top-up
BS
Calling it a tax on foreign direct investment, Shell India moved the Bombay High Court in April last year. The court rejected the tax department’s argument that the Shell case was distinguishable from Vodafone’s case, which won a similar reprieve in October.
“The Shell India case is significant. It follows the earlier Vodafone judgment — the principle being that issuance of shares by an Indian company to its foreign parent is not exigible to transfer-pricing provisions, as there is no income arising therefrom,” said Mukesh Butani, managing partner of BMR Legal, which represented Shell India.
The Bombay High Court judges, M S Sanklecha and S C Gupte, set aside the tax department’s order over jurisdiction and did not get into the valuation of the shares.
BL
A unique blend of judicial virtues
itatonline
ICL
Revisiting penalty clauses in contract
itatonline
PREV.
BAR & BENCH (a
quick peep, out of sheer curiosity)
http://www.barandbench.com/content/212/justice-rm-lodha-and-justice-bs-chauhan-%E2%80%9Csupreme%E2%80%9D-court#.VExm_RYUq50
< Read Comment by MEHER, et al (For a bird's eye view, even if not believed to be from a 'legal eagle')
< Read Comment by MEHER, et al (For a bird's eye view, even if not believed to be from a 'legal eagle')
http://www.barandbench.com/content/212/president-bar-association-chief-big-family-arun-sharma#.VExnTBYUq50
Update
BL
Dec 19
Passage of crucial Bills uncertain
Dec 5
No Fear Shakespeare:
The Merchant of Venice: Act 4 ...
<<<<<<
TAXMANN DAILY
SC: 'BIFR' is sole authority to decide whether a sick company can be moved out of its jurisdiction
Cross Refer (to reconcile)>
ICL
< Section 22 (1) provides that “Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding, anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.” >
Update
BL
Dec 19
Passage of crucial Bills uncertain
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Dec 5
Supreme Industries Ltd vs. ACIT (Bombay High Court) on itatonline.org!
Impromptu (personal view)
A well reasoned judgment, more founