Court Supreme Court of India
Brief Appearing in support of the said application, copies of which have been served on all the interested parties, including the members of the Implementation Committee, represented by Mr. P.P. Rao and Mr. Ranjit Kumar, learned senior advocates, Mr. Sushil Kumar Jain, learned advocate submitted that one omission appears to have been made in paragraph 14 of the judgment, wherein while considering the principle of ONE BAR ONE VOTE, we had indicated that persons who had contested elections to the Executive Committee of any Court annexed Bar Association, other than the SCBA, during any of the years from 2007 to 2012, could not be allowed to vote to elect the Office Bearers of the SCBA on the aforesaid principle, or to attend the General Body meetings of the SCBA. It was further mentioned that the same would also include a person who had cast his vote in any election to the Executive Committee of any Court annexed Bar Association, other than the SCBA, for the above-mentioned years. It has been pointed out by Mr. Jain that through inadvertence, the Supreme Court Advocate-on- Record Association had not been excluded, although, it formed an integral part of the SCBA.
Citation SUPREME COURT BAR ASSOCIATION & ORS. Appellant (s) VERSUS B.D. KAUSHIK ETC. Respondent(s)
Judgement REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION I.A.NO.6 IN CIVIL APPEA L NO. 340 1 OF 200 3 & 340 2 OF 200 3 SUPREME COURT BAR ASSOCIATION & ORS. Appellant (s) VERSUS B.D. KAUSHIK ETC. Respondent(s) O R D E R I.A.No.6 has been filed on behalf of the Supreme Court Bar Association and Supreme Court Advocate-on-Record Association, through its Secretary, Mrs. B.Sunita Rao, advocate, for clarification and modification of the judgment/order dated 20th July, 2012, wherein, while considering the application filed by the SCBA(I.A. No.5 of 2011), certain suggestions made by the Implementation Committee had been accepted. Appearing in support of the said application, copies of which have been served on all the interested parties, including the members of the Implementation Committee, represented by Mr. P.P. Rao and Mr. Ranjit Kumar, learned senior advocates, Mr. Sushil Kumar Jain, learned advocate submitted that one omission appears to have been made in paragraph 14 of the judgment, wherein while considering the principle of ONE BAR ONE VOTE, we had indicated that persons who had contested elections to the Executive Committee of any Court annexed Bar Association, other than the SCBA, during any of the years from 2007 to 2012, could not be allowed to vote to elect the Office Bearers of the SCBA on the aforesaid principle, or to attend the General Body meetings of the SCBA. It was further mentioned that the same would also include a person who had cast his vote in any election to the Executive Committee of any Court annexed Bar Association, other than the SCBA, for the above-mentioned years. It has been pointed out by Mr. Jain that through inadvertence, the Supreme Court Advocate-on- Record Association had not been excluded, although, it formed an integral part of the SCBA. The suggestion is well taken and accepted by all the interested parties represented by learned counsel, and, accordingly, we modify paragraph 14 of the said judgment dated 20th July, 2012, by including the words "AND THE SCAORA" after the words "OTHER THAN THE SCBA" appearing at lines 3 and 4 of the paragraph and also after the same words appearing in line 11 of the said paragraph. Let the said paragraph be modified and read accordingly. As far as the other prayer made on behalf of the applicant is concerned, with regard to the number of filings in a year, as indicated in paragraph 9 of the judgment, we are convinced that since all advocates and members of the SCBA will be covered by the number of entries into the Supreme Court High Security Zone by the Proximity Card, the same does not require any modification at this stage. I.A.6 filed in the disposed of appeal(s) is allowed to the aforesaid extent. ...................J. (ALTAMAS KABIR) ...................J. (J.CHELAMESWAR)
 | | | Posted on 22 August 2012 by Diganta Paul |
Court INCOME TAX APPELLATE TRIBUNAL
Brief Assessee took up the matter in appeal and challenged the action of Assessing Officer and it was submitted before first appellate authority that the assessee is a proprietor of M/s Ceco Electronics and is engaged in the business of transformer manufacturing but the business has been closed for the last ten years. The assessee had shown the sundry creditors of Rs.65,96,929/- which included the liability of Rs.44,32,266/- of Oriental Bank of Commerce (OBC) Chandni Chowk, Delhi. Since the business of the assessee was closed and the assessee was not able to pay the liability of the bank, there was a compromise between the bank and the assessee through the Delhi State Legal Services Authority (Lok Adalat) for settling the accounts of the bank. As per the compromise formula the assessee was required to pay the amount of Rs.31,08,833/- as against the liability of Rs.44,32,266/- and as such there was cessation of liability of Rs.13,23,433/- (Rs.44,32,266)(-) Rs.31,08,833/-). Since there was a cessation of liability to extent of Rs.13,23,433/- the Assessing Officer has made the addition for this amount u/s 41(1). Assessee aggrieved by the order and appeal to CIT and CIT after satisfying passed the order in favor of assesse and Revenue cross appeal on the order.
