Tuesday, October 13, 2015

[aaykarbhavan] Judgments and Information, C L I G S T R [2 Attachments]





CCI : Upholds Govt. dept.'s powers to restrict 'structural certification' rights to post-graduate engineers

CCI dismisses Graduates Association of Civil Engineers' ('informant') complaint against Local Self-government, Kerala (opposite party, 'OP') alleging anti-competitive practice in issuing Kerala Panchayat Buildings Rules, 2011 (KPBR 2011); Informant was aggrieved by Rule 115 under KPBR 2011 which specifically excluded graduate engineers from issuing 'structural stability certificate' for high rise buildings and restricted it for post graduate engineers/ government college teachers only; Informant submitted that such restriction was not present in National Building Code of India, 2005, National Disaster Management Authority (NDMA) guidelines or in Building Regulations in Mumbai, Guwahati etc., thus, sought for amending of KPBR 2011; However, CCI observes no infringement of Competition Act, absent proof to show contravention; Notes that OP is a government department/ statutory authority which has been bestowed with administrative powers to formulate and implement developmental work at grass-root level:CCI

CCI : Approves acquisition of 117 KFC restaurants, 91 Pizza Hut outlets; Observes sufficient competition

CCI approves acquisition of 117 KFC restaurants and 91 Pizza Hut outlets by 7 cos., viz., Sapphire Foods India Private Limited ('Sapphire'), Sapphire Foods Mauritius Limited ('Sapphire Mauritius'), Samara Capital Partners Fund II Limited ('Samara'), QSR Management Trust ('QMT'), Goldman Sachs Investments Holdings (Asia) Limited ('GS Asia'), IDI Emerging Markets Partners Fund III ('IDI'), CX Partners Fund 1 Limited ('CX') (collectively termed as 'Acquirers'); Notes that the proposed combination relates to business of running, maintaining and operating restaurant outlets or food service market, classifies it as quick service restaurants (QSRs) & casual dine restaurants, however leaves delineation of exact relevant market open; Observes that there are overlaps in casual dining segment in 13 cities namely Gurgaon, Mumbai, Pune, Goa, Ahmedabad, Vadodara, Surat, Bengaluru, Mysore, Vizag, Vijaywada, Hyderabad and Raipur, while in QSR segment, the only overlapping city is Delhi; However, notes that there are a number of competitors in casual dining segment like Moti Mahal, SagarRatna, Yo! China, Mainland China etc, as well as in QSR segment including Dominos Pizza, Subway, McDonalds, Goli Vada Pav, US Pizza, Nirula's etc.; Thus, holds that proposed combination is not likely to have an appreciable adverse effect on competition in India:CCI

CCI : Approves Future Retail/Bharti retail amalgamation, notes presence of organized players/e-tailers

CCI approves two step arrangement scheme between Future Retail Ltd ('FRL') and Bharti Retail Ltd ('BRL'); Two step arrangement involves i) demerger of in-store retail business of FRL to BRL and ii) demerger of support services business of BRL to FRL; Notes that FRL is a listed public co., engaged in retail business under brand names 'Big Bazaar', 'FBB', 'Food Bazaar', dealing in grocery, consumer durables etc. and BRL is a public limited unlisted co. engaged in operating retail formats by way of neighbourhood/ compact hypermarket stores under brand names 'easyday' and 'easyday market' dealing in apparel, home furnishings, appliances etc.; Observes that  retail industry is generally divided into modern brick and mortar stores ('MBMS') and traditional brick and mortar stores ('TBMS'), and in instant combination, parties fall in the category of MBMS; Observes that parties have horizontal overlaps in 26 cities/towns, however, many leading Indian organized retail business players such as, Aditya Birla group's More, TATA's Star Bazaar, D-Mart, Spencers, Reliance etc. are present in such overlapping cities / towns; Also notes that online retail stores such as Zopnow, Bigbasket, Flipkart, Snapdeal etc. are also growing at a rapid pace in this sector, thus states that "consumers have ample choice in terms of number of options available to them in all the overlapping product categories"; With regard to vertical relationships between parties, CCI notes that FRL and Future Consumer Enterprise Limited, in the past purchased food and beverages products from FieldFresh Foods Private Limited ('FFPL') which is a JV between one of Bharti Group entities and Del Monte Pacific Ltd.; However, observes that the said vertical arrangement would not raise any competition concerns in view of the insignificant presence of FFPL in its areas of operations; Thus, holds that proposed combination is not likely to raise competition concerns in any of the alternative relevant markets in India:CCI

