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II. Direct Tax Case Laws:
1. Ferrous
Infrastructure Pvt. Ltd. Vs. DCIT, W.P. (C) 5229/2014 & CM No.
10401 /2014, Date of Order: 21.05.2015, High Court of Delhi
Reasons for initiating assessment u/s 147 should be recorded prior to issuance to notice u/s 148 and not later to that.
In the
matter under consideration the the notice u/s 148 was issued on
30.08.2012 and the reasons shows to be recorded on 18.09.2013. The ld AO
submitted an impression that the date mentioned as 18.09.2013 was
incorrectly recorded. The learned counsel for the Revenue was asked to
produce the relevant file where in the reasons recorded bears the date
19.09.2012. The said date is printed. It is, first of all, inconceivable
that when a document is being typed on or before 30.08.2012 (the date
on which the notice under Section 148 was issued) that a future date of
19.09.2012 would be typed. Secondly, what is even more shocking is the
fact that the printed date 19.09.2012 has been corrected in hand to read
18.09.2012.
In other
words, if there was a mistake in the printing of the date, the same has
been corrected to read 18.09.2012. Therefore, it cannot be said that
the date mentioned in the reasons, i.e., 18.09.2012 was an inadvertent
mistake. It is evident that the notice was issued prior to the recording
of the reasons. We have seen from the provisions of Section 148(2) as
also the decisions of this Court in Haryana Acrylic, and that of the
Karnataka High Court in Baldwin Boys High School, that the reasons have
to be recorded prior to the issuance of notice under Section 148. If
they are not so recorded, then the notice under Section 148 and
proceedings pursuant thereto are without authority of law.
(Please click here for judgment)
2. CIT Vs. Shri Suresh Nanda, I.T.A. No. 715/2014, C.M. No. 19243/2014, Date of Order: 27.05.2015, High Court of Delhi
Whether
the ITAT was correct in taking the view that the period for which the
assessee was in India involuntarily on account of his passport having
been impounded is not to be counted for purposes of Section 6(1)(a) of
the Income Tax Act so as to hold him entitled to be a non-resident.
Held Yes
The
conclusion reached by us on the facts and in the circumstances of the
case at hand cannot be treated as a thumb rule to the effect that each
period of involuntary stay must invariably be excluded from computation
for purposes of Section 6(1)(a) of Income Tax Act. The view taken by us
in the case of assessee here is in the peculiar facts and circumstances
wherein he was inhibited from travelling out of India on account of such
action of the law enforcement agencies as was found to be wholly
unjustified. Here, it is important to notice that the passport
impounding order was invalidated as without authority of law. The
finding on whether in a given case an assessee’s claim to extended stay
being involuntary, has to be fact dependent. For purposes of Section
6(1)(a), each case will have to be examined on its own merits in the
light of facts and circumstances leading to “involuntary” stay, if any,
in India. His involuntary stay during the period that followed till the
passport was restored under Court’s directive, thus, must be excluded
for calculating the period under Section 6(1)(a) of Income Tax Act.
(Please click here for judgment)
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