Which ruling operates
iti
(Querist) 06 January 2013
This query is : Resolved
Till April,2012 Haryana Acrylic case was used to decide whether reasons must be issued with notice u/s 148 within statuatory period.Later on with AG Holding case, it was stated that it was not required to give reasons within that period.
So in case of a notice issued without reasons before ruling of subsequent case came into existence ,which ruling will apply if objected after the latter ruling?
Raj Kumar Makkad
(Expert) 06 January 2013
Delhi High Court (High Court) in the
case of A.G.Holdings Pvt Ltd. (the taxpayer) held that the time limit prescribed under Section 149 of the Income-tax Act, 1961 (the Act) applies only to the issue of notice under Section 148 of the Act and does
not apply to reasons recorded for the reopening of assessment.
Subsequent ruling shall be applied in case notice had been sent prior to the latest ruling.
iti
(Querist) 06 January 2013
DCIT vs. Simplex Concrete Piles (India) Ltd (Supreme Court) (13.7 KiB, 534 DLs)
S. 147: Reversal of law by Supreme Court does not justify reopening
When the assessment order was passed, the law as declared by the jurisdictional High Court was that the civil construction work carried out by the assessee would be entitled to the benefit of s. 80HH. This was reversed in CIT vs. N.C. Budharaja 204 ITR 412 (SC). The subsequent reversal of the legal position by the judgment of the Supreme Court does not authorise the Department to reopen the assessment, which stood closed on the basis of the law, as it stood at the relevant time.
iti
(Querist) 06 January 2013
Question whether Low Tax Effect Circular can apply to pending appeals referred to Full Bench
The department filed an appeal in the High Court in 2008, the tax effect of which was more than Rs. 4 lakhs but less than Rs. 10 lakhs. The assessee claimed, relying on Sureshchandra Durgaprasad Khatod (HUF) & Madhukar K. Inamdar 318 ITR 149 (Bom), that as Instruction No. 3 of 2011 dated 9.2.2011 issued by the CBDT applied to pending appeals and as the tax effect was lower than the sum of Rs. 10 lakhs prescribed therein, the appeal was not maintainable. The department argued that the maintainability of the appeal had to be decided on the basis of the CBDT Instruction dated 15.5.2008 which was in force at the time of filing the appeal. HELD by the High Court:
Though in Sureshchandra Durgaprasad Khatod (HUF) (and other judgements), it has been held that Instruction No. 3 of 2011 dated 9.2.2011 shall apply to pending appeals paragraph 11 of the Instruction itself provides that “This instructions will apply to appeals filed on or after 9th February 2011. However, the cases where appeals have been filed before 9th February 2011 will be governed by the instructions on this subject, operative at the time when such appeal was filed”. The issue requires consideration by a larger Bench. A number of decisions of various High Courts on the subject (Kodananad Tea Estates 275 ITR 244, Varinder Construction Co 331 ITR 449 (P&H)(FB), John L. Chackola 337 ITR 385(Ker)) were not brought to the notice of this Court in the case of Sureshchandra Durgaprasad Khatod (HUF). We, independently also have serious doubts if the instructions of 2011 can be applied to cases filed earlier. Also, the said Instruction cannot be interpreted on the basis of the litigation policy. Also, prospective application of the instructions would not lead to any absurdity. If by applying the instructions prospectively, certain appeals would be decided on merits, because the appeals were filed prior to issuance of the new instructions, the same cannot be stated to be absurd. A counter situation also may arise if such instructions are applied with retrospective effect to all pending appeals whereby an appeal would be dismissed without examination on merits simply because the same survived for a longer period than the cognate appeals. Sureshchandra Durgaprasad Khatod (HUF) accordingly requires reconsideration.
Raj Kumar Makkad
(Expert) 06 January 2013
You are very well aware of legal position then better to post this is forum section so that this may become a discussion thread otherwise reply is already with you.
iti
(Querist) 06 January 2013
:) no i am surfing side by side and bringing for discussion.
Raj Kumar Makkad
(Expert) 07 January 2013
Then better to move towards Forum section.
R.K Nanda
(Expert) 07 January 2013
go to forum of LCI.
iti
(Querist) 07 January 2013
rather you should clarify the apparent contradiction being an expert!
Raj Kumar Makkad
(Expert) 07 January 2013
Being experts, this is not our task to find out contradictions rather it is the duty of your lawyer. We are not paid here. We offer volunteer service for the masses and do provide just a direction and not a conclusive result of the case. One is not bound to follow our advice and even we do not claim our advice as full and final so better to opt other options.
iti
(Querist) 07 January 2013
your LAWYER !better not to talk about integrity of lawyers in general.They belong to money not the party.Anyway this platform of LC1 has presented a chance to meet certain efficient and honest lawyers ,so that is why i still believe in existence of lawyers amidst liars.
You yourself are a helping hand to advice seekers but why to over react,if you ca not respond further better stop posting afterwards, one who knows would answer.
Raj Kumar Makkad
(Expert) 07 January 2013
I may have limitations of my knowledge but have no limit of your accusations against the same lawyers from whom you want to seek help/ I do stop answering but let others to respond against your attitude of abusing, accusing and defaming lawyers and still seeking their help.
iti
(Querist) 07 January 2013
DEfaming ?are you trying to act hypocrite?What is the limit of corruption running in india?which field is protected from it?which profession is saved come on you tell me.As far as this field is concerned i am not an outsider, i belong to your field of law ,a law graduate myself and even if i had not i have courage to call a wrong a wrong .And i believe in exception that is why i thanked some worthy people working in this field .,they are lawyers ,true lawyers,.
