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Society, 2 SCC 412, held that Articles 323-A and 323-B are enabling provisions which enable the setting up of tribunals contemplated therein; and that the said articles, however, cannot be interpreted to mean that they prohibited the legislature from establishing tribunals not covered by those articles, as long as there is legislative competence under the appropriate entry in the Seventh Schedule. The assertion at the hands of the Union of India was, that some of the directions contained in the judgment rendered by the Madras High Court, reframed and recast Parts 1B and 1C introduced by the Amendment Act and amounted to converting “judicial review” into judicial legislation. It was, however noticed, that the Union of India having agreed to rectify several of the defects pointed out by the High Court, the appeal of the Union of India was restricted to the findings of the High Court relating to Sections 10-FD, , and 10-FX.
Article 234 which deals with recruitment of persons other than District Judges to the judicial service requires that their appointments can be made only in accordance with the Rules framed by the Governor of the State after consultation with the State Public Service Commission and with the High Court. Therefore, bearing in mind the principle of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge. The High Court has rightly come to the conclusion that the persons presiding over Industrial and Labour Courts would constitute a judicial service so defined. Therefore, the recruitment of Labour Court judges is required to be made in accordance with Article 234 of the Constitution.” At the same time, he held that the Municipal Board was in ‘pith and substance’ an administrative body, and the impugned ‘judicial functions’ were severable from the administrative powers given to the Board under its enabling legislation. There was no analysis of the inter-relationship between the judicial and administrative features of the legislative scheme; the assumption was that any attempt to confer a s.
- It was submitted, that the above original jurisdiction vested in the High Court to issue prerogative writs, has been shown to have been consciously preserved, for matters pertaining to levy and collection of tax.
- 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.
- That this is the core of the judicial function as outlined by the constitutional provisions set out above.
- With regard to the first proposition, Mr. Chagla, the learned Senior Counsel, very comprehensively submitted that the Income tax is a tax on the income payable by the recipient.
The position is the same both prior to and after the amendment of 2008. The income of HTIL paid by the Petitioner to HTIL was income chargeable to tax in India and the Petitioner was obliged to deduct tax under Section 4 read with Section 195. Merely because non-residents are subject to Indian Income Tax act for transactions entered into outside India if the transaction has a clear nexus to income or property or asset in India, the provisions cannot be said to be extra territorial. In this behalf he relied on Pannalal Nandlal Bhandari Vs. CIT 41 ITR 76 .
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Therefore, the accounting of dividend and chit loss arises only at the end of the termination of chit expert guide why take the gre prepscholar gre and not earlier. On appeal by the assessees, the Commissioner of Income-tax , while rejecting the completed contract method, held that dividend is taxable in the year of receipt and chit loss is allowable as a deduction in the year of bid itself. The Assessing Officer found that the chit dividend was a regular activity and received on a regular basis and the discount amount would run for the remaining period of the chit. The assessing officer rejected the method of accounting adopted by the assessees and taxed the dividend in the year of receipt and allowed chit loss on proportionate time basis by distributing over the remaining period subsequent to the bidding at the chit auction. The assessees are private limited companies subscribing to chits as their business activity. The assessees were maintaining its accounts on mercantile basis and computing loss or profit, as the case may be, at the end of the chit period in respect of chits terminating in a particular previous year, following completed contract method.
Prima facie, HTIL, by reason of this transaction, has earned income liable for Capital Gains Tax in India as the income was earned towards sole consideration of transfer of its business/economic interests as a group, in favour of the Petitioner. All that the Respondents have urged in paragraph 6 is that neither the payments nor the residential status of the payer or the payee are relevant; and that where a restrictive meaning has been sought to be given to the meaning of the expression “person”, the Legislature has provided so clearly and unambiguously in various parts of the Act. In other words, the Respondents urge that this Hon’ble Court should prefer the statutory definition in preference to the contextual interpretation of the expression “person”.
Vs. Commissioner of Central Excise 280 ITR 321 , wherein it is held that; In any event, it is clear from the language of the validation clause, as quoted by us earlier, that the liability was extended not by way of clarification but by way of a amendment to the Finance Act with retrospective effect. It is well established that while it is permissible for the Legislature to retrospectively legislate, such retrospectivity is normally not permissible to create an offence retrospectively. There were clearly judgments, decrees or orders of courts and Tribunals or other authorities, which required to be neutralised by the validation clause. We can only assume that the judgments, decree or orders etc. had in fact, held that persons situate like the appellants were not liable as service providers. This is also clear from the Explanation to the valuation section which says that no act or acts on the part of any person shall be punishable as an offence which would not have been so punishable if the section had not come into force. The liability to pay interest would only arise on default and is really in the nature of a quasi punishment.