Citation ITO, Ward 29(3), New Delhi (Appellant) Vs. Late Shri Shyam Sunder Chopra, L/H 1. Smt. Shashi Chopra (Wife) 2. Mrs. Shweta Sood (Daughter) B-3/450, G/F, Paschim Vihar, New Delhi-110063. (PAN/GIR No.AADPC969609G) (Respondent)
Judgement IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G': NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA No.5507/Del./2011 (Assessment Year: 2006-07) ITO, Ward 29(3), New Delhi (Appellant) Vs. Late Shri Shyam Sunder Chopra, L/H 1. Smt. Shashi Chopra (Wife) 2. Mrs. Shweta Sood (Daughter) B-3/450, G/F, Paschim Vihar, New Delhi-110063. (PAN/GIR No.AADPC969609G) (Respondent) Assessee by: Smt. Shashi Chopra (wife) Revenue by: Shri Neeraj Kumar, Sr.DR ORDER PER U.B.S. BEDI, J.M. This appeal of the Revenue is directed against the order passed by the CIT (A)- XXV, New Delhi, dated 20.09.2011 relevant to assessment year 2006-07, whereby department besides challenging deletion of addition of Rs.13,23,433/- made by the Assessing Officer, has also challenged the action of the CIT(A) in directing the Assessing Officer to verify the bank amount of actual cessation that amounts to setting aside the assessment. 2. The Assessing Officer passed order u/s 143(3) on 30.12.2008 determining total income at Rs.20,28,880/- as against returned income of Rs.85,450/-. 3. Assessee took up the matter in appeal and challenged the action of Assessing Officer and it was submitted before first appellate authority that the assessee is a proprietor of M/s Ceco Electronics and is engaged in the business of transformer manufacturing but the business has been closed for the last ten years. The assessee had shown the sundry creditors of Rs.65,96,929/- which included the liability of Rs.44,32,266/- of Oriental Bank of Commerce (OBC) Chandni Chowk, Delhi. Since the business of the assessee was closed and the assessee was not able to pay the liability of the bank, there was a compromise between the bank and the assessee through the Delhi State Legal Services Authority (Lok Adalat) for settling the accounts of the bank. As per the compromise formula the assessee was required to pay the amount of Rs.31,08,833/- as against the liability of Rs.44,32,266/- and as such there was cessation of liability of Rs.13,23,433/- (Rs.44,32,266)(-) Rs.31,08,833/-). Since there was a cessation of liability to extent of Rs.13,23,433/- the Assessing Officer has made the addition for this amount u/s 41(1). 4. The assessee is in appeal against the order of the Assessing Officer and it is submitted that the Assessing Officer is not justified to make the addition as the compromise formula with the bank did not work and as the assessee could not fulfill the conditions of the award of the Lok Adalat i.e. the assessee could not pay the settled amount of Rs.31,08,833/-. The assessee had also submitted a letter dated 29.07.2005 of the OBC before the Assessing Officer in which it was informed that the compromise formula and all the concessions to the assessee has been cancelled as the assessee did not make the payment of the installments as per the award of he Lok Adalat. The Assessingb Officer did not accept the explanation of the assessee and has made the addition of Rs.13,23,433/- on the ground of cessation of liability u/s 41(1). CIT(A) while considering the submissions of the assessee has concluded to hold as per para.3.3 of his order, with respect to first issue, as under: "3.3 I have considered the order of the Assessing Officer and the submissions of the assessee and I find considerable merit in the submission of the assessee that the Assessing Officer is not justified to make the addition when actually there is no cessation of liability of Rs.13,23,433/- as the assessee has failed to get the concession of Rs.13,23,433/- which was allowable only on the condition of payment of the balance/settled amount of Rs.31,08,833/- as against the total liability of Rs.44,32,266/-. Since the bank has not granted any concession to the assessee as per the bank's letter dated 29.7.2005 (copy enclosed and marked as Annexure –A), it will be not be fair and proper to sustain this addition as the assessee apparently did not gain any cessation of any liability. After considering all the facts and circumstances of the case, I am of the view that this addition cannot be sustained without further verification by the Assessing Officer from the bank and accordingly, the addition made by the Assessing Officer is deleted subject to the verification by the Assessing Officer form the bank regarding the actual cessation of liability. 