CCI : Approves acquisition of bioscience business of Baxter International by its wholly-owned subsidiary

CCI approves proposed combination relating to acquisition of bioscience business and related assets of Baxter International Inc ('Baxter') by Baxalta Incorporated ('Baxalta'), public limited companies registered in USA and listed on New York Stock Exchange; Notes that in India, Baxter operates through two subsidiaries, namely, Baxter India Private Limited and Gambro India Private Limited and proposed combination will result in Baxter's Indian bioscience business/ related assets transferred to a newly created wholly owned subsidiary of Baxter, viz. Baxalta BioScience (India) Private Limited; Observes that as Baxalta is a wholly owned subsidiary of Baxter, and does not carry out any business activities, there is no horizontal/ vertical overlap between the business activities of Baxter and Baxalta; Thus, holds that the proposed combination/ structural change is not likely to have any adverse effect on competition in India:CCI

CCI : ​Penalizes Kerala Film Federation for limiting supply of Malayalam & Tamil movies in Kerala

CCI penalizes Kerala Film Exhibitors Federation & its two office bearers - Mr. P.V. Basheer Ahmed and Mr. M.C. Bobby (opposite parties, 'OP'), for controlling and limiting the supply of Malayalam and Tamil films in the State of Kerala; Holds that, "the said conduct falls under the presumptive rule of section 3(3) of the Act, a presumption is raised against OP that the said conduct has caused an appreciable adverse effect on the competition in the film exhibition industry in Kerala"; Relying on evidence produced before Director General, observes that every film distributor was inhibited to release its film in any theatre which is experiencing differences with OP; Notes that since informant theatre had resigned from OP's membership, OP denied release of Malayalam & Tamil movies in its theatre, holds it as anti-competitive; Refers to its ruling in Kerala Cine Exhibitors Association and KFEF & others wherein on similar allegation OP was penalised, notes that the above mentioned office bearers yet did not cease & desist from such practice, thus, imposes penalty of 10% of their income for continued anti-competitive conduct:CCI

Motilal R. Todi vs. ACIT (ITAT Mumbai)

COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS:
COUNSEL:
DATE: September 22, 2015 (Date of pronouncement)
DATE: October 13, 2015 (Date of publication)
AY: 2006-07
FILE: Click here to download the file in pdf format
CITATION:
S. 147: Entire law on whether reopening of assessment in the absence of "fresh tangible material" is permissible reviewed
(a) Thus, taking help from these judgments, relevant provisions of law, fixing obligations upon the AO for making mandatory compliances, in a step-wise manner, for valid assumption of jurisdiction for reopening and reframing of reassessment order, can be summarized as under:
(i) Availability of the new tangible material indicating escaped income of the assessee, which should have come into possession of the AO, after the passing of original assessment order, whether u/s 143(3) or 143(1),
(ii) Recording of the 'Reasons' by the AO: 'Reasons' recorded should not be based upon the change of opinion of the Assesing Officer. 'Reasons' should be such that any person of ordinary prudence should be in a position to make a belief about escapement of income on the basis of facts narrated and material referred to, in the 'Reasons' recorded. The 'Reasons' should show that, there is rational nexus and cause & effect relationship between the material sought be relied upon in the Reasons and belief sought to be formed by the AO about escapement of income.
(iii) In case reopening is sought to be done by the AO after expiry of four years from the end of the relevant assessment year and the original assessment was framed u/s 143(3) then reasons can be recorded only if there was failure on the part of the assessee in disclosure of material of facts, as has been envisaged in first proviso to section 147.
(iv) Before issuing notice u/s 148, the AO has to obtain, on the reasons recorded by him, sanction for reopening of the case, from the competent authority as envisaged u/s 151 viz. Additional Commissioner or the Commissioner of Income Tax, as the case may be. Before granting its sanction, the sanctioning authority is required to record its satisfaction based upon its independent application of mind, making out a case that as per the facts narrated and material referred to in the 'Reasons' recorded by the AO, a belief can be formed about escapement of income and case sought to be reopened is a fit case for reopening u/s 147.
(v) After obtaining the sanction, the AO is required to issue and serve notice u/s 148 upon the assessee, within the time limit as prescribed u/s 149, to enable him to assume jurisdiction to reopen the assessment.
(vi) The assessee is required to file to return of income, in response to notice u/s 148 and may request for the copy of reasons.
(vii) The AO is bound, as per law, to provide a certified and verbatim copy of Reasons to the assessee.
(viii) The assessee may file its objections before the AO, to the Reasons recorded, if any.
(ix) In pursuance to judgment of Hon'ble Supreme Court in the case of GKN Driveshafts 259 ITR 19 (SC), the AO is obliged to dispose of these objections and intimate the same to the assessee, before proceeding further with the reassessment proceedings.
(x) Thereafter, the AO is obliged under the law to issue and serve notice u/s 143(2) to enable him to make assessment of the return filed by the assessee in response to notice issued under section 148.
(xi) Framing of the re-assessment order by the AO u/s 147/143(3) after providing adequate opportunity of hearing to the assessee and considering replies and evidences of the assessee, and all other applicable provisions of the Act.
(b) Under these facts and circumstances, let us now examine settled position of law on this issue. It has been held in various judgments coming from various courts that availability of fresh tangible material in the possession of AO at the time of recording of impugned reasons is a sine qua none, before the AO can record reasons for reopening of the case. We begin with the judgment of Hon'ble Supreme Court in the case of CIT vs. Kelvinator India Ltd. 320 ITR 561 (SC), laying down that for reopening of the assessment, the AO should have in its possession 'tangible material'. The term 'tangible material' has been understood and explained by various courts subsequently. There has been unanimity of the courts on this issue that in absence of fresh material indicating escaped income, the AO cannot assume jurisdiction to reopen already concluded assessment.
(c) In the present case, it has already been discussed that admitted facts are that there was no fresh material coming into the possession of the AO, at the time of recording of the 'Reasons'. These facts have not been rebutted by Ld DR also. The case law relied upon by Ld DR in the case of Dr. Amin's Pathology, supra is not applicable on the issue being decided here. The issue that in absence of any fresh material, whether AO can proceed to record Reasons, was not before Hon'ble High Court, therefore Hon'ble High court had decided the issue of Change of opinion in that case. In the case before us, as discussed above, we are not going into that issue. In our considered opinion, at this stage, we need not go into the other aspect i.e. whether there was change of opinion or not. This issue has been aptly clarified by Hon'ble High Court in the case of Madhukar Khosla, (supra), wherein it has been held by their lordships that external facts or material constitute the driver, or the key which enables the AO to legitimately reopen the completed assessment and in absence of this objective "trigger", the AO does not possess jurisdiction to reopen the assessment. Further, most importantly, it was held by the Hon'ble High Court that it is at the next stage when the question, whether the reopening of assessment amounts to "review" or "change of opinion" arises. In other words, if there are no "new tangible materials", then there would be no "reasons to believe", and consequently reopening would be an impermissible review. Under these circumstances there would not arise any need to go the next stage to examine the next question, i.e., whether there was "review" or "change of opinion". The condition with respect to availability of "new tangible material" is step anterior to the condition of no "change of opinion" or "review".