Vodafone International Holdings B.V. Versus Union of India (Bombay High Court)
Whereas in case, the jurisdiction and the functions sought to be transferred were being exercised/performed by District Judges, the Members appointed to the tribunal should be possessed of equivalent qualifications and commensurate stature of District Judges. In Union of India v. Madras Bar Association case , all the conclusions/propositions narrated above, were reiterated and followed, whereupon the fundamental requirements, which need to be kept in mind while transferring adjudicatory functions from courts to tribunals, were further crystalised. It came to be unequivocally recorded that tribunals vested with judicial power , should possess the same independence, security and capacity, as the courts which the tribunals are mandated to substitute. The Members of the tribunals discharging judicial functions, could only be drawn from sources possessed of expertise in law, and competent to discharge judicial functions. Technical Members can be appointed to tribunals where technical expertise is essential for disposal of matters, and not otherwise.
We shall first deal with the first perspective, namely, whether https://1investing.in/ interpretation in the manner accepted the world over, would be a constitutional mandate for appellate jurisdiction on tax matters, to remain with the jurisdictional High Court. Insofar as the instant aspect of the matter is concerned, reliance was placed on judgments emerging out of the Constitutions of Jamaica, Ceylon, Australia and Canada, rendered either by the Privy Council or the highest Courts of the concerned countries. The submission advanced at the hands of the learned counsel for the petitioners does not pertain to lack of jurisdiction or inappropriate exercise of jurisdiction. The submission advanced at the hands of the learned counsel for the petitioners pointedly is, that it is impermissible to legislate in a manner as would violate the “basic structure” of the Constitution. This Court has repeatedly held, that an amendment to the provisions of the Constitution, would not be sustainable if it violated the “basic structure” of the Constitution, even though the amendment had been carried out, by following the procedure contemplated under “Part XI” of the Constitution.
The Deputy Commissioner of Income Tax, Central Circle, Panaji., Panaji
Herein the jurisdiction transferred by the NTT Act was with regard to specified subjects under tax related statutes. Even though the legislature can reorganize the jurisdiction of judicial tribunals, and can prescribe the qualifications/eligibility of members thereof, the same would be subject to “judicial review” wherein it would be open to a court to hold, that the tribunalization would adversely affect the adjudicatory standards, whereupon it would be open to a court to interfere therewith. Such an exercise would naturally be, a part of the checks and balances measures, conferred by the Constitution on the judiciary, to maintain the rule of “separation of powers” to prevent any encroachment by the legislature or the executive.
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If a partnership has been entered between two persons of whom one is a benamidar of the other, there is no relation of partnership between the two persons and one person cannot constitute a firm. Contribution of capital by a partner to a firm constitutes “transfer”. Asset of partnership firm – transfer to partner by agreement – not valid – registered deed necessary.
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No suit can be filed for refund of duty invoking Section 72 of the Contract Act. So far as the jurisdiction of the High Court under Article or for that matter, the jurisdiction of this Court under Article 32 – is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.” As pointed out in the Statement of Objects and Reasons appended to the Bill which became the Act, the Act along with the Rules was intended to “form a complete central excise code”. The idea was “to consolidate in a single enactment all the laws relating to central duties of excise”. It contains provisions for collecting the taxes which are due according to law but have not been collected and also for refunding the taxes which have been collected contrary to law, viz., Sections 11-A and 11-B and its allied provisions.
Insofar as the instant aspect of the matter is concerned, learned counsel for the petitioners placed reliance on Articles 50 and 225 of the Constitution. Article 50 of the Constitution was relied upon to demonstrate the intent of the framers of the Constitution, namely, that they wished to ensure the exclusivity and the separation of the judiciary, from the executive. It is not necessary for us to deal with the instant aspect of the matter, for the reason that, in the judgments rendered by this Court which have been referred to by us hereinabove, the issue has already been debated with reference to Article 50 of the Constitution. Under the Income Tax Act, 1961, Section 260A, provided an appellate remedy from an order passed by the Appellate Tribunal, to the jurisdictional High Court. Similarly Section 129A of the Customs Act, 1962, and Section 35G of the Central Excise Act, 1944, provided for an appellate remedy from the concerned Appellate Tribunal to the High Court. The jurisdictional High Court would hear appeals on questions of law, against orders passed by the Appellate Tribunals.
