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DIT vs. Autodesk Asia Pvt Ltd (Karnataka High Court)
Interpretation of statutes & DTAAs: The substitution of a provision results in repeal of earlier provision and its replacement by new provision. When a new rule in place of an old rule is substituted, the old one is never intended to keep alive and the substitution has the effect of deleting the old rule and making the new rule operative. Though Notification dated 18.07.2005 (which substitutes paragraph 12 of Article 12 of the DTAA to provide for levy of tax on the royalties or fees for technical services at a rate not exceeding 10%) issued u/s 90 came into force with effect from 01.08.2005, it applies to the entire fiscal year Before proceeding further, we may advert to well settled rules of Interpretation with regard to taxing statutes. The substitution of a provision results in repeal of earlier provision and its replacement by new provision. [See: U.P.SUGAR MILLS ASSN. VS. STATE OF U.P.', (2002) 2 SCC 645]. The aforesaid principle of law was reiterated by the Supreme Court in WEST UP SUGAR MILS ASSOCIATION V. STATE OF UP (2012) 2 SCC 773 and by this Court in GOVARDHAN M V. STATE OF KARNATAKA (2013) 1 KarLJ 497. When a new rule in place of an old rule is substituted, the old one is never intended to keep alive and the substitution has the effect of deleting the old rule and making the new rule operative
Judgements uploaded by esteemed readers:
C Bright Vs The District Collector & Ors
Section 14 of SARFESI Act,2000 : The Apex court in the above case was dealing with a question of law as to whether the time limit of 30 days which is further extendable by a further period of 30 days for a District Collector to secure the possession of a secured asset is mandatory or directory. The appellant argued that the word used in the provision was shall and therefore the time limit was mandatory. The apex court however, noting catena of judicial decisions held that a well settled rule of interpretation of the statutes is that the use of the word "shall" in a statute, does not necessarily mean that in every case it is mandatory that unless the words of the statute are literally followed, the proceeding or the outcome of the proceeding, would be invalidKiran Gupta Vs State Bank of India
Whether a bank can institute or continue with proceedings against a guarantor under SARFESI Act when proceedings are the principal borrowers are pending under the Insolvency Code. The above question of law was argued by the State Bank by relying on the decision of the Apex court in the case of State Bank of India Vs V Ramakrishnan and another (2018) 17 SCC 394(SC) that Section 14 and 31 of the Insolvency Code do not bar initiation and continuation of proceedings against the Guarantor under the SARFESI Act. The court agreeing with the above in addition noted the provisions of SEction 128 of the Contract Act dea;lying providing that liability of a guarantor is co-extensive with that of the principal debtor and not in the alternative, and it cannot be said that proceedings in the NCLT against the principal debtor can be a bar to institution or continuation of proceedings against the guarantor under the SARFAESI ActImperia Structures Limited Vs Anil Patni & Another
The Apex court on 2nd November,2020 dismissed the appeal of Imperia structures limited Vs Anil Patni & Another against order passed by the National Consumer Dispute Resolution Council when the jurisdiction of NCDRC to entertain the complain in view of the registration under the Real Estate Regulation Act (RERA) was subject matter of challenge. The Apex court held that It has consistently been held by this Court that the remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act. This judgement will be helpful in all cases where builders are not giving flats and it is advisable to file complaint with consumer forum also in addition to RERA/HIRA.M/s Shah Realtors v. ACIT
The onus was upon the Assessing Officer to prove that the assessee received "on money" on sale of the property. The onus to claim that apparent is not real is on one who so claims. When the Assessing Officer requires the assessee to show-cause as to why there is difference between two purchasers and that the assessee offered explanation, no addition can be made simply discarding his explanation. No addition can be made on hypothetical basis or presuming a higher sale price by simply rejecting the contention without cogent reason.ACIT v. Safari Mercantile Pvt. Ltd.,
Tribunal held that where there was no transfer of shares but only a pledge of shares for purposes of obtaining a loan and revenue not disputed the fact of return of loan and also receipt of pledged shares creditor, no capital gain could be charged. Only income actually received or accrued upon sale of shares has to be taxed and not any contingent deferred income, notional or hypothetical income taxed as capital gain income in the hands of the Assessee. Followed Reliance Communication Infrastructure Ltd. (2012)254 CTR 251(Bom.)(HC) and Hemal Raju Shete (2016) 239 Taxman 176 (Bom)(HC) Articles published by esteemed readers:
Hindu Undivided Family, Female Coparcener and her rights clarified by the three judges' bench of the Supreme Court
Advocate B. V. Jhaveri and Kevin M. Boricha, Student, CA & Law, have explained the nuances of Hindu Undivided Family, Female Coparcener and her rights as clarified by the three judges' bench of the Supreme CourtAdmission And Retraction In Income-Tax Survey And Search And Relevancy Of Electronic Evidence
Advocate Narayan Jain, Kolkata presented a paper on "Admission and Retraction in Income-tax survey and search, and relevancy of electronic evidence" during a virtual National tax conference organized by The All India Federation of Tax Practitioners (AIFTP) (West Zone). The session was chaired by Dr. K. Shivaram, Senior Advocate, Mumbai.Contempt of Court
Advocate Amit Kumar Gupta has explained in detail the powers of High Court and Supreme court for initiating contempt of court and also stated the limitation on the power to punish for contempt. The power to punish for contempt is an extra-ordinary power which must be sparingly exercised but where the public interest demands it, the Court will not shrink from exercising it and imposing punishment even by way of imprisonment, in cases where a mere fine may not be adequate. Latest:
CIT vs. Sadiq Sheikh (Bombay High Court) (Goa Bench)
S. 68 Bogus Cash Credits: The Revenue can examine the source of the source. Merely pointing out to a source and the source admitting that it has made the payments is not sufficient to discharge the burden placed on the assessees by s. 68. Otherwise, it would be sufficient for assessees to simply persuade some credit-less person to own up having made such huge payments and thereby evade payment of tax on the specious plea that the Revenue can always recover the tax from such credit-less source. The explanation has to be plausible and backed by reliable evidence. 'Fantastic or unacceptable' explanations are not acceptable (All imp verdicts on s. 68 referred)__._,_.___
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