Related Judgements

  1. ICICI Home Finance Co. Ltd vs. ACIT (Bombay High Court) 
    The belief u/s 147 that income has escaped assessment has to be the reasonable belief of the AO himself and cannot be an opinion and/or belief of some other authority. The AO cannot blindly follow the opinion of an audit authority for the purpose of arriving at a belief…
  2. Madhukar Khosla vs. ACIT (Delhi High Court) 
    S. 147: If "reasons to believe" are not based on new, "tangible materials", the reopening amounts to an impermissible review
    (ii) The foundation of the AO's jurisdiction and the raison d'etre of a reassessment notice are the "reasons to believe". Now this should have a relation or a…
  3. Telco Dadajee Dhackjee Ltd vs. DCIT (ITAT Mumbai Third Member) 
    S. 143(1) assessment cannot be reopened u/s 147 in absence of "new material" The assessee filed a ROI in which it claimed deduction for non-compete fees and depreciation on leased premises which was accepted by the AO vide Intimation u/s…Read more ›
  4. Gujarat Power Corporation Ltd vs. ACIT (Gujarat High Court) 
    The assessee's argument that as the Full Bench judgement in Kelivinator 256 ITR 1 (Del) (FB) was approved by the Supreme Court 320 ITR 561, the observations made by the Full Bench must be regarded as the ratio of the Supreme Court is not correct because the question before…
  5. HV Transmissions Ltd vs. ITO (ITAT Mumbai) 
    Though the assessment was originally u/s 143(1), it is clearly evident from the recorded reasons that there was no new material coming to the possession of the AO on the basis of which the s. 143(1) assessment was reopened. In Telco Dadaji Dhackjee Ltd, the Third Member held,…

S. 147: Entire law on whether reopening of assessment in the absence of "fresh tangible material" is permissible reviewed
Availability of fresh tangible material in the possession of AO at the time of recording of impugned reasons is a sine qua none, before the AO can record reasons for reopening of the case. We begin with the judgment of Hon'ble Supreme Court in the case of CIT vs. Kelvinator India Ltd. 320 ITR 561 (SC), laying down that for reopening of the assessment, the AO should have in its possession 'tangible material'. The term 'tangible material' has been understood and explained by various courts subsequently. There has been unanimity of the courts on this issue that in absence of fresh material indicating escaped income, the AO cannot assume jurisdiction to reopen already concluded assessment.

Arun Ganesh Jogdeo vs. UOI (Bombay High Court)

COURT:
CORAM: ,
SECTION(S): ,
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: August 28, 2015 (Date of pronouncement)
DATE: October 13, 2015 (Date of publication)
AY: -
FILE: Click here to download the file in pdf format
CITATION:
Dept directed to follow directions of Delhi High Court in 352 ITR 273 and to be vigilant and ensure that such mistakes do not occur. Dept directed to set up a self-auditing vigilance cell to redress taxpayers' grievances
The Petitioner filed a PIL to bring out the irregularities committed by the Income Tax Department. It was submitted that the Delhi High Court has also passed the strictures against the Income Tax Department in a similar Petition, which was filed in the Delhi High Court and which was disposed of by the order dated 14th March, 2013 (Court On Its Own Motion v. Commissioner of Income-tax 352 ITR 273). The Petitioner has invited attention to the said Judgment and Order passed by the Delhi High Court and took the Court through the various alleged mistakes committed by the Income Tax Department in issuing incorrect notices under Sections 244 and 245 of the Income Tax Act, thereby seeking recovery from number of income tax assessees. He brought to the Court's notice the immense hardships caused to all these income tax assessees as a result of the alleged mistakes committed by the Income Tax Department. It is submitted that the initial returns, which were taken by the Income Tax Department, were due to a technical error, which is rectified. It was alleged that there was a bug in the computer system. According to the Petitioner, this has been done deliberately. In reply, the department submitted that the directions given by the Delhi High Court have been followed in letter and spirit. HELD by the High Court:
The Income Tax authorities shall follow the directions given by the Delhi High Court in case of Court On Its Own Motion v. Commissioner of Income-tax 352 ITR 273 in other cities, including the city of Mumbai, in Maharashtra State. We hope and trust that the Income Tax Department will be more vigilant and ensure that such mistakes will not occur in future. We also direct the Income Tax Department to form a Vigilance Cell to ensure that there is a monitoring authority, which would monitor various policy decisions which are taken and a self auditing mechanism is required to be formulated to ensure that the income tax assessees are not made to run from pillar to post for the purpose of redressal of their grievances.