The learned Senior Counsel submitted that in any view of the matter the transaction in question is not chargeable to tax in India and the Petitioner accordingly was under no obligation to withhold tax as required under Section 195. This section does not apply to payments made outside India by one foreigner to another even if the other has rendered services in India. A country does not recognise or enforce the revenue laws of another country. Therefore, if a payer in a foreign country, bound to make the payment under a contract governed by the laws for that land, were to seek to deduct Indian income-tax, the payee would be entitled to object to the deduction on the ground that no deduction can be made in that country, which is not authorised by the laws of that country or by the terms of the agreement”.
The Court was not called upon to consider whether the rights of a “joint venture partner” are a “capital asset” or whether such “partner” has any interest in the property of the joint venture company. It is therefore submitted that this decision would have no application when determining the taxability of an amount, more so when such taxability is dependent upon a legal fiction. It is submitted that there is no transfer of any of the telecom licenses or the goodwill or any of the other assets of the Indian operating companies inasmuch as the telecom licenses and all other assets continue to vest with the Indian operating companies.
We accordingly reject the claim of Company Secretaries, to represent a party before the NTT. Accordingly the prayer made by Company Secretaries in Writ Petition no. 621 of 2007 is hereby declined. Legislative powers of Parliament to enact laws which have provisions of having extra-territorial operation, is within the competence of Parliament.
It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. The reason for this broad separation of powers is that “the concentration of powers in any one organ may” to quote the words of Chandrachud, J., in Indira Gandhi case, 1975 Supp SCC 1, “by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged”. 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 has acted within the scope of its powers. The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons.
Based thereon it was asserted, that Parliament was competent to enact the NTT Act. For examining the instant contention, let us presume it is so. Having accepted the above, our consideration is as follows.
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Reference to ‘referred to in Section 200″, meant the persons mentioned in that section and not their acts of omission or commission. In this backdrop, section 191 has always been a more express safety valve provided by law to protect the right of collection of taxes from the assessee . The provision never provided any slippery ground in the scheme of collection/recovery of taxes to suggest that the deductor has the liberty of not deducting the tax and getting away with his obligation by seeking recourse to stipulation of direct payment by the assessee under section 191. Once the assessee has made payment of tax directly, the recovery of such tax again from the deductor cannot be made. As mentioned earlier, the Income Tax is levied on a twin basis On a resident/domicile basis and on the source of income which accrues or arises in India or is deemed to arise or accrue in India.
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As such, placing reliance on the decision in Mafatlal Industries Ltd. v. Union of India 5 SCC 536, it was submitted, that the above contention raised by the petitioners had no legs to stand. Furthermore, it was sought to be pointed out, that the phrase “substantial questions of law” has been interpreted by this Court to mean, not only questions of general pubic importance, but also questions which would directly and substantially affect the rights of the parties to the litigation. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.” Subject to clauses and , the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ‘State List’). Notwithstanding anything in clauses and , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). The third aspect is that the Legislature has not merely conferred finality to the decision of an Appellate Authority but has further laid down that the decision shall not be liable to be called in question in any court of law except as provided for in Section 20.
The shareholders who were thus entitled to participate in the profits need not have either made deposits or taken loans. Although it was contended on behalf of the assessee that it was exempt from assessment to tax as a Mutual Benefit Society under s. 10 of the Income-tax Act, 1922, on the principle in New York Life Assurance Co. v. Styles, 2 T.C. 460, which was followed in Board of Revenue v. Mylapore Hindu Permanent Fund Ltd., I.L.R. 47 Mad.
Where the Tribunal refuses to state the case as sought by the applicant, then again, the law provides for a direct approach to the High Court for issue of directions to the Appellate Tribunal to state the case to the High Court on the relevant question of law. This process also delays the consideration of the matter by the High court for quite some time. In addition to these types of delay, there will be further delays after the High Court decides the matter, as the Tribunal has to pass consequential orders disposing of the case, before the relief, if any due, can be granted to the assessee.
It seems to us that it is difficult to hold that Style’s case applies to the facts of the case. A shareholder in the assessee company is entitled to participate in the profits without contributing to the funds of the company by taking loans. He is entitled to receive his dividend as long as he holds a share. In The Sivaganga Shri Meenakshi Swadeshi Saswatha Nidhi Ltd. v. The Commissioner of Income Tax the High Court, without adverting to doubts expressed in the decision in Madura Hindu Permanent Fund Ltd., regarding the applicability of Style’s case, which was referred to in thestatement of the case, and without giving any reasons,, heldthat the Mylapore Hindu Permanent Trust case applied.
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