Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Assistant Commissioner of Income Tax Versus Megh Malhar Finstock Pvt Ltd.

Penalty under section 271(1)(c) - CIT(A) deleted penalty levy - whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries [2010 (2) TMI 108 - BOMBAY HIGH COURT]? - grievance with the majority view - Held that:- In the light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rdingly.

In case anyone has grievances with the majority view, the aggrieved party can seek appropriate remedy against the same. That situation will come only when the majority view is implemented and a formal order is passed on the appeal. However, just because one of the parties before us has a grievance with the majority view, notwithstanding the merits of such grievance, even if any, we must not delay the judicial process of giving effect to the majority view. The majority view in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that CIT(A) was not justified in deleting the penalties, imposed on the assessee under section 271(1)(c) of the Income Tax Act, 1961, of ₹ 46,64,350 for the assessment year 1995-96, ₹ 2,88,42,796 for the assessment year 1996-97 and of ₹ 34,78,593 for the assessment year 1997-98. The relief so granted by the CIT(A) thus stands vacated and the penalty orders passed by the Assessing Officer stands restored. - Decided against assessee. - I.T.A. Nos. : 1828, 1829 and 1830/Ahd/2011 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

section 255(4) of the Income Tax Act, 1961: Whether, under the facts and circumstances of the case, learned CIT(A) was justified in deleting the penalty under section 271(1)(c) of the Act? 2. It was in this backdrop that Hon ble Shri I P Bansal, Judicial Member, was finally nominated as a Third Member, and, vide his order dated 16th July 2014, concluded as follows: …….I concur with the view taken by Hon ble Accountant Member that on the facts and circumstances of the case, deletio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ity opinion. However, certain objections were raised by the learned counsel of the assessee urging us to adjourn the matter or refer the matter to Hon ble President for constitution of a special bench. Vide our order of even date, in the cases of Jupiter Corporation Services Limited Vs DCIT and Sulochana Gupta Vs DCIT, we have, giving effect to the majority opinion and dealing with the same objections raised by the assessee, held as follows: 4. Shri Tushar P Hemani, learned counsel for the asses .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rs since the learned Third Member, in his opinion, has disregarded the division bench orders. Our attention is invited to a recent judgment of the Hon ble jurisdictional High Court, in the case of CIT Vs Vallabhdas Vithaldas [(2015) 56 taxmann.com 300 (Guj)] wherein it is held that the decisions of the division benches must bind the single member benches. Learned counsel then points out that a third member decision cannot be equated with a special bench decision of three members, which may not b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ird Member is nothing more than an opinion but our giving effect to such an opinion will result into an order of the Tribunal coming into existence but then this order will be directly contrary to the decision of Hon ble jurisdictional High Court. Our attention is also invited to the judicial precedents in the cases of Sayaji Iron & Engg Co Ltd Vs CIT [(2002) 253 ITR 749 (Guj)], Union of India Vs Paras Laminates Pvt Ltd [(1990) 186 ITR 722(SC)], Pradip Chndar Parija Vs Pramod Chandra Patnaik .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of the Hon ble high Court that it has not taken into account an earlier decision on the same issue. We are thus urged to desist from such an exercise and from passing an order which is wholly unsustainable in law and in complete disregard to binding judicial precedents. It is learned counsel s prayer that the matter should be referred to Hon ble President for constitution of a special bench to resolve this issue. 5. Shri Subhash Bains, learned Commissioner (DR), vehemently opposes these submiss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that, even almost one year after the Third Member opinion is expressed, the disposal of these appeals is being avoided due to dilatory tactics employed by the assessee. It is not the case that the decisions of the coordinate benches have not been followed without any reasons, according to the learned Commissioner (DR), but the learned Third Member, in a very erudite and detailed order, has given specific reasons as to why these decisions donot hold good in the present case. Learned Commissioner .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

three Members have already given their views in favour of the stand of the Assessing Officer and all that we are required to do at this stage is to give effect to the majority views. 6. We have heard the rival submissions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. As Shri Hemani rightly points out, the legal position as it exists now, post Vallabhdas Vithaldas decision (supra) by Hon ble jurisdictional High Court, is t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

relies on the collective decision making process where multiple legal minds are simultaneously applied assisted by legal research and presentation of legal arguments. When such materials and legal contentions are processed by several judges, the decision that is rendered even if not unanimous has the advantage of input from larger number of legally trained minds. In the present case, unlike a case of larger Bench where three or more judges would be simultaneously hearing a question of law, with .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

later Division Benches on the point which arises directly in the present reference 8. Viewed thus, a larger bench decision binds the bench of a lesser strength because of the plurality in the decision making process and because of the collective application of mind. In simple words, as held by Their Lordships, what three minds do together, even when the result is not unanimous, is treated as intellectually superior to what two minds do together, and, by the same logic, what two minds do together .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot possible as a result of a single member bench, such as in a situation in which one of the dissenting members has not stated his views on an aspect which is crucial and on which the other member has expressed his views, it is possible to constitute third member benches of more than one members. That precisely could be the reason as to why even while nominating the Third Member under section 255(4), Hon ble President of this Tribunal has the power of referring the case for hearing on such point .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

