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Some relevant issues.The AO can relied.
After the judgment of the Supreme Court in the case of ACIT vs. Rajesh Jhaveri Stock Brokers (P) Ltd. delivered on 23-5-2007 and reported at (2007) 291 ITR 500 (SC), a large number of actions are being initiated u/s. 147/148 of the Income-tax Act, 1961 ('the Act' for short) and often high-pitched Income tax assessments are being made at several placesWhat is further disquieting is that the stay of recovery of tax demand is not being granted pending disposal of the appeal by the CIT (Appeal) and at least 50% of the tax demand including interest u/s. 234B, is being pressed for payment for which coercive action like attachment of bank accounts, levy of penalty u/s. 221(1) etc. are also being taken.
1. Board's Instruction No. 1914 dated 2-9-1993 for stay of demand is often relied upon to reject the stay applications and to insist on payment of at least 50% of the demand till the decision of the CIT(A). This is causing great hardship to the concerned assessees and often brings about helplessness and frustration among certain tax practitioners.
2. It is, therefore, necessary to examine what can be the possible ways of mitigating hardship and inconvenience to such tax payers and to ensurethat the assessments are opened u/s. 147/143(3) and consequential recovery of tax and interest are made only if they are justified in law.
3. The judgement of the Supreme Court in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) does not, in any manner, dilute the legal requirements established since long for taking action u/s. 147 of the Act. The ITO should have "reasons to believe" and not "reasons to suspect" and there "must be a direct nexus or live link between the material coming to the notice of the ITO and the formation of the belief that there has been escapement of income of the assessee from assessment in a particular year". The material for the formation of the belief has to be definite and relevant and not vague and fanciful. Of course, the sufficiency of the material can not be challenged for takingaction u/s. 147/148 and, therefore, to some extent, the formation of belief of the AO is within the realm of subjective satisfaction [(ITO vs. Selected Daluband Coal Co. (P) Ltd. (1996) 217 ITR 597 (SC); Raymond Woolen Mills Ltd. vs. ITO (1999) 236 ITR 34 (SC)].
4. The above proposition of law is well settled. In this connection, some of the important judgments are as under :-
(i) Calcutta Discount Co. Ltd. vs. ITO (1961) 41 ITR 191(SC)
(ii) S. Narayanappa & Others vs. CIT (1961) 63 ITR 219 (SC)
(iii) ITO vs. Lakhmani Mewal Das (1976) 101 ITR 434 (SC)
(iv) S.P. Agrawala & Ors vs. ITO (1988) 140 ITR 1010 (Cal)
(v) Murlidhar Bhagwan Dass & Co. vs. CIT (1990) 181 ITR 319 (Born)
(vi) United Electrical Co. (P) Ltd. vs. CIT (2002) 258 ITR 317 (Del)
Ratio of Rajesh Jhaveri's case – Internal source of information
7. What was held in Rajesh Jhaveri Stock Brokers (P) Ltd's case was that w.e.f. 1-6-1999 with the first proviso to the newly substituted section 143(1); the intimation u/s. 143(1) was not required to be sent. The acknowledgement of the return has to be deemed to be an intimation u/s. 143(1). Neither the acknowledgement nor the intimation u/s. 143(1) (a), where some tax becomes due on the basis of return, is not an order of assessment. As such, if the material available in the return and the accompanying documents, itself shows that some income has escaped assessment, the AO can be said to have 'reasons to believe' that income had escaped assessment. The consideration of such material for the purpose of initiating assessment proceedings u/s. 147 does not mean that there was a "change of opinion" and the principles relating to 'change of opinion' were not available to the assessee. Thus, Rajesh JhaveriStock Brokers (P) Ltd's case was essentially in the realm of the source of information or material that could constitute the reasons for the formation of the belief that any income has escaped assessment where the returns were accepted without scrutiny and consequent passing of regular assessment orders u/s. 143(3)/144 ofthe Act.
8. In such cases of accepted returns and in cases of scrutiny assessments, the status of external source of information for reopening of assessments u/s. 147 are not affected in any manner by Rajesh Jhaveri's case nor does it have any effect on the relevancy of reasons and their nexus for the formation of the belief that income chargeable to tax has escaped assessment. This will also be evident from the following observations of theSupreme Court on page 512 of the Report Vol. 291 :-
"In other words if the Assessing Officer for whatever reason has reasons to believe that income has escaped assessment it confers jurisdiction to reopen this assessment. It is, however, to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.
So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding u/s. 147 and failure to take steps u/s. 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation u/s. 143(1) had been issued".
No valid reasons for issue of notice u/s. 148
9. Often it is seen that the notices u/s. 148 are issued without there being legally valid reasons to meet the requirements of section 147 of the Act. Sometimes, the reasons recorded are "to make further investigation" or "there is huge concealment of income" or
"Mr. X has stated that he used to do only hawala business" without any specific instances of such entries relating to the assessee. Such material is often vague or general and does not constitute a relevant material which could be construed as providing "direct nexus or live link" for the formation of the belief that any income of the assessee has escaped assessment.
Get reasons, file objections and seek a separate order on the validity of action u/s. 147
10. In such cases, rather than going through the process of assessment, appeals, requests for stay of demand, recovery through coercive measures etc., it will be better and perhaps, expeditious and inexpensive option, to challenge the legality of the notice u/s. 148 before the assessment is made by the AO u/s. 147/143(3) ofthe Act. This can be achieved by requiring him to comply with the judgment of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19 (SC). The following procedure has been laid down therein:-
"However, we clarify that when a notice u/s. 148 of the Income-tax Act is issued, the proper course of action for the notice is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order before proceeding with the assessment in respect of the above said five assessment years".