Related Judgements

  1. Charu Home Products Pvt. Ltd vs. CIT (Delhi High Court) 
    This writ petition is directed against the order dated 06.08.2014 passed by the Additional Commissioner of Income Tax with the approval of the CIT, Delhi-I, New Delhi. By virtue of the said order dated 06.08.2014 the stay application filed by…Read more ›
  2. Emco Ltd vs. UOI (Bombay High Court) 
    Undue delay in passing order causes prejudice & results in loss of confidence in the judicial body. Such a delayed order has to be set aside
    In view of the above, it is very clear that the authorities under the Act are obliged to dispose of proceedings before them as…
  3. Hinduja Global Solutions Ltd vs. UOI (Bombay High Court) 
    The Tribunal should not completely disregard its earlier order without some reason. This is the minimum expected of any quasi judicial / judicial authority. If the Tribunal has failed to perform it's basic judicial functions in such arbitrary manner, the approach of the Tribunal must be corrected, so as…
  4. The Chamber of Tax Consultants vs. UOI (Bombay High Court) 
    Non-Extension Of due date for filing ROI will cause "substantial hardship". CBDT must look into practical difficulties & take "just and proper" decision before 30.09.2014
    In view of the fact that the Madras High Court has already directed the CBDT to examine the representation of the assessees…
  5. R. W. Promotions P. Ltd vs. ITAT (Bombay High Court) 
    Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the…

Dept directed to follow directions of Delhi High Court in 352 ITR 273 and to be vigilant and ensure that such mistakes do not occur. Dept directed to set up a self-auditing vigilance cell to redress taxpayers' grievances
The Income Tax authorities shall follow the directions given by the Delhi High Court in case of Court On Its Own Motion v. Commissioner of Income-tax 352 ITR 273 in other cities, including the city of Mumbai, in Maharashtra State. We hope and trust that the Income Tax Department will be more vigilant and ensure that such mistakes will not occur in future. We also direct the Income Tax Department to form a Vigilance Cell to ensure that there is a monitoring authority, which would monitor various policy decisions which are taken and a self auditing mechanism is required to be formulated to ensure that the income tax assessees are not made to run from pillar to post for the purpose of redressal of their grievances

CLI
www.cliofindia.com
info@cliofindia.com

GOODS AND SERVICE TAX REPORTS (GSTR) HIGHLIGHTS

ISSUE DATED 12.10.2015

Volume 34 Part 7


ENGLISH CASES
STATUTES
JOURNAL
NEWS-BRIEFS
AAR


SUPREME COURT


F Vaseline Intensive Care Heel Guard, medicament having curing properties and not skin care preparation : CCE v. Hindustan Lever Ltd. p. 497
F No liability to pay duty if imported goods are pilfered after being unloaded or lost or destroyed at anytime before clearance for home consumption : Circular stating that import duty should be based only on invoice price, contrary to law : Mangalore Ref. and Petrochemicals Ltd. v. Commissioner of Customs p. 519
F Cash discount to be taken into account in arriving at price of manufactured goods even under amended section 4 : Purolator India Ltd. v. CCE p. 530




HIGH COURT


F Section 11AB apply only to clearances effected after September 28, 1996, irrespective of date of passing of adjudication order : CCE v. Dev Ashish (Bom) p. 513




CESTAT ORDERS


F Adjudicating authority not correct in disallowing the cross-examination of persons listed except in cases covered by section 9D of the 1994 Act : Wellsuit Glass and Ceramic P. Ltd. v. CCE and Service Tax (Trib.-Ahd) p. 550
F Adjudicating authority relying on one gas consumption study in respect of different varieties of frit manufactured by assessee directed to conduct few more studies : Wellsuit Glass and Ceramic P. Ltd. v. CCE and Service Tax (Trib.-Ahd) p. 550
F Federation of Indian Chambers of Commerce and Industry and Electronic and Computer Software Export Promotion Council not club or association and services provided to its members and consideration received therefor not exigible to service tax : Federation of Indian Chambers of Commerce and Industry v. CST (Trib.-Delhi) p. 562
F Show-cause notice omitting to allege assessee's liability to tax on the basis of the amended provisions, not a case of mere mention of wrong provision of law but one of substantial failure of natural justice resulting in transgression of due process : Federation of Indian Chambers of Commerce and Industry v. CST (Trib.-Delhi) p. 562
F Tribunal bound to follow view of High : Federation of Indian Chambers of Commerce and Industry v. CST (Trib.-Delhi) p. 562
F Notice to must indicate basis on which liability alleged for noticee to contest assertion and submit its defence : Federation of Indian Chambers of Commerce and Industry v. CST (Trib.-Delhi) p. 562
COMPANY LAW INSTITUTE OF INDIA PVT. LTD.
No. 2, Vaithyaram Street,
T.Nagar, Chennai - 600017.
Phone: (044) 24350752 - 55


