1. CIT vs AIMIL Ltd: SECTION 43B COVERS EMPLOYEE’S PF (36(1)(VA) CASES): HELD

“..We may only add that if the employees‟ contribution is not deposited by the due date prescribed under the relevant Acts and is deposited late, the employer not only pays interest on delayed payment but can incur penalties also, for which specific provisions are made in the Provident Fund Act as well as the ESI Act. Therefore, the Act permits the employer to make the deposit with some delays, subject to the aforesaid consequences. Insofar as the Income Tax Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed..”

(Click here for judgment)

  

2. Nimitya Properties Ltd. vs CIT & Ors.-DHC: SECTION 281B PROVISIONAL ATTACHEMENT WRIT ORDER:

HELD: “No doubt, proceedings in respect of Assessment Year 2007-08 stands abated because of the search. However, it is also a fact, which cannot be shyed away, that the proceedings for that assessment year will have to be initiated under Section 153A or 153C of the Act. Such proceedings, which are to be necessarily commenced as a result of the search, are to be treated as proceedings under this Act. Therefore, it cannot be said that he was simply carried by the suggestion mooted by the Deputy Director and did not apply his own mind….

15. The fact situation in Gujarat Gas Co. Ltd. Vs. Joint Commissioner of Income Tax (Assessment) [245 ITR 84] was entirely different. In that case, what was found is that the Central Board of Direct Taxes had issued instructions to the sub-ordinate Authorities directing that assessments to be made in a particular manner. This included the instructions that in scrutiny cases under Section 143 (3) of the Act, the income cannot be assessed at a figure lower than the returned income. Circular issued by the CBDT in exercise of powers under Section 119 was found to be ultra vires on the ground that the AO exercised quasi judicial functions and other authorities cannot control or affect his judgment in the matter of assessment. Furthermore, the present order under Section 281B of the Act is administrative in nature and not quasi judicial.”

(Click here for judgment)

  

3. NIIT Ltd vs Union of India & Ors.-DHC : Writ Order Section 263 Assailed: Held/observed: (Interalia) On Alleged Dictated Action:

“The legal position which cannot be disputed is that when a particular authority is vested with the power to discharge statutory function, like the Commissioner who is empowered to pass orders under Section 263 of the Act, it is that authority which is to apply its independent mind and arrive at its own conclusion without being influenced by any other authority, much less the higher authority. Unfettered discretion lies in the Commissioner of Income Tax to pass orders under Section 263 of the Act. He is supposed to examine the records produced before him to arrive at a conclusion whether the assessment order passed by the AO suffers from infirmities and needs to be revised under Section 263 of the Act. The parameters which are laid down in Section 263 of the Act need to be fulfilled in exercising such a discretion. It is the Commissioner who has to satisfy himself, on the basis of available records, that in a given case the conditions stipulated under Section 263 of the Act are satisfied. In arriving at this conclusion, he is not to be controlled even by a higher authority. Likewise, the higher authority is not to interfere with the independence of his unfettered discretion which is statutorily conferred upon the Commissioner. If it is found that the order is passed at the dictates of the higher authority, such an order can be set aside…”

(Click here for judgment)

  

4. Rahulijee & Co. Pvt. Ltd. vs ITAT-DHC: Writ over ITAT order : “4. From the submissions of the counsel appearing on behalf of the Petitioner, it is noticed that the questions sought to be raised under Articles 265 and 300A of the Constitution of India, relate to the right of the Petitioner to be taxed on net income and not on the gross income, as has purportedly been done by the tax authorities below including the Tribunal, according to the Petitioner.  5. In taxing matters the Hon’ble Supreme Court has taken a view that High Court should not convert itself into an original authority or an appellate authority in such matters while exercising its jurisdiction under Article 226 of the Constitution of India and the aggrieved party must be relegated to avail the alternative remedy provided under the statute. It is observed that the taxing statute namely, the Income Tax Act, provides a complete machinery for assessment of tax and for obtaining relief in respect of any improper orders passed by the authority. The Petitioner must, therefore, resort to the statutory remedies and cannot be permitted to invoke the jurisdiction of the High Court under Article 226 of the Constitution.”

(Click here for judgment)

   

   

What's New 

a.   States raising VAT to drive a hard bargain on GST  (Click for detail) 

b.   RBI and 926 branches of Banks to accept Advance Income Tax  (Click for detail)

c.   Revised DTC draft in 1-2 Months  (Click for detail)

d.   New Return Forms for Assessment Year 2010-11  (Click for detail)

e.   NPS gives 12% average return in first year  (Click for detail)

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"Voice of CA"

"Voice of CA"

CA. Sanjay Kumar Agarwal, Founder - Voice of CA

Member  Central Council - ICAI  (Former Chairman - NIRC)

Mob : 9811080342, agarwal.s.ca@gmail.com

CA. Kapil Goel, Moderator-Direct Taxes, Mob:9910272806, cakapilgoel@gmail.com

CA. Sidharth Jain, Co-Moderator, sidhjasso@yahoo.com

CA. Mukesh K Bansal, Co-Moderator-FEMA, Mob:9540022533, mukbansal80@gmail.com