The Deputy Commissioner of Income Tax, Central Circle, Panaji , Panaji V. Smt. Vanda Afonso, Goa

At this stage, the learned Senior Counsel for the Petition referred to a decision of the Hon’ble Supreme Court in the case of Kapurchand Vs. Tax Recovery Officer AIR 1969 SC 682, where the contextual interpretation was preferred to the statutory definition of “person” in Section 2 of the Income Tax Act. Therefore, by reason of failure to deduct or withhold tax, the Petitioner is liable to be penalized under Section 271C but his liability to pay the tax arises only when the payee fails to pay the tax. Section 201 creates the legal fiction that deems the person who has failed to deduct tax under Section 194 and the person who has deducted tax but failed to pay to the credit of the Central Government as required under Section 200 alone to be AID. That these are the only cases in which the legal fiction is applicable is clarified by the Explanation to Section 191.

The Constitution regulates the manner of governance in substantially minute detail. It is the fountainhead distributing power, for such governance. No appointment of the Chairperson and Members of the Appellate Tribunal and President and Members of the Tribunal shall be invalidated merely by reason of any vacancy or any defect in the constitution of the Selection Committee.

The High Court has observed that clause referring to the category of persons having special knowledge of and experience in matters relating to labour, for not less than 15 years is vague and should be suitably amended so as to spell out with certainty the qualification which a person to be appointed under clause should possess. The view expressed by a bench of 5 Hon’ble Judges of this Court in the above case, was in respect of a controversy quite similar to the one in hand. In the instant judgment, the constitutional vires of the Administrative Tribunals Act, 1985 was under challenge. The above Act was framed under Article 323A of the Constitution.

In Hinds case it was acknowledged, that Parliament was not precluded from establishing a court under a new name, to exercise the jurisdiction that was being exercised by members of the higher judiciary, at the time when the constitution came into force. But when that was done, it was critical to ensure, that the persons appointed to be members of such a court/tribunal, should be appointed in the same manner, and should be entitled to the same security of tenure, as the holder of the judicial office, at the time when the constitution came into force. Before we proceed with the matter further, it is necessary to keep in mind the composition of the adjudicatory authorities which have historically dealt with the matters arising out of tax laws. First, we shall deal with the composition of the Appellate Tribunals. All Appellate Tribunals which are relevant for the present controversy were essentially comprised of Judicial Members, besides Accountant or Technical Members.

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Any express provision in the constitution for the appointment or security of tenure of judges of that court will apply to all individual judges subsequently appointed to exercise an analogous jurisdiction, whatever other name may be given to the ‘court’ in which they sit (Attorney-General for Ontario v. Attorney-General for Canada) A.C. All Constitutions on the Westminster model deal under separate Chapter headings with the legislature, the executive and the judicature. The Chapter dealing with the judicature invariably contains provisions dealing with the method of appointment and security of tenure of the members of the judiciary which are designed to assure to them a degree of independence from the other two branches of government.

• We accordingly direct that these matters be delinked and listed separately for hearing.” 63 A perusal of the judgment rendered in Kesavananda Bharati case reveals, that “separation of powers” creates a system of checks and balances, by reasons of which, powers are so distributed, that none of the three organs transgresses into the domain of the other. The concept ensures the dignity of the individual.
• If the power or jurisdiction is exercised in a judicial manner, then it is imperative to proceed to the third and final step.
• The assessees were adopting the completed contract method regularly and it was also accepted by the department during the previous assessments.
• Both are areas which would have to be gone into at the threshold itself i.e. when the rule is issued and, hence, it is not open to the Respondent to urge at this belated stage that this Hon’ble court should not exercise its discretion to quash an illegal assumption of jurisdiction.
• For the above reason, Section 5 of the NTT Act is in clear breach of the law declared by this Court.

A) On amalgamation there is an extinguishment of rights and, therefore, there is a transfer. B) The amalgamation scheme sanctioned by the court would be an instrument within the meaning of Section 2 of the Bombay Stamp Act, 1958, and liable for stamp duty. A document creating or transferring a right is an instrument. Shares of a single type issued by a State Financial Corporation providing for minimum and maximum dividend cannot be termed as ‘preference shares’.