5. Aggrieved by this order of CIT(A), department has come up in appeal and raised two grounds, firstly that CIT(A) has erred in deleting the addition of Rs.13,23,433/- made by the Assessing Officer subject to the verification by Assessing Officer from the bank that the amount of actual cessation which amounts to setting aside the assessment order, therefore, order of CIT(A) who is not competent to set aside the order needs to be reversed, which may be reversed. 6. Assessee in this case has expired on 6.5.2012 and Smt. Shashi Chopra, wife of the assessee appeared and filed death certificate issued by Municipal Corporation of Delhi certifying the death of the assessee on 6.5.2012 and submitted that widow and daughter of the assessee are only the legal heirs of the assessee. So, after obtaining no objection from the Revenue, wife and daughter of the assessee are substituted as legal heirs and fresh notices in the names of the legal heirs were issued. In response thereto, widow of the assessee appeared on her behalf and on behalf of her daughter in this appeal and submitted that CIT(A) has passed a fresh well reasoned order. So, there was no justification for the department to file any further appeal. Therefore, appeal of the Revenue should be dismissed. 7. Having heard both the sides and considering the material on record we find that in this case Ld.CIT(A) has in fact restored the matter to the file of the Assessing Officer for re-consideration and verification from the bank about the amount of actual cessation which amounts to setting aside the matter to the file of the Assessing Officer, and such action is beyond the powers confirmed upon the Ld.CIT(A) while dealing with appeal. So, action of the CIT(A) to this extent being not justified is set aside. But, since the amount of actual cessation has to be ascertained from the bank in order to verify the claim of the assessee, therefore, we find it just and appropriate to set aside the order of the authorities below in this regard and restore the matter back on the file of the Assessing Officer with the direction to re-decide the issue afresh after making enquiry from the concerned bank and by giving the opportunity to the assessee. We hold and direct accordingly. 8. As a result, the appeal filed by the department gets accepted for statistical purposes. Order pronounced in open court soon after the conclusion of the hearing on 02.08.2012. Sd/- Sd/- (S.V. MEHROTRA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: Aug. 2, 2012. SKB Copy of the order forwarded to:- 1. Appellant 2. Respondent 3. CIT 4. CIT (A)-XXV, New Delhi. 5. CIT (ITAT) Deputy Registrar, ITAT
| | | | Posted on 22 August 2012 by Diganta Paul |
Court INCOME TAX APPELLATE TRIBUNAL
Brief The facts indicate that original assessment was completed on 29.03.2004 and it was reopened by recording reasons on 26.03.2008. As per assessee, there was no failure to disclose all material facts and since reopening was done on the basis of retrospective amendment made in law, so it cannot be said that there had been any failure to disclose all material facts. Therefore, relying upon the cases reported in CIT vs. Navnitalal Sakarlal, 125 I.T.R. 67 (Guj.), (1) Simplex Concrete Piles (India) Ltd. (2) Geo Miller And Co. Ltd. vs. DCIT & Others, 262 I.T.R. 605 (Cal.), CIT vs. SIL Investments Ltd., 339 I.T.R. 166(Del.), it was pleaded for quashment of initiation of re-assessment as Assessing Officer could not assume jurisdiction and moreover mechanical approval has been given, therefore, relying upon the judgment reported in United Electrical Co. P. Ltd. vs. CIT And Others, 258 I.T.R. 317 at 322(Del.), Chhugamal Rajpal vs. S.P. Chaliha and Others, 79 I.T.R. 603 and Duli Chand Singhania vs. ACIT, 269 I.T.R. 192, Wel Intertrade P. Ltd. and Another vs. ITO, 308 I.T.R. 22, it was pleaded for quashment of the order of re-assessment on this score alone.