11. The above judgement of the Supreme Court involves the following steps :–
(i) On receipt of the notice, the assessee should file the return
(ii) After filing the return or along with its filing, he should seek copy of the reasons recorded u/s. 147 before the issue of the notice u/s. 148.
(iii) On receipt of the reasons from the AO, the assessee should file objections to the issuance of notice u/s. 148. The objection should, inter alia, give reasons for challenging the legality of theaction taken u/s. 147 based on an analysis of the reasons vis-a-vis the legal requirements. The assessee should specifically request the Ld. AO to pass a speaking order disposing of the objections by quoting, inter alia, the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. (supra).
12. The object of the AO's order/separate order disposing of the objections is to enable the assessee, to file a writ petition u/s. 148 in the respective High Court, if so advised, before the assessment order is passed; challenging the legality of the said notice u/s. 148 and the assessment sought to be framed in consequence thereof. In the writ petition, inter alia, the assessee should seek stay against the AO passing the order there being no valid case for the exercise of jurisdiction u/s. 147/148 of the Act.
13. Even in cases where assessment orders have been passed and are the subject matter of appeal before the CIT (Appeal), the assessee can approach the High Court by way of a writ challenging the validity of the notice u/s. 148 and the consequent assessment order made by the AO on the ground that the procedure laid down by the Supreme Court in GKN Driveshafts (India) Ltd. (supra) has not been followed and a separate speaking order disposing of the objections to the validity of the notice u/s. 148 has not been passed. The assessee will, of course, have to show that he had asked for the reasons for the issue of notice and/or after the supply of the reasons, he had raised objections or sought more information and requested for the passing of a separate reasoned order regarding the objections raised against the legality of the AO's jurisdiction u/s. 147/148 of the Act. In that case, he could also ask for the setting aside of the assessment order u/s. 147/143(3) pending the passing of a separate order and disposing of the objections. In this connection, he can rely, apart from the judgment of the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd., a direct authority in the judgment of the Hon'ble Delhi High Court in Smt. Kamlesh Sharma vs. B.L. Meena ITO (2006) 287 ITR 337 (Del). In that case, their Lordships took a very strong view of the AO not following the procedure prescribed by the Hon'ble Supreme Court and imposed a cost of Rs. 3,500/- on the Department. They laid down the following proposition of law:-
"We are of the opinion that in view of the language of the Supreme court in GKN Driveshafts (India) Ltd. vs. ITO (2003) 259 ITR 19, the Assessing Officer should have rejected the objection, if he thought it appropriate to do so, before passing the final order and not simultaneously.
This position was reiterated by this Court in Sita World Travels (India) Ltd. vs. CIT (2005) 274 ITR 186.(Del)
We cannot appreciate how, in spite of the clear language used by the Supreme Court as well as this Court, the Assessing Officer did not comply with the requirement of law.
Learned counsel for the respondent submits that the objections touched upon the merits of the controversy and the failure of the Assessing Officer to deal with the objections before passing the assessment order was only a technical error. We are mentioning this only to reject this argument in view of the clear language of the Supreme Court. The Assessing Officer cannot try to hide behind niceties, which are not even legal.
Under the circumstances, we set aside the assessment order dated January 31, 2005 and direct the Assessing Officer to deal with the objections dated October 19, 2004, filed by the petitioner within a period of eight weeks from today. Needless to say, the Assessing Officer should pass a speaking order.
For not following the law laid down by the Supreme Court and stressed by this Court, we impose costs upon the respondent of a sum of Rs. 3,500/- to be paid to the petitioner. The costs be paid within a period of four weeks from today".
14. The High Court would not quash the notice
u/s. 148 but would set aside the assessment and direct the AO to pass a separate order disposing of the objections against AO's action u/s. 147/148. On receipt of such an order and before a fresh assessment is made, the assessee should challenge the legality of the notice u/s. 148 based on such a separate order. This would provide a remedy that would avoid long drawn-out appeals before CIT(A)/ITAT, and problems connected with the recovery of demand.
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Wednesday, December 16, 2009
COMPANY CASES (CC) HIGHLIGHTS ISSUE DATED 18.12.2009 Volume 152 Part 7
COMPANY CASES (CC) HIGHLIGHTS
<.>Trust has locus standi to file petition u/s 397/398 if its name is found in register of members or share certificate issued in its name : Vijay Kumar Bhartia Family Trust v. Ranken and Co. P. Ltd. p. 722
<.>CLB cannot entertain application for refund of excess interest paid on deposit : K. Suresh v. Associates India Finance Services Ltd. p.725
<.>Application not maintainable where registered office of company not situated within territorial jurisdiction of Bench of CLB : K. Suresh v. Associates India Finance Services Ltd. p. 725
<.>Where company party to illegal conduct which formed basis of its claim for damages for auditors' failure to detect fraud, the auditors could rely on the defence of ex turpi causa to debar company's claim : Stone and Rolls Ltd. (in liquidation) v. Moore Stephens (a firm) p. 729
Circulars :
RBI Circulars
<.>Credit Information Companies (Regulation) (Removal of Difficulties) Order, 2008-RPCD.CO RRB. No. 32/03.05.33/2009-10, dated 20th October, 2009 : P. 92
<.>Requirement for obtaining prior approval of RBI in cases of acquisition/transfer of control of NBFCs accepting deposits-DNBS(PD) CC. No. 160/03.10.001/2009-10, dated 17th September, 2009 : P. 94
SBI Circulars
<.>Dealings between a client and a stock broker (trading members included)-MIRSD/SE/Cir-19/2009, dated 3rd December, 2009 : P. 79
<.>Establishment of connectivity with both depositories NSDL and CDSL-Companies eligible for shifting from Trade for Trade Settlement (TFTS) to normal rolling settlement-SEBI/MRD/DoP/SE/Cir-17/2009, dated 30th November, 2009 : P. 77
<.>Limitation period for filing of arbitration reference-MRD/DSA/SE/CIR-18/2009, dated 2nd December, 2009 : P. 78
<.>Preservation of records-MRD/DoP/DEP/Cir-20/2009, dated 9th December, 2009 : P. 84
<.>Preservation of records-MRD/DoP/SE/Cir-21/2009, dated 9th December, 2009 : P. 85
<.>Simplified Debt Listing Agreement for Debt Securities-Amendments-SEBI/IMD/DOF-1/BOND/Cir-5/2009, dated 26th November, 2009 : P. 86
Directions
F Non-Banking Financial Companies (Deposit Accepting) (Approval of Acquisition or Transfer of Control) Directions, 2009 : P. 93
Guidelines
<.>Guidelines for Corporate Social Responsibility : P. 95
Regulations
<.>Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) (Third Amendment) Regulations, 2009 : P. 99
<.>Foreign Exchange Management (Remittance of Assets) (Amendment) Regulations, 2009 : P. 100
<.>Expert Committee for winding up of sick companies
The Government has constituted an Expert Committee for giving recommendations for better efficiency in the conduct of liquidation and winding up proceedings of companies including sick companies in the company courts. Giving this information in the Rajya Sabha today in a written reply the Minister of Corporate Affairs, said that the Committee is mandated to suggest suitable amendments to the Companies (Court) Rules, 1959, towards reducing the time frame for time consuming procedures for winding up matters. The Committee is likely to submit its report by February, 2010. The Minister also informed the House that Winding up a sick entity involves multiple regulations. [Source : www.pib.nic.in dated December 7, 2009]
<.> Bourses to prune papers for minimum five years
To ensure assistance to enforcement agencies during company investigations, the Securities and Exchange Board of India (SEBI) has asked exchanges and brokers to preserve original records for a period ranging from two to five years.
The market regulator has said stock exchanges and its members are required to maintain and preserve the specified books of account and documents for as long as five years.
"The originals of such documents maintained either in physical or in electronic form or in both would be required by such enforcement agencies during trial of the case also," said SEBI.
Further, stock brokers and sub-brokers will have to preserve the specified books of account and other records for a minimum of five years.
"If a copy is taken by such enforcement agency either from physical or electronic record, then the respective original is to be maintained till the trial or investigation proceedings have concluded," said SEBI.
If such documents are maintained in electronic form, provisions of the Information Technology Act, 2000, in this regard are to be complied with, added the note from the market regulator. [Source : www.businessstandard.com dated December 10, 2009]
<.> SEBI extends ASBA to HNIs, corporates
Wealthy and corporate investors will soon be able to use the application supported by blocked amount or the ASBA facility-where a public issue applicant's money leaves his bank account only after the share allotment. In a circular, the market regulator SEBI said the system, which has been available only to retail investors since its introduction in May 2008, will also be accessible to these investor segments too, barring qualified institutional buyers (QIB), starting January 1.
SEBI has abolished restrictions in the existing ASBA facility, which do not allow revised bids, accept more than one bid and accept application only at the cut-off price in a public issue.
The move is part of SEBI's attempts to reduce the time between the closure of a public issue and its listing. In a recent interview the SEBI chairman had indicated the possibility of reducing this period to seven days from 20 days, currently.
"100 per cent. payment for institutions needs to be done. Two things have to be put in place before that. One, the ASBA facility should be available for institutional investors, and two, the time taken to list from the day of issue closure has to be reduced. Institutional amounts are huge, and if you keep them blocked for a considerable period of time, there will be issues," he said. [Source : www.economictimes.com dated December 11, 2009]
<.> Voting rights sought by "fit and proper" persons in private banks
A proposal to amend the Banking Regulation Act, 1949, is under consideration of the Government. The proposed amendment, inter alia, provides for addition of a new section 12B to provide prior approval of Reserve Bank of India for acquisition of 5 per cent. or more of shares or voting rights in a banking company by any person and empowering Reserve Bank of India to impose such conditions as it deems fit in this regard in order to satisfy itself that the acquisition of shares of a banking company is by a person considered "fit and proper" and that the applicant continues to be "fit and proper" to hold the shares or voting rights. [Source : www.pib.nic.in dated December 11, 2009]
<.> SEBI curbs on incomplete MF documentation
In a move to make the mutual fund (MF) industry more transparent, the Securities and Exchange Board of India (SEBI) has asked asset management companies (AMCs) to stop paying commissions to intermediaries, including banks and other distributors, who did not keep proper documents of their clients.
The documents relate to know-your-client (KYC) and power of attorney (PoA) norms for the industry.
"All documents related to investors, including KYC, PoA, in respect of transactions or requests made through some mutual fund distributors are not available with AMCs and registrar and transfer agents. The same are to be maintained by the distributors," it said.
The regulator has also asked fund houses to set up a separate customer service, mechanism for queries and grievances of unit holders. [Source : www.businessstandard.com dated December 12, 2009]
<.> Investors free to shift without AMCs' nod
The Securities and Exchange Board of India (SEBI) has asked asset management companies (AMCs) not to compel investors to get no-objection certificates (NoCs) from their existing distributors for shifting their investments.
This is a reiteration of the Association of Mutual Funds of India (AMFI) advice to AMCs to allow investors to change their distributor on the basis of a letter from them.
However, "it appears that this mandate is not being followed by the mutual fund industry," it said. "Some AMCs are insisting on the investor procuring an NoC from the existing distributor for this switch over, despite the guideline from AMFI," said SEBI. [Source : www.businessstandard.com dated December 12, 2009]
<.> Bank-financing to prop up stake-sales in PSUs
The Finance Ministry will request the Reserve Bank of India (RBI) to ease the norms for bank financing of initial public offers to ensure a good response to its proposed stake-sales in public sector companies and the simultaneous follow-on offers from many of them.
The Government may also informally ask public sector banks to bring down the margin requirements on IPO financing to 40 per cent. of the application money from 50 per cent. now, a senior Finance Ministry official said.
Share sales of public sector companies along with the auction of third generation, or 3G, spectrum will help the Government partly bridge its fiscal deficit. For Financial Year 2010, the Government has projected a fiscal deficit of 6.8 per cent. of the gross domestic product or GDP.
Many high net worth individuals use borrowed funds to apply for a large chunk of shares. In the current system of proportionate allotment, it helps them garner a larger number of shares and, thereby, boost the prospects of gains on listing. The Government is also looking at prescribing a lock-in for retail investors who are allotted shares at 5 to 10 per cent. discount. Under the current norms banks are not allowed to finance the funding of shares with a lock-in period.
However, a senior RBI official said that the RBI is yet to receive these proposals from the Government and going by the current regulations these exemptions can be granted only on a case-to-case basis.
IPO financiers, however, feel that easing financing norms for public offerings will not make a difference given the raft of large-sized offerings expected to be launched.
"The chances of multi-fold oversubscription in forthcoming IPOs and FPOs remains flimsy although the benchmark indices are close to the calendar year high", said the head of a leading Mumbai-based brokerage house. IPO financing is best suited in small, oversubscribed offers, he added. [Source : www.economictimes.com dated December 10, 2009]
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Tuesday, December 15, 2009
Special Leave Petition – Scope – Binding Nature – Doctrine of Merger
1. Introduction
1.1 Any Authority under the direct tax laws who is entrusted with the task of implementing and enforcing the law has to interpret the relevant provision involved. There is administrative and judicial hierarchy under the tax laws, therefore the interpretation placed upon a provision by a higher authority will be binding on the lower authority. Thus an interpretation placed by higher authority becomes a 'precedent' for the lower authority, until it is reversed or modified by a higher authority, or amendment of law by the legislature. The statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. The Appellant of the Constitution of India reads as under :
"141. Law declared by Supreme court to be binding on all courts – The law declared by the Supreme Court shall be binding on all courts within the territory of India."
Special leave to appeal are filed before the Supreme Court under Article 136 of the Constitution. The Supreme Court may accept or reject the same. The consequences of rejection are of far reaching effect.
The Apex Court may reject the petition seeking grant of special leave to appeal, for several reasons. When such special leave petition (SLP) is rejected or allowed what are its consequences? Can it be said that the Supreme Court has declared its view on the legal aspects involved and hence by virtue of Article 141 of the constitution, all lower Courts, Tribunals, etc. are bound by the view of the Apex Court? We have tried to explain the legal implication of rejection of Special Leave Application by the Apex Court.
2. Special Leave Petitions – Meaning and Scope
2.1 The Article 136 of the Constitution of India reads as under:
"Art. 136. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgement, determination, sentence or order passed or made by any Court or Tribunal constituted by or under any law relating to the Armed Forces."
2.2 Notwithstanding the provisions for regular appeals from proceedings before the High Courts in Arts. 132-134, of the Constitution of India there may still remain some cases, where justice might require the interference of the Supreme Court with decisions not only of the High Courts but also of any other Court or Tribunal of the land. Accordingly a person aggrieved by any order or judgement of High Court or of Tribunal, may appeal to the Supreme Court by filing special leave petition notwithstanding the provisions for regular appeals. The power of the Supreme Court to grant special leave to appeal from the decision of any Court or Tribunal save military tribunals, is not subject to any constitutional limitation, and is left entirely to the discretion of the Supreme Court.
2.3 Under Article 136 of the Constitution of India the Supreme Court shall have the power to grant special leave to appeal -
a) from any judgment, decree, determination, sentence or order,
b) in any cause or matter,
c) passed or made by any Court or Tribunal, in the territory of India.
2.4 Special Leave can be granted from orders of any Court or Tribunal even where there is an appeal to the High Court. The jurisdiction conferred by the Supreme Court is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of the judgment or order made by the Court or Tribunal in any case or matter and the jurisdiction can be exercised inspite of other specific provision for appeal contained in the Constitution or other laws. Any legislation, subordinate to the Constitution, cannot whittle down, the jurisdiction of the Supreme Court under Article 136 or of the Constitutional courts in this country as observed by the Supreme Court in case of Mahendra Saree Emporium II vs. G.V. Srinivasa Murthy (2005) 1 SCC 481. Conclusiveness or finality given by a statute to any decision of a Court or Tribunal cannot deter the Supreme Court from exercising this jurisdiction. It is not restricted even by the appellate provisions enumerated under Cr. P.C or any other statute.
2.5 If the issue raised is essentially one of law of considerable importance, it can be raised before the Supreme Court for the first time with its leave. When special leave is granted only the issues raised alone can be contested and the entire case is not open at large.
2.6 The Supreme Court may refuse to entertain appeal under Art. 136 from the order of inferior Tribunal where the litigant has not availed himself to the ordinary remedies available to him at law, or has not appealed from the final order of the Appellate Tribunal on appeal from the decision of the inferior Tribunal.