The decisions relied upon by the Respondents with regard to “controlling interest” are either cases where there was a transfer of a managing agency. The learned Senior Counsel for the Petitioner relied on CIT Vs. Ram Narain Kapur & Co. Vs. CIT 41 ITR 534, which was recognized by the Companies Act as a separate right by itself independent of the shares in such company, or where the right of shareholders of a company to manage its affairs was taken over by the Government, which case emphasize that “controlling interest” is an incidence e of shareholding and can only be separated therefrom by express legislation. In this behalf, the learned Senior Counsel for the Petitioner placed his reliance on the decision in the case of CIT Vs. National Insurance Co. Vs. C.I.T. 80 ITR 575 and CIT Vs. New India Assurance Co.Ltd. None of these decisions support the proposition that the controlling interest in a company is an asset independent of the shares.

Madras Bar Association Vs. Union of India and another [September 25, 2014]2014 Latest Caselaw 621 SC

To understand the tenor of the issue which was the subject matter before this Court, it is relevant to extract some of the provisions of the Companies Act, 1956 as amended by the Companies Act, 2002, relating to the constitution of the National Company Law Tribunal and the National Company Law Appellate Tribunal). As already stated this article envisaged exclusion of the jurisdiction of all courts, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes or complaints referred to in clause . Article 32 was described by Dr Ambedkar in course of the debate in the Constituent Assembly as the ‘soul’ and ‘heart’ of the Constitution and it is in recognition of this position that though Article 323-A authorised exclusion of jurisdiction under Article 32 and the original Act had in Section 28 provided for it, by amendment jurisdiction under Article 32 has been left untouched. The Act thus saves jurisdiction of this Court both under Article 32 in respect of original proceedings as also under Article 136 for entertaining appeals against decisions of the Tribunal on grant of special leave.

It is for the courts to decide whether restrictions are reasonable and whether they are in the interest of the particular subject. Apart from other basic dissimilarities, Article 31-C takes away the power of judicial review to an extent which destroys even the semblance of a comparison between its provisions and those of clauses to of Article 19. In view of the aforementioned submissions, it was the vehement contention of the learned counsel for the petitioners, that Article 323B should be struck down.

As early as 1969, a Committee was set up by the Central Government under the chairmanship of Mr Justice Shah of this Court to make recommendations suggesting ways and means for effective, expeditious and satisfactory disposal of matters relating to service disputes of government servants as it was found that a sizeable portion of pending litigations related to this category. The Committee recommended the setting up of an independent Tribunal to handle the pending cases before this Court and the High Courts. Mr Seervai submitted that this Court must avoid such construction of Article 124 which would enable the President to appoint Chief Justice of India without consultation with any judicial functionaries. The expression ‘may deem necessary’ qualifies the number of Judges of the Supreme Court and High Courts to be consulted.

M/s. Bilahari Investments (P) Ltd. v/s The Commissioner of Income Tax, Central II, Chennai

Post S.P. Sampath Kumar case , divergent views came to be expressed in a number of judgments rendered by this Court. Take for example a case where the executive, which is in-charge of administration, acts to the prejudice of a citizen. And a question arises, as to what are the powers of the executive, and whether the executive had acted within the scope of its powers. Such a question obviously, cannot be left to the executive to decide, for two very good reasons. And secondly, because the legal protection afforded to citizens by the Constitution or the laws would become illusory, if it were left to the executive to determine the legality, of its own actions. Furthermore, Section 55 of the Constitution (Forty-second Amendment), Act was held to be beyond the amending power of the Parliament.

Supervisory jurisdiction over the proceedings of inferior courts (viz. of the kind which owes its origin to the prerogative writs of certiorari, mandamus and prohibition). To examine the exemptions allowed by tax laws, and evaluate scope of their reduction; and to suggest methods for better tax assessment, and improvements in tax administration. We also find that the Petitioner is fully safeguarded under Section 195, 195 and Section 197 of Income Tax Act. As held by the Hon’ble Supreme Court in Transmission Corporation case, 239 ITR 587 , Petitioner’s rights are adequately safeguarded under Section 195, 195 and 197 of the Income Tax Act, and the only thing required to be done is to file an application before the Assessing Officer under those provisions. Essar will have certain liquidity rights including, between the third and fourth anniversaries of completion, and subject to regulatory requirements, an option to sell its 33% shareholding in Vodafone Essar to Vodafone for US$5 billion or an option to sell between US$1 billion and US$5 billion worth of Vodafone Essar shares to Vodafone at an independently appraised fair market trading value.

