar but also towards departmental representatives appearing against him.
The AIFTP in 2003 published a special issue containing tributes to “the stalwarts of tax Bar”. On behalf of AIFTP, we sent a copy to him. We received a reply that reflected his simplicity and industrious nature that read as under:-
“I am deeply touched by your gesture. They will be my prized possession. They were received three days ago, but i did not acknowledge immediately, because I wanted to go through them first. My congratulations and thanks to you.”
When the ITAT Bar Association in association with AIFTP, started Nani A. Palkhivala national Tax moot court competition in Mumbai, he generously contributed to the association for 10 years. He used to collect all the souvenirs which were released on the occasion of the N.A. Palkhivala national tax moot court competition. His Teutonic hard work and contribution to the ‘Law and practice of Income-tax’ is something that is widely acknowledged and appreciated.
When the ITAT Bar Association and AIFTP released their book “Income Tax Appellate Tribunal – A fine balance law and procedure, dedicated to Padmavibhushan Late Dr. N. A. Palkhivala, Senior Advocate, Mr. B. A. Palkhivala was extremely happy and had personally made a call to congratulate me. Having worked closely with his brother for many years, he has made an indelible mark upon the history of the Indian Income Tax Jurisprudence as we know it in his typical modest and down to earth fashion.
It is rare to find a man who is both knowledgeable and humble. It is rarer still to find a man who has attained success in life and yet managed to retain his humility and grace. His death is a great loss not only to the tax profession but to tax jurisprudence as a whole.
May the almighty grant eternal peace to the departed soul and also give divine strength to the members of the bereaved family to bear the loss.”
Dr. K. Shivaram, Senior Advocate, Past President, ITAT Bar Association
A few Landmark judgments passed by the Courts where Shri. B. A. Palkhivala had appeared are mentioned below:
1. CIT v. Oriental Government Security Life Insurance Co. Ltd. (1983) 141 ITR 215 (Bom)(HC)
An assessee becomes entitled to refund of tax deducted at source on the date on which the tax payable by the assessee becomes determinable. In the instant case, the right to refund arose at the end of the relevant previous year, by which time all assets appertaining to the life insurance business of the assessee had vested in the LIC. As the right to refund itself vested in the LIC, the assessee was not entitled to such refund.
2. CIT vs. v. British Drug Houses India Pvt. Ltd. and Allen &Hansburys Ltd. [1980] 124 ITR 192 (Bom)(HC)
As the joint venture, by whatever name it might be called, did not result in any profit. No question of any tax liability or assessment could arise at all. As such, it was unnecessary to go into the other two questions, viz., whether the arrangement entered into by the two companies under an agreement, was a partnership ; or whether the proceedings under section 147(a) had been validly initiated.
3. Mafatlal Gagalbhai& Co. Pvt. Ltd. v. CIT [1980] 122 ITR 382 (Bom)(HC)
The definition of a “subsidiary company”, as given in the Finance Act, has to be accepted as containing within itself a precise definition of what a subsidiary company is for the purposes of applying the relevant provisions for calculating rebate to super tax.The dividends in question were, therefore, not entitled to super tax rebate of 50 per cent as dividends from subsidiary companies.
4. CIT vs. Geigy International Ltd. [1980] 124 ITR 138 (Bom)(HC)
S.99(1)(iv) r.w.with fifth schedule as it stood before 1-4-1964. Super tax Assessment —Assessee claimed exemption in respect of dividends received from Indian company engaged in industry for manufacture and production of any article specified at relevant time in fifth schedule to the Act. Whether exemption had been rightly held admissible, although Indian company had not raised fresh capital by public subscription. Rule 1 of fifth schedule was applicable as raising fresh capital by public subscription was not a necessary pre-condition.
5. Hindustan Lever Ltd. v. CIT [1980] 121 ITR 951 (Bom)(HC)
S.2(5) of the Finance (No. 2) Act, 1962 and rule 2(3) of the Income-tax (Determination of Export Profits) Rules, 1962 – Export profits – Profit made on export of other products – Whether, for allowing benefit under section 2(5), profit earned or saving effected in import of palm oil formed a part of profit derived from export – Held, no – Whether benefit could be given only on overall profit on all exports taken together – Held, no.
6. CIT v. Tata Hydro Electric Power Supply Co. Ltd [1979] 118 ITR 716 (Bom)(HC)
s.32 : Depreciation—assessee issued shares to meet part of finance for acquisition of foreign equipment and paid interest out of capital on newly issued shares—interest was allocated to plant and machinery and thus was capitalized—whether interest paid by assessee was by way of dividend on shares or by way of interest as such on capital—held that it was interest as such —whether assessee was entitled to claim depreciation on capitalised interest—held, yes
7. Gordhandas Mathuradas Matani v. CIT [1963] 49 ITR 449 (Bom.)(HC)
Since firm had not created any mortgage in favour of bank, interest paid on overdraft could not be regarded as interest on mortgage. Interest charged by firm to assessee could not, again, be regarded as interest on any loans secured on mortgage by assessee from firm because there was no mortgage of any property of assessee in favour of or with firm. Therefore, in computing income from property under section 9, assessee was not entitled to allowance of interest charged to him by firm.
in fact mastery of language of English by Mr. Palkhiwala is indeed a great asset, else his way of analysis is just impossible; today no one is really having so much great mastery in English language, so every one ought to have real mastery of the language in which law is written, else one is bound to fail. see, Constitution is written in English that is authentic so constitution ought to be understood in English only, not in any other language – that is why, GST fails just look at the part III -fundamental rights, one has to read Art 368 with Art 14 that way Parliament is barred to make the relevant constitutional amendment, saying all states or majority of states approved, real power is not with
MLAs but with the citizens’ only. Any MLA is elected with 51% votes, that cannot entitle him to take for granted as if he as defacto agent cannot assert on the rights of other 49% or 48% of his constituency, so CM or the legislature faces same bar as under Article 368 bars state legislatures to make any amends on the fundamental rights of citizens of the States. Without power of fluency in English any would fail. so English is the language of all the Custodian Courts language, that English cannot be changed by any government of india or the all states put together. GST can be struck down by honorable Supreme court of India so too by High courts the State’s passing of the constitutional amendment by it’s so called approval as void ab initio as ultra vires the very GST constitutional amendment is my considered opinion too. Incidentally I had an opportunity to work as a clerk for Mr. Palkhiwala, he told me the importance of English language in the indian heritage as good as Sanskrit he asserted in his own humble way.My deep respects to that great intellect, none is comparable even today as then too. tks n regards.
Though I was not fortune to have the pleasure of meeting Palkhivala Brothers, but I certainly know that they are the great luminaries in the profession. The high standards and professional expertise would always be remembered with profound memories. My heartfelt condolence and pray for eternal peace to the departed soul.