2.7 No rules or principles as to when such leave ought to be granted and when it ought to be refused can be laid down, as each case would depend on its own peculiar facts. As the Supreme Court itself observed in one case, "it is not possible to define the limitations on the exercise of the discretionary jurisdiction vested in this Court by Art. 136…….. It being an exceptional and overriding power, naturally, it has to be exercised sparingly and with caution and only in special and extraordinary situations." [Dhakeswari Cotton Mills Ltd. vs. CIT West Bengal AIR 1955 SC 65 / (1954) 26 ITR 775 (SC)]. Article 136 does not give a right to a party to appeal to the Supreme Court. It confers a wide discretionary power on the Supreme Court to interefere in suitable cases.
2.8 When High Court had passed other orders simultaneously with the order impugned in the SLP and the Revenue, inspite of having been given the opportunity, failed to file an affidavit to explain as to why it did not file appeal against those orders, the Supreme Court may dismiss an appeal without going to the merits of the case so that no likelihood is caused against the orders of the Tribunals order.
2.9 A pure question of law though never raised or argued before High Court can be gone into but not of fact or a mixed question of law and fact or in respect of jurisdiction of the court. In case the question of fact to be decided the Supreme Court may direct the same to be decided by the appropriate authority and where any mixed question of law and fact went to the root of the matter and it became relevant the Supreme Court may remand the matter back to the High Court for fresh consideration. Similar direction was made by Supreme Court in the matter of Anil Jain vs. CIT & Anr (2007) 294 ITR 435 (SC). Interference by the Supreme Court is justified in tax matters where the question is purely one of law and there was a difference of opinion among various High courts.
2.10 Generally Apex Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.
3. Effect of Dismissal of Special Leave Petition
3.1 A mere dismissal of SLP does not mean that High Court decisions is approved on merits so as to be a judicial precedent. In Smt. Tej Kumari vs. CIT (2001) 247 ITR 210 Full Bench of the Patna High Court held that when a SLP is summarily rejected or dismissed under Art 136 of the Constitution such dismissal does not lay down any law. The decision of the High Court against which the SLP is dismissed in limine would not operate as res-judicata.
However, when Supreme Court dismisses an SLP with reason, it might be taken as the affirmation of the High Court views on merits of the case, thus there is no reason to dilute the binding nature of precedents in such cases.
3.2 Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgement-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing the petition for special leave to appeal.
The Hon'ble Bombay High Court in the case of CIT vs. M/s. Pamwi Tissues Ltd. (2008) 3 DTR 66 (Bom) / 215 CTR 150 (Bom) while considering the issue of interpretation of Sec. 43B, 2(24)(x) r/w sec. 36(1)(va) as to the claim of deductions inrespect of PF, ESIC contribution, held that the Hon'ble Supreme Court in CIT vs. M/s. Vinay Cement Ltd. had dismissed the SLP, [(2007) 213 CTR 268] as it was not a fit case for grant of a SLP therefore cannot be said to be the law decided on the subject and it was not a binding precedent as per Article 141 of the Constitution of India.
3.3 In State of Orissa & Ors. vs. M.D. Illyas, (2006) 1 S.C.C.275 the Supreme Court has held that a decision is a precedent on its own facts and that for a judgment to be a precedent it must contain the three basic postulates. A finding of material facts, direct and inferential. An inferential finding of fact is the inference which the Judge draws from the direct or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) Judgment based on the individual effect of the above.
3.4 In Delhi Administration vs. Madan Lal Nangia AIR 2003 SC 4672 it was held that if a SLP is summarily dismissed, this cannot prevent other parties from filing a SLP against the same judgement.
3.5 The Supreme Court in Indian Oil Corporation Ltd. vs. State of Bihar & Ors. (1987) 167 ITR 897 (SC) has clarified that the dismissal of a special leave petition by the Supreme Court by a non-speaking order would not operate as res judicata by observing that- "When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be reopened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding, namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principles of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork".
3.6 In all cases of admission of the SLP the further decision on merits follows whereas in every case of dismissal there is no question of further decision or proceedings from the Supreme Court and effectively the order of the lower Court/authority which is challenged before the apex Court is affirmed and becomes final. In such a situation the question whether the person/s aggrieved by the order of the lower Court could agitate his grievance by way of an application for review or rectification of mistakes apparent from record so as to pursuade the lower authority to modify its final order in the light of the application for rectification or review, to the extent and in the manner found appropriate is still open for consideration. The respondent often pleads that the order of the lower Court having been affirmed by the Supreme Court it is no more open to the lower authority, after the dismissal of the SLP to entertain any application and/or decide the same for the purpose of review, revision or modification of the order which has been upheld by the Supreme Court. The controversy is not free from doubt. The effect of dismissal of SLP by the Supreme Court is that the order of the Supreme Court does not constitute res judicata to deny the petitioner the right to agitate matters on merits before the competent Court/Tribunal.
3.7 Before the Delhi Tribunal Special Bench in the case of Dy. CIT Circle II Meerut vs. Padam Prakash (HUF) [2009] 117 ITD 129 (Del.)(SB) the assessee had filed a Miscellaneous Application against the decision of the Special Bench alleging certain mistake in the decision. On the date of hearing it was noticed that the decision of Special Bench was challenged in appeal before High Court u/s. 260A of the Act and the Hon'ble High Court held that the order of Spl. Bench was not sustainable. In view of the above the Tribunal held that as the Special Bench decision was merged with the order of High Court there was no question of rectification.