In the years that have passed since the Report of the Malimath Committee was delivered, the pendency in the High Courts has substantially increased and we are of the view that its recommendation is not suited to our present context. That the various Tribunals have not performed up to expectations is a self-evident and widely acknowledged truth. However, to draw an inference that their unsatisfactory performance points to their being founded on a fundamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constitutional scheme permits the setting up of such Tribunals.

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It is, therefore apparent, that right from the beginning, well before the promulgation of the Constitution, the core https://1investing.in/ appellate functions, for adjudication of tax related disputes, were vested with the jurisdictional High Courts. The second appellate remedy has always been before a quasi-judicial appellate authority, styled as an Appellate Tribunal. Across the board, under all the enactments which are relevant for the present controversy, proceedings before the Appellate Tribunal have been legislatively described as “judicial proceedings”. It is, therefore apparent, that right from the beginning, the clear legislative understanding was, that from the stage of the proceedings before the Appellate Tribunal, the proceedings were of the nature of “judicial proceedings”.

As none of these conditions have been fulfilled it is clear that Respondent NO.2 is purporting to act without jurisdiction and hence an appropriate writ ought to be issued. Even after the 2008 amendments to Sections 191 and 201 of the Act, the show cause notice is without jurisdiction as conditions to continue to be applicable and the same have not been fulfilled. Xviii) Thus, both under the pre-amended provisions of sections 201 and 199 and post the amendment made in 2002 or 2003, the Petitioner is liable to be treated as assessee in default under Section 201.

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.

It may, as in the case of the Constitution of Ceylon, contain nothing more. The Central Excise and Salt Act, was enacted to consolidate and amend, the law related to central duties on excise, and goods manufactured and produced in India, and to salt. Under the said enactment, the power to assess the duty, was vested with the Assistant Collectors of Central Excise, and Collectors of Central Excise. An executive-appellate remedy was provided for under Section 35 before the Commissioner .

Even as of now the time for filing a return has not expired and hence it could not be stated that the payee has failed to pay such tax directly as contemplated in section 191 of the Act so as to vest Respondent No.2 with jurisdiction to take proceedings against the Petitioner under section 201 of the Act. It is submitted that proceedings under section 201 of the Act ought to be taken only after the assessee has failed to pay the tax. This is because the primary obligation to pay tax is that of the recipient of the income. In the absence of any such mechanism an interpretation should be placed on sections 191 and 201 of the Act which make the provisions workable and it is only the interpretation canvassed by the Petitioner that would have the desired effect.

The debates and deliberations spread over almost two decades for exploring ways and means for relieving the High Courts of the load of backlog of cases and for assuring quick settlement of service disputes in the interest of the public servants as also the country cannot be lost sight of while considering this aspect. It has not been disputed before us – and perhaps could not have been – that the Tribunal under the scheme of the Act would take over a part of the existing backlog and a share of the normal load of the High Courts. The Tribunal has been contemplated as a substitute and not as supplemental to the High Court in the scheme of administration of justice. To provide the Tribunal as an additional forum from where parties could go to the High Court would certainly have been a retrograde step considering the situation and circumstances to meet which the innovation has been brought about. Thus barring of the jurisdiction of the High Court can indeed not be a valid ground of attack.

This could be done to chastise him, to accept a the main types of business risk he would not voluntarily accede to. We are, therefore of the considered view, that Section 5 of the NTT Act is not sustainable in law, as it does not ensure that the alternative adjudicatory authority, is totally insulated from all forms of interference, pressure or influence from co-ordinate branches of Government. There is therefore no alternative, but to hold that sub-sections , , and of Section 5 of the NTT Act are unconstitutional. That is not to say that such matters are not justiciable. While examining the above contention, we will indeed be dealing with Section 13 of the NTT Act, which has already been extracted while recording the submissions advanced on behalf of the petitioners, with reference to the fourth contention.