Tackling black money not SEBI's job: UK Sinha; M&M tops CSR list

Tackling black money not SEBI's job: UK Sinha; M&M tops CSR list


Lack of locus/personal interest doesn't render CCI powerless to examine complaint

COMPAT sets aside CCI's majority order that rejected investigation into 'cartelization' complaint against Maharashtra State Power Generation ('MSPG') & its coal suppliers ('respondents'); Complaint before CCI was filed by an Advocate alleging price increase in electricity charges due to cartelization among respondents and MSPG's rejection of the lowest bidder in coal supply tender; COMPAT rejects respondent's challenge to Advocate's locus standi under Competition Act ('the Act'), alleging that he could not have filed the complaint either in capacity of consumer of MSPG nor by espousing the cause of rejected lowest bidder; Observes that Sec 19(1) of the Act empowers CCI to inquire into allegations of contravention of abuse of dominant position and anti-competitive practice suo moto or on receipt of any information from "any person"; Holds that, "Parliament had neither prescribed any qualification for the person who wanted to file information nor prescribed any condition which must be fulfilled before information could be filed", thus CCI had no power to reject Advocate's complaint; Also observes that SC (in appeal filed by rejected lowest bidder on ground of rejection & cartel formation) had directed MSPG to accept lowest bid and had also observed presence of cartel, holds CCI overlooked unequivocal finding of SC and "had not apprised the fact that it was judicially subordinate to the SC and is bound by the verdict of the highest court in the country" :COMPAT

The ruling was delivered by Justice G.S. Singhvi
Advocates Amit Khare and Rajul Srivastava argued on behalf of Appellant while Mr. Kamal Sultanpuri and Advocates Matrugupta Mishra, Tushar Nagar, Chetan S. Dhore, Amod R. Bhole, Sheikh Sahabuddin represented respondents.

Upholds Trial court order for converting 'summons-case' into 'warrant-case' for violating SEBI (CIS) Regulations

HC upholds Trial Court's order whereby a summons case was converted to warrant case, filed by SEBI against petitioner co. for violation of Collective Investment Scheme Regulations ('CIS Regulations'); Notes that on SEBI's application to convert case into warrant case, Trial Court had converted it after observing quantum of punishment which was 10 years with fine which could extend to Rs. 25 crores or with both; Rejects petitioner co's (accused) contention that complaint was filed in 2003, however application to convert the case was made in 2011, such 8 years of delay was unsustainable; Holds that, "The delay of eight years in realizing the mistake would not make the case a summons case.. Any mistake of law cannot be permitted to be perpetuated and no sooner the same is discerned, remedial measures ought to be taken"; Further rejects contention that prayer in SEBI's complaint explicitly sought for issuance of summons, holds that, "merely because the word 'summons' was used in the prayer of the complainant, the Court ought not to have treated it as a summons case and the same ground could not be taken by the petitioner for challenging trail court's order" :Delhi HC

The ruling was delivered by Justice Ashutosh Kumar
Advocate Udit Mehra argued on behalf of Petitioner while  Advocates Sanjay Mann and R.K. Pillai represented respondents.


__._,_.___
View attachments on the web
Posted by: Dipak Shah <djshah1944@yahoo.com>


receive alert on mobile, subscribe to SMS Channel named "aaykarbhavan"
[COST FREE]
SEND "on aaykarbhavan" TO 9870807070 FROM YOUR MOBILE.

To receive the mails from this group send message to aaykarbhavan-subscribe@yahoogroups.com




__,_._,___
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)