3.8 Similarly where a question has been decided in favour of the assessee or the Department, as the case may be by the High Court, the mere fact that a SLP from the judgment of the High Court is pending before the Supreme Court will not be a ground for allowing an application u/s. 256(2) of the Act, for directing the Tribunal to state the case and refer a question of law to the High Court because, until the question is finally decided by the Supreme Court, the High Court would be bound by its own earlier decision. [See CIT vs. Desai Brothers Ltd. (1991) 189 ITR 88 (Bom) and CIT vs. Godavari Sugar Mills Ltd. (1992) 198 ITR 196 (Bom)]
Effect of dismissed of appeal by High Court holding that no substantial question of law arose:
3.9 Before the Delhi Special Bench in the case of Medicare Investments Ltd. vs. Jt. CIT Sp. R. 20 (2008) 114 ITD 34 the issue arose for consideration was, whether the decision of Hon'ble Delhi High Court dismissing the appeal filed by the Revenue against the order of the Tribunal passed in the case of Abhinandan Investment Ltd. & Ors. [2002] 254 ITR 538 (Del.) holding that no substantial question of law arose, is a decision on merits and constitutes a binding precedent which this Special Bench is bound to follow.
The Delhi Spl. Bench relied on the judgement Hon'ble Gujarat High Court (2006) 283 ITR 402 (Guj), wherein it had been held that dismissal of tax appeal by the High Court holding that no substantial question of law arises implies that the order of the Tribunal on the issue stands merged in the order of the High Court and for all intents and purposes, it is the decision of the High Court which is operative and which is capable of being given effect to. The Hon'ble Gujarat High Court, observed that a plain reading of s. 260A inclusive of sub-sections of the said section makes it clear that the only jurisdictional powers that the High Court can exercise are to hear an appeal and the High Court does not have any powers under the statute to grant any leave as such for filing an appeal. Explaining further, it was observed by their Lordships that the person filing the appeal is not required to seek any leave from any authority much less the High Court prior to filing of the appeal and it is, therefore, not possible to bifurcate the jurisdiction or powers available to the High Court while dealing with an appeal under s. 260A of the Act.
It was held that in all eventualities, what merges is the operative part of the order under appeal after its confirmation, reversal or modification and there would be a merger even in a case where the reasoning of the subordinate forum is not expressly approved. It was held that if the merger is issue-specific, there is fusion of order only to that limited extent but it cannot be successfully contended that where the appellate Court merely accords approval to the reasoning of the lower Court or forum, there is no decision of the appellate Court or forum. It was also clarified by the Hon'ble Gujarat High Court that where the appeal is dismissed on account of being barred by limitation, being defective in nature or the appellant having no locus standi to prefer the appeal, the theory of merger of the order of the subordinate forum in the order of the superior forum cannot be applied because there is no "order" made by the superior forum on merits and the controversy between the parties has not been gone into by the appellate forum. It was also held that it is thus not open to any person to contend that there is no decision of the High Court and the subordinate forum is entitled to take a contrary view than the one adopted in the earlier proceedings which has been affirmed by the High Court by a process of dismissal of appeal simpliciter.
Inview of the above Gujaarat High Court decision the Spl. Bench held that Hon'ble Delhi High Court in the case of Abhinandan Investment Ltd. & Ors. (supra), upholding the order of the Tribunal and dismissing the appeal filed by the Revenue on a similar issue holding that no substantial question of law arose, is a decision on merits and since the issue involved in the present case as well as all the material facts relevant thereto, as discussed above, are similar to that of Abhinandan Investment Ltd. & Ors. (supra), the said decision is binding on the subordinate forums within the jurisdiction of Hon'ble Delhi High Court including this Special Bench.
4. Doctrine of Merger: speaking & non-speaking order:
4.1 The term merger means to sink or disappear in something else, to become absorbed or extinguished to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist. The doctrine is neither a doctrine of Constitutional law nor a doctrine statutorily recognized. It is a common law doctrine founded on the principles of propriety in the hierarchy of justice delivery system.
4.2 It is a settled law that when the SLP is dismissed, whether by a speaking or non-speaking order whether in limine or on contest, second SLP would not lie. However the statement cannot be stretched and applied to hold that such an order attracts applicability of doctrine of merger and excluded jurisdiction of the court or authority passing the order to review the same.
4.3 It may be that inspite of having granted leave to appeal , the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of the Supreme Court would result in superseding the decision under appeal attract doctrine of merger. But if same reason has prevailed with the Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant the leave to appeal.
4.4 The Supreme Court considered the scope of Article 136 in a case Kunhayammed vs. State of Kerala (2000) 245 ITR 360 (SC) where the main issue related to the doctrine of merger and the effect of dismissing a special leave petition by either a speaking or non speaking order. After a brief discussion of the earlier case law on the subject, the court summarized its conclusions as under:-
- i. Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
- ii. When the leave to appeal is granted, the special leave petition is converted into an appeal.
- iii. An order refusing special leave to appeal may be a non speaking order or a speaking one. In either case it does not attract the doctrine of merger. If the Petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out. Therefore, neither the doctrine of merger nor Article 141 of the Constitution will apply to such a case.
- iv. If the order refusing leave to appeal is a speaking order i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, Tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country.
- v. Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
- vi. On an appeal having been referred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub rule(1) of Rule (1) of order 47 of the CPC.
- vii. Inspite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgement, decree or order appealed against is put in jeopardy, though it continues to be binding and effective between the parties unless it is a nullity or unless the court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge.
4.5 The Hon'ble Apex Court in case of V.M. Salgaocar & Bros. P. Ltd.. (2000) 243 ITR 384 (SC) held that when an appeal is dismissed by the Supreme Court by a non speaking order the order of the High Court or the Tribunal from which the appeal arose, merges with that of the Supreme Court. In such a case the Supreme Court upholds the decision of the High Court or the Tribunal from which the appeal is provided under clause (3) of Article 133 of the Constitution.