Citation DCIT, Circle 13(1), New Delhi (Appellant) Vs. M/s Orient Clothing Co. Pvt. Ltd., 1E/15, Jhandewalan Ext., New Delhi. (PAN/GIR No.AAACO1779K) (Respondent)
Judgement IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F': NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA No.3128/Del./2010 (Assessment Year: 2001-02) DCIT, Circle 13(1), New Delhi (Appellant) Vs. M/s Orient Clothing Co. Pvt. Ltd., 1E/15, Jhandewalan Ext., New Delhi. (PAN/GIR No.AAACO1779K) (Respondent) And C.O. No.252/Del./2010 (In I.T.A. No.3128/Del./2010) (Assessment Year: 2001-02) M/s Orient Clothing Co. Pvt. Ltd., New Delhi. (Appellant) Vs. DCIT, Circle 13(1), New Delhi. (Respondent) Assessee by: Sh. M.P. Rastogi, Adv. & Sh. P.N. Shastry, CA Revenue by: Dr. B.R.R. Kumar, Sr.DR ORDER PER U.B.S. BEDI, J.M This appeal of the department and C.O. of the assessee is directed against the order of the CIT (A)-XVIII, New Delhi dated 22.03.2010, relevant to assessment year 2001-02. 2. In the appeal of the Revenue, following grounds have been raised: "1. That on the facts and circumstances of the case and in law the CIT(A) erred in directing the Assessing Officer to allow deduction of Rs.6,33,028/- u/s 80HHC of the I.T. Act, 1961 in respect of profit on sale of DEPB. 2. That on the facts and circumstances of the case as well as in law, the CIT(A) erred in not appreciating that as the assessee was having export turnover exceeding Rs.10 crores, therefore, it was not eligible for deduction u/s 80HHC on 90% of DEPB profits within the meaning of 3rd proviso appended to section 80HHC(3) of the I.T. Act, 1961 (inserted by Taxation laws (Amendment ) Act, 2005 w.e.f. 01.04.1998). 3. That on the facts and circumstances of the case and in law, the CIT(A) has erred in not appreciating the fact that as the assessee has not incurred any cost for DEPB entitlement, therefore the total receipt on account of DEPB is the profit on the assessee." 2. In the C.O. of the assessee, following grounds have been raised: "1. That the assumption of jurisdiction u/s 147/148 of the I.T. Act, 1961 is bad in law and consequently the reassessment framed in furtherance of such invalid jurisdiction is not sustainable in law. 2. That there was no failure on the part of the assessee to disclose fully and truly all material facts necessary at the time of original assessment and consequently the assumption of jurisdiction by the Assessing Officer after four years is bad in law and the reassessment so framed in furtherance of such invalid jurisdiction is bad in law." 3. At he very outset, Ld.Counsel for the assessee submitted that since in C.O. of the assessee, the issue with regard to assumption of jurisdiction to initiate re-assessment proceedings has been raised, therefore, it would be appropriate to hear and decide the C.O. of the assessee first, rather than hearing, considering and deciding the appeal of the Revenue and to this move of the Ld.Counsel for the assessee, Ld.DR did not object. So, we take up C.O. of the assessee first. 4. The facts indicate that original assessment was completed on 29.03.2004 and it was reopened by recording reasons on 26.03.2008. As per assessee, there was no failure to disclose all material facts and since reopening was done on the basis of retrospective amendment made in law, so it cannot be said that there had been any failure to disclose all material facts. Therefore, relying upon the cases reported in CIT vs. Navnitalal Sakarlal, 125 I.T.R. 67 (Guj.), (1) Simplex Concrete Piles (India) Ltd. (2) Geo Miller And Co. Ltd. vs. DCIT & Others, 262 I.T.R. 605 (Cal.), CIT vs. SIL Investments Ltd., 339 I.T.R. 166(Del.), it was pleaded for quashment of initiation of re-assessment as Assessing Officer could not assume jurisdiction and moreover mechanical approval has been given, therefore, relying upon the judgment reported in United Electrical Co. P. Ltd. vs. CIT And Others, 258 I.T.R. 317 at 322(Del.), Chhugamal Rajpal vs. S.P. Chaliha and Others, 79 I.T.R. 603 and Duli Chand Singhania vs. ACIT, 269 I.T.R. 192, Wel Intertrade P. Ltd. and Another vs. ITO, 308 I.T.R. 22, it was pleaded for quashment of the order of re-assessment on this score alone. 