Plz ADD more points & email to moreassociate@gmail.com
263 orders not justified: Arguments against 263 order
1. When section 56(2)(vii)(b) has been made effective w.e.f. 01/04/2012, can CIT question the issue and ask the AO to treat premium as bogus and consider as income of Company. When there is a settled law by Lawmakers, can CIT try to apply it retrospectively?
2. Section 68 has also been amended w.e.f. 01/04/2012. It implies that Lawmakers did not intend to unsettle past transactions. Hence the principles laid down in various judicial pronouncements viz. Lovely Exports, Steller Investments, etc. are in force and good law up to assessment years 2012-13. The CIT has no authority to overrule the provisions enunciated and enacted by the Parliament.
There is a direct decision on this issue of Share Premium – justification in the first year and also applicanility of sec. 56(2)(vii)(b) - Mumbai tribunal in the case of Infra Ltd. – ITAT Mumbai in ITA No. 7762/Mum/2012.
3. Proceedings before Income tax Authorities are judicial proceedings as per section 136 of the Income Tax Act, 1961. As per the law of Judicial Discipline, the lower authorities in hierarchy is bound by the decision of higher authorities i.e. CIT is bound to be guided by the pronouncements of ITAT , Jurisdictional High Court and Supreme Court. Does such defiance of judgement of ITAT, High Court and Supreme Court does not call for Contempt of Court Proceedings under the Contempt of Court Act, 1971 ?
On judicial discipline and nature of binding judgment as well as contempt of court – please read the order of Vishakhapattnam Tribunal in the case of Cargo Handling Private Workers Pool vs. DCIT, Central Circle in ITA Nos. 152 to 156/Viz/2011 (Please see para 7 specifically)
4. Case of Sumati Dayal has no relevance with the present issue. The case of Sumati Dayal was relating to basically income by way of winnings from lotteries, (which was exempt at that time). An income do not have any other claimant and recipient enjoys it fully. Whereas in case of share capital, the shareholders have full control over the company by way of their holding and it is not available to the Company freely. The shareholders can force the company to buy-back its own shares in case company is not utilizing its resources properly and hence can take their money back. It will be a great prejudice to the principles of law, if share capital and an income from lottery winnings are equated.
5. Further, regarding the application of human probability, can it be presumed that all the assessing officers under various CsIT charges have done orders which are erroneous and prejudicial to the interest of revenue. The AOs are not amateurs, but seasoned and responsible officers of Income Tax Department. If such officers are doing orders which are erroneous and prejudicial to the interest of revenue, two presumptions can be deduced :
a. One that all the orders passed by such officers whether u/s 148 or otherwise are erroneous, whether CIT has examined all orders and selected only few cases where it is erroneous. What action department has taken against erring officials.
b. The orders are not erroneous and the action of CsIT is erroneous and hence prejudicial to the interest of revenue as they have tried to destabilize the smooth operation of law.
However, In my opinion Para 5 should not be referred to in reply to 263. There cannot be any query from the CIT as to what action they have taken against AO’s passing orders which are prejudicial to revenue.
6. The CIT has given instance of capital market. But she has ignored the vital trends of capital market. In recent times, only those corporate are favoured by investors where capital base is low and the market price / expected market price is higher. Low-quoted stocks are called penny stocks and have become untouchable for the investors. Notable example are Colgate and L&T.
7. Further the Income Tax Dept. cannot dictate whether investors should invest in companies at premium or without premium. Does IT Dept. gives any guarantee or security to the investment made at face value or at lower premium.
8. Child is the father of man. New companies cannot ignore such market trends and so the trend was to issue shares at high premium. However, this has been stopped by the Statute only w.e.f. 01.04.2012 like various other draconian regulations.
9. Further it is not so that the share premium is the property of the Company. The ownership of share premium also rests with the shareholders. The shareholders can compel the company to capitalize the premium and issue bonus shares, buyback the shares at premium.
10. Further the CIT have written ‘unknown private limited companies’. Can anyone say that Infosys was very much known in its initial 2-3 years. Had it not got capital at its initial life, could it become what it is today. It is a matter of fact that unknown company of one-time becomes blue-chip, if it survives the competitive blows of market and draconian attitudes of statutory authorities. Various known companies, started with much fanfare die-down in the course of time. Hence it has no relevance at all whether the company is unknown, little known or vary popular.
11. The CIT has stated only half-quote of Hon’ble Justice B.N.Kirpal . It has also been stated by Hon’ble Justice B.N.Kirpal “Where the preponderance of evidence indicates absence of culpability and complexity of the assessee, it should not be harassed by the revenue’s insistence that it should prove the negative”. Further the assessments have been done keeping in view all the principles enunciated in the said decision, does not it tentamount to contempt of court.
12. When there is decision of jurisdictional High Court in the matter of Roseberry Mercantiles, what is the relevance of decision of Delhi High Court in the matter of Nova Promoters and Finlease Pvt.Ltd.
13. Decision of jurisdictional High Court is binding on department and hence the proceedings initiated by CIT are illegal, unconstitutional and beyond his/her jurisdiction.
14. CIT has stated that the case of Lovely Exports has relevance only when AO are giving effect to 263 orders. Here it must be noted that there is also decision of Supreme Court in the matter of Steller Investment Ltd., in which case action of CIT u/s 263 was nullified by ITAT, ITAT order confirmed by Delhi High Court and reconfirmed by SC.
15. The Concern of Income tax Authorities is confined to the fact, whether the receipt of money is income or not. If there is proper evidence, (which was submitted before the AO), the AO cannot deduce that it can be assessed as income and rightfully has done so. The AO has done the assessment with a neutral view, whereas the CIT has started revisionary proceedings with a biased attitude.
16. Regarding background, can CIT defame all the Companies to be companies of entry operators. Whether defamation and abuse is permissible under the Income Tax Act.
17. Utilizing his/her knowledge only to make one’s own order, even by going beyond one’s jurisdiction and hiding information from the authorities, to whom such information ought to have been passed, cannot be permitted where law prevails.
18. Further the Dept was very efficient in service of notices, notices issued on 18.03.2013 were served on 19.03.2013, show cause notices issued on 25.03.2013 were served on 26.03.2013, even where the addresses have been changed, why orders which were to be made compulsorily within 31.03.2013, not served with the same efficiency.
19. There are many errors in the notices as well as orders. Does it mean that the CIT has delegated his/ her authorities to subordinates and only signed the orders/notices? In some cases the orders have been issued without signature of CIT. Is delegation of such actions permissible u/s 263.
20. The Tribunal in the case of Plastic Concern v. Asstt. CIT [1998] 61 TTJ 87 (Cal.) held that mere possibility of gathering more material to prove the claim of the assessee wrong would not make the concluded assessment erroneous as long as the Assessing Officer had acted judiciously and conducted enquiries in the course of original assessment.
21.Somehow similar facts in the case of M/s Turakhia Ferromet Pvt. Ltd.,- ITA Nos.4148 to 4152/Mum/2013. Please see para 6 to 10.
22.Calcutta High Court in the case of Dataware Private Ltd. – This case is also on share capital where the Court has held that unless the AO rejected the return of shareholder the AO of the assessee company is bound to accept the share application money.
Plz ADD more points & email to moreassociate@gmail.com so that it can be more useful
__._,_.___
No comments:
Post a Comment