5. SLP — Authority for Advance Ruling –Settlement Commission
5.1 The aggrieved assessee / revenue in certain cases can challenge the order of the AAR in a SLP before the Supreme Court under Art 136 of the Constitution of India and if the Supreme Court is satisfied that the order passed by Authority of Advance Ruling is incorrect and untenable, whether on facts or in law and hence liable to be set aside, it would be proper for the Apex Court to set it aside so as to prevent miscarriage of justice by continuing an erroneous order to survive, operate and bind the parties. The assessee and / or Revenue cannot plead that the AARs having passed an order which is final under the statute and is not open to challenge in the normal course like the order of the Tribunal, the finality to the order of AARs cannot and should not be disturbed at the instance of one of the parties to whom it is not found suitable.
5.2 The fact that AAR is the original as well as the final authority in normal circumstances cannot be lost sight of nor can one plead that because of the statute giving finality to such an order, no one has any remedy against the same and has to face the consequences of an order. The pleas that no judicial review is open in respect of such cases decided by AAR cannot be sustained because judicial review is one of the basic structures of the Constitution and the same cannot be denied by taking shelter under the provision in the statute for making the orders of the AAR final and binding on both the parties to the dispute agitated before it. In the case of DIT (International Taxation vs. Morgan Stanley & Co. Inc, (and vise versa) [2007] 292 ITR 416 (SC) the Department as well as the assessee both filed Special Leave Petition before the Hon'ble Supreme Court against the ruling of AAR.
5.3 The jurisdiction exercised by the Supreme Court over the orders of the Settlement Commission is in the nature of judicial review. The Settlement Commission established under the Income-tax Act, Wealth-tax Act and also the Central Excise and Customs Acts would also enjoy similar position and powers in regard to the orders passed by it on the application for settlement made by the taxpayers. The finality to the orders of the Settlement Commission has been held to be not proper to conclude wherever the orders suffer from serious infirmities or illegalities vitiating the same for which the orders of the Settlement Commission could be challenged before the High Court in a writ petition under Article 226, or before the Supreme Court in a Special Leave Petition under Article 136. However as a trend, orders of settlement commission are primarily challenged before respective High Court under Article 226 of the Constitution of India.
6. Procedure for filing Special Leave Petition (Slp)
6.1 The Rules governing SLP are contained in order XVI of the Supreme Court Rules 1966. Under the said rules, SLP can be filed against either the order of High Court rejecting petition for leave to appeal to Supreme Court of India; i.e. on High Court refusing to grant certificate of fitness for leave to appeal to Supreme Court or against the order/judgement itself. It is also possible to file SLP against the judgement of the High Court either in Writ Petition or in the Income tax Reference. If the petition is filed against the judgement of the High Court, the time limit is 90 days from the date of judgement/order and if the petition is filed against the order of High Court refusing to grant certificate of fitness for appeal, the time limit is 60 days from the date of order refusing to grant certificate. The above time limit is subject to the time taken for obtaining certified copy of the judgement/order i.e. subject to sections 4,5,12 and 14 of the Limitation Act, 1963. In exceptional circumstances the Apex Court may condone the delay in the filing of an SLP.
7. Conclusion
7.1 The Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works P. Ltd. (1992) 198 ITR 297 (SC) observed that the judgement must be read as a whole and the observations from the judgement have to be considered in the light of the questions which were before the Court.
7.2 A perusal of the aforesaid judicial analysis in regard to the effect of rejection of SLP and its consequences and the scope of Article 136 of Constitution of India would show that the jurisdiction conferred by the Supreme Court is a plenary jurisdiction and the wide discretionary power has to be exercised sparingly and in exceptional cases only. Secondly every order of Supreme Court would not have a binding effect unless it is a speaking order deciding the law on the subject. Thus mere dismissal of SLP without any reasons cannot be said to be law decided and consequently it would not be a binding precedent, however if the Supreme Court has given reasons for dismissing the SLP that will attract Article 141 of the Constitution which will have binding precedent.
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CCD HIGHLIGHTS ISSUE Dt.15.12.2009 Volume 24 Part 8
CONSOLIDATED COMMERCIAL DIGEST (CCD) HIGHLIGHTS ISSUE DATED 15.12.2009 Volume 24 Part 8
ARTICLES
FEMA
Analysis of DIPP's Press Notes Nos. 2, 3 and 4 of 2009-Amit Kumar and Vinay V. Mishra, Gujarat National Law University, Gujarat
Foreign investment is one sector which has always been looked at with critical eyes. It is governed by a combination of the prevailing foreign investment policy of the Government of India, the Foreign Exchange Management Act, 1999 and regulations and notifications issued by the Reserve Bank of India, under the FEMA.
The 2009 Press Notes Nos. 2, 3 and 4 changed the scenario and method by which foreign investment is calculated for downstream investment of foreign companies. This has given rise to various confusions and still requires clarifications as to the exact intent of the policy. There is both support for and opposition to the policy. Whatever may be the situation, these press notes have created an entirely new environment for foreign investment.