5. Ld.DR submitted that sufficiency of reasons could not be challenged while relying upon Raymond Woollen Mills Co., it was pleaded that since case has been rightly reopened and CIT has approved the proposal for reopening keeping in view the reasons given by the Assessing Officer. It was pleaded for setting aside the order of the CIT(A) and restoring that of the Assessing Officer. 6. Ld.AR of the assessee in order to counter the submissions of the Ld.DR has pleaded that issue on merits is also in favour of the assessee as held by the Hon'ble Supreme Court in the case of Topman Exports. Therefore, neither addition was called for nor re-assessment was justified. 7. We have heard both the sides, considered the material on record as well as precedents relied upon by rival sides and find that assessment of the assessee for the year under consideration was reopened after 4 years from the end of the assessment year on the ground that an amendment to section 80HHC of the I.T. Act, 1961 has been made by Taxation Laws (Amendment) Act, 2005 with retrospective effect from April 1, 1998. The conditions were not there in section 80HHC at the time when assessee filed the returns or even the original assessment was made. The Hon'ble Delhi High Court in the case of CIT vs. SIL Investment Ltd. (supra) under similar facts and circumstances has opined as under: "We have heard the counsel for the Revenue and have also examined the orders passed by the authorities below. It is clear that for invoking the proviso to section 147 beyond the period of four years, there must be failure on the part of the assessee to either make a return under section 139 or in response to a notice under section 147/148 or to disclose fully and truly all material facts necessary for the assessment for that assessment year. In so far as the filing of the return is concerned, that is not in dispute and, therefore, the focus is entirely on whether the assessee had failed to disclose fully and truly all material facts necessary for the assessment. The Tribunal, on an examination of the material on record, concluded that all the relevant facts were available on record and that it could not be said that at the time when the assessee filed the return, he had failed to disclose fully and truly all material facts necessary for the assessment because the amendment which was introduced retrospectively was not there at all. The Tribunal also observed, and, in our view rightly so, that the law cannot contemplate the performance of an impossible act. It was not expected of the assessee to foresee or forecast a future amendment which was to be brought into effect retrospectively. Therefore, the Tribunal has rightly concluded that the proviso to section 147 could not be invoked merely because there was an amendment in the future which was introduced retrospectively and covered the period in question. The Tribunal has correctly appreciated the law and applied the same to the undisputed facts. We see no reason to interfere with the impugned order as no substantial question of law arises for our consideration. However, we make it clear that we have only examined the jurisdictional issue qua validity of the section 147 proceedings and have not examined the merits of the matter. The appeals are dismissed." Since the facts in the case in hand and that decided by the Hon'ble Delhi High Court are similar when issue involved is identical, therefore, following the ratio of the above noted conclusion as drawn by the jurisdictional High Court, we hold that initiation of reassessment proceedings in this case is bad in law. While accepting the C.O. of the assessee, we quash the re-assessment order passed in this case. Since re-assessment is being quashed, therefore, appeal of the Revenue needs not be adjudicated on merits, being academic, hence dismissed. 8. As a result, the C.O. of the assessee gets accepted whereas the appeal filed by the department is dismissed. Order pronounced in open court on 01.08.2012. Sd/- Sd/- (A.N. PAHUJA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 01.08. 2012 SKB Copy of the order forwarded to:- 1. Appellant 2. Respondent 3. CIT 4. CIT (A)-XVIII, New Delhi. 5. CIT (ITAT) Deputy Registrar, ITAT
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