case of P C Puri Vs CIT [(1985) 151 ITR 584 (Del)], expressed a contrary view on this issue which held the field till we had the benefit of guidance from Hon ble jurisdictional High Court. The approach adopted by the learned Third Member was quite in consonance with the legal position so prevailing at that point of time. For the sake of completeness of discussion, we set out the views so taken by Hon ble Delhi High Court and leave it at that:- There is no difference, really speaking, between a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er the three judges sit at the same time or at different times-two at one time, and the third hearing the matter later on a difference of opinion-does not make much difference. As has happened in this case, the two judges have differed. So the case has come to me, the third judge. The two judges have expressed their opinion. I am now called upon to give my opinion. The opinion of the majority will prevail. All that happens is that the third is segregated from the two and does not sit with them. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s to be referred to a third judge. (see sec. 98, CPC). In my opinion, the reference was correctly made to me as the third judge. 9. However, before we address ourselves to the correctness of fundamental factual assumption underlying the contentions advanced by the learned counsel, that the decision of the learned Third Member is unsustainable in law inasmuch as it is contrary to the decisions of the division benches directly on the issue before the learned Third Member, we still have to deal wit .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ACIT (ITA Nos, 1408 and 1409/PN/2003; order dated 28th February 2013), a coordinate bench of this Tribunal was in seisin of a situation in which by the time the division bench was called upon to give effect to the three member third member bench decision {reported as B T Patil & Sons Belgaum Constructions Pvt Ltd Vs ACIT [1 ITR (Tribunal) 703]}, the division bench also had the benefit of guidance from Hon ble jurisdictional High Court on that issue, and the assessee did obtain a directions f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id assessee u/s. 80IA(4) of the Act. The said jurisdictional order is contrary to the opinion given by the Third Member of the Tribunal. Meanwhile the appeal filed by the assessee against the order of the Tribunal dismissing the appeals of the assessee in limine, before the Hon'ble Bombay High Court came up for hearing on 24/01/2013. In the course of hearing before the Hon'ble Bombay High Court the Counsel of the assessee brought to the notice of the Hon'ble High Court the fact that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as per the provisions of section 255(4) of the Act. 5. The Hon'ble Bombay High Court permitted the Counsel of the assessee to withdraw the said appeals. While passing the order the Hon'ble High Court has kept all the contentions open and further directed the Tribunal to consider the decision of the ABG Heavy Industries and other decisions while passing their order giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. The relevant portion of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pen. 3. The appeal is dismissed of in above terms. 6. The issue before us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal to consider the said decision of ABG Heavy Industries and all ot .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Hon ble High Court to take into account the subsequent judicial developments by way of adjudication on the issue in appeal by Hon ble Courts above. The division bench has, taking note of these directions and indicating their limitations in the light of these directions, have specifically observed that the Tribunal is bound to follow the directions and we do so accordingly . If the division bench had the powers to take note of the subsequent judicial developments, post the expression of views by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r judicial precedent, supporting the stand of the assessee, has been brought to our notice. In view of these discussions, and as Shri Bains rights contends, at the time of giving effect to the majority view, it cannot normally be open to the Tribunal to go beyond the exercise of giving effect to the majority views, howsoever mechanical it may seem. In the case of dissenting situations on the division bench, the process of judicial adjudication is complete when the third member, nominated by Hon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ibunal does, remains, and shall always remain, subject to the directions of the Hon ble Courts above, and, notwithstanding our humble understanding about the scope of work at this stage of proceedings under the scheme of the Income Tax Act, any directions from the Hon ble Courts above, as in the case of B T Patil (supra), are to be loyally and unhesitatingly followed by us. That is a different situation altogether but then merely because such directions have been issued in one case, it cannot be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Circular: Promote the officers of the Indian Revenue Service (Customs and Central Excise) to the grade of Principal commissioner of customs, GST & CX

Circular: Allocate the charges amongst the Members of the Central Board of Excise and Customs

Circular: Strategy for audits in 2017-18 consequent to GST - Audit by Central Excise and service Department to continue for the accounting year 2016-17 and for the past period

Circular: Appoint the IRS (C&CE) officers as Principal Commissioner (Revision Application) and ex-officio Additional Secretary

Circular: Time limit for filing intimation for composition levy under Rule 3(1) of the CGST Rules, 2017 extended to 16-8-2017

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017

Circular: C.B.E. & C. Advisory on Customs related matters on introduction of Goods and Services Tax regime

Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

Forum: Duty Drawback & Input Credit - under GST

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Forum: Input tax credit

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.

News: Anti-dumping duty on import of bus/truck tyres from China

News: Fast-track GST refund, else ₹ 65K cr may be stuck: Exporters

Highlight: It is open to the Settlement Commission to use best judgment in arrival of the figure. Nonetheless it has to explain the manner in which the best judgment figure has been arrived at by the Settlement Commission - HC

Highlight: Deemed dividend u/s 2(22)(e) - advances given to societies - in the absence of legal right of the assessee in the said society the amount advanced cannot be treated as deemed income.

Highlight: When electrical installations are treated as plant and machinery the depreciation has to be allowed @ 25% as per provisions contained u/s 32

TMI Note: Capital Gain - transfer of right in the land or transfer of land itself - addition u/s 50C - Harassment to the honest tax payers

Highlight: Option to avail composition scheme under GST by electronically filing an intimation in FORM GST CMP-02 and FORM GST ITC-03 upto 30-9-2017 - See Rule 3(3A)

TMI Note: Does ICDS apply for the purposes of computing exemption u/s 11 to 13.

Highlight: Voluntary Reporting of Estimated Current Income and Advance Tax Liability - CBDT issues draft notification

TMI Note: Certain ICDS provisions are inconsistent with judicial precedents. Whether these judicial precedents would prevail over ICDS.

Highlight: Provisions of ICDS shall prevail w.e.f. AY 2017-18 to the transactional issues dealt therein over earlier judicial pronouncements.

News: Voluntary Reporting of Estimated Current Income and Advance Tax Liability



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version