This article attempts an analysis of the same by comparing the previous and present position with some recent examples. P. 618
CCD CHAMBERS
Find out answers to your queries on the following subjects:
Income-tax
Claim of deduction under sections 80DD and 80U -- certificate required from medical authority P. 626
FBT on expenses reimbursed by customer P. 627
Service tax
Clearing and Forwarding Services P. 628
Maintenance and Repair Services P. 629
Authorized service stations P. 630
CASE LAW
Digest of recent decisions
Corporate Law
Scheme of amalgamation-Could a scheme of amalgamation be sanctioned without notice to the secured creditors when public interest is at stake?--Ramco Super Leathers Ltd. v. Dhanalakshmi Bank Ltd. [2009] 152 Comp Cas 437 (Mad). P. 642
Winding up-Could a winding up petition be dismissed on the ground that amount claimed in statutory notice was larger than amount claimed to be admittedly due in the petition?--Lecoanet Hemant India P. Ltd. v. Interglobe Aviation Ltd. [2009] 152 Comp Cas 495 (Delhi). P. 642
Income-tax
Appeal to Appellate Tribunal-Could an appeal filed by the Department be dismissed on ground of low tax effect? Would an order of rectification under section 154 be passed when on facts there was no error apparent on the records?--CIT v. Chandulal alias Vallabhdas Damji [2009] 317 ITR 426 (Guj). P. 643
Penalty-Can penalty proceedings be initiated under section 271(1)(c) of the Income-tax Act, 1961 for failure to disclose capital gains from the sale of property although the sale agreement was filed alongwith the application seeking the clearance certificate?--Smt. Ram Piari v. CIT [2009] 225 CTR (P&H) 330 P. 644
Intellectual Property Rights
Trademark-For an action against "passing off" to succeed under the Trade Marks Act, what constitutes the burden of proof on the plaintiff? Could the plaintiff, having registered a trademark overseas without significant sales turnover, claim prior use of the trademark against an Indian company having an identical trademark in India, which was registered prior to the plaintiff's entry into the Indian market?--UAS Pharmaceuticals Pty. Ltd. v. Ajantha Pharma Ltd. 2009 (41) PTC 234 (Mad). P. 645
Labour Law
Dismissal-Under the A. P. Civil Services (Classification, Control and Appeal) Rules, 1963, could an order of dismissal against an errant employee passed by an authority superior to the appointing authority be set aside on the ground that it deprived the employee's right of appeal?--Government of A. P. v. N. Ramanaiah 2009 IV LLJ 621 (SC). P. 646
Sales tax and VAT
Exemption-Can exemption granted to new industrial units of medium and large scale for a period of seven years as a policy decision of the Government to extend promotional support to new ventures be denied to an industry which had started its commercial production nine months prior to the cut-off date?--Pepisco India Holdings P. Ltd. v. State of Kerala [2009] 24 VST 67 (SC). P. 647
Miscellaneous
Tender-Work of setting up electrical transmission-Is a company justified in challenging the refusal to award contract to it on the ground that it lacked the necessary technical expertise when it had surveyed, optimised tower locations, erected and strung with tension stringing equipment which were sufficient proof of its requisite technical experience to be eligible for the contract?--Electrical Manufacturing Co. Ltd. v. Power Grid Corporation of India Ltd. [2009] AIR 2009 SC 3001. P. 647
Digest of decisions of Tribunal and other Forums
Central Excise & Customs
Merchant Overtime charges-Would an appeal be maintainable against the order of short-paid MOT charges?--CCE v. Wolkem India Ltd. 2009 (238) ELT 370 (CESTAT-Delhi). P. 648
National Calamity Contingent Duty (NCCD)-Could exemption from payment of National Calamity Contingent Duty be claimed on captively consumed items of manufacture?--Paras Petrofils Ltd. v. CCE 2009 (237) ELT 367 (CESTAT-Ahmedabad). P. 649
Income-tax
Business income-Could the provisions of section 50C of the Income-tax Act be invoked on the sale consideration received on sale of two flats by the assessee-company, involved in the business of construction of residential flats, and which was treated as business income?-Inderlok Hotels Pvt. Ltd. v. ITO [2009] 318 ITR (AT) 234 (Mumbai). P. 650
Service tax
Business Auxiliary Services-Does the activity of maintenance of roads, toll booths and collection and remittance of toll amount, amount to Business Auxiliary Services?--PNC Construction Co. Ltd. v. CST 2009 (15) STR 42 (CESTAT-Delhi). P. 651
Clearing and Forwarding Agent service-Valuation-Where the gross amount charged is inclusive of service tax, would the cum-tax benefit be available for the period before insertion of Explanation 2 to section 67?--Abirami Associates v. CCE 2009 (14) STR 801 (CESTAT-Chennai). P. 651
Consumer Disputes
Banking-Where a credit-card holder dies before paying his dues on the card, leading to cancellation of the card, would the life insurance offered by the card continue to be valid?--Kavita Sharma v. American Express Bank Ltd. IV [2009] CPJ 203 (NC).P. 652
Interest-Upon cancellation of a booking for a flat, would not refunding the amount as per the terms of the agreement amount to deficiency in service on the part of the seller under the Consumer Protection Act, 1986?--DLF Commercial Developers Limited v. Ravinder Zutshi IV [2009] CPJ 163 (NC). P. 652
STATUTES
Summary of recent statutory changes
Commercial Law
Securities and Exchange Board of India
Securities and Exchange Board of India Act, 1992-Market access through authorised persons-Ref. MIRSD/DR-1/Cir-16/09, dated November 6, 2009. P. 653
Special Economic Zones
Special Economic Zone Authority Rules, 2009-Coming into force-Notification G. S. R. 811(E), dated November 11, 2009 P. 653
Direct Taxes
Income-tax Act, 1961-Applicability of provisions under section 194J of Income-tax Act, 1961, in the case of transactions by the Third Party Administrators (TPAs) with hospitals, etc.-Circular No. 8 of 2009, dated November 24, 2009 P. 653
Income-tax Act, 1961-Authorities to issue authorisation-Notification No. S. O. 2879(E), dated November 11, 2009 P. 655
Income-tax (Dispute Resolution Panel) Rules, 2009-Coming into force-Notification No. S. O. 2958(E), dated November 20, 2009 P. 655
Indirect Taxes
Foreign Trade
Handbook of Procedures Vol. 1-Para 4.21 Amended-Public Notice No. 15 (RE-2009)/2009-14, dated October 27, 2009 P. 655
Service Tax
Finance Act, 1994-Exempts the taxable service during the course of manufacture of parts of cycles or sewing machines-Notification No. 42/2009-ST, dated November 12, 2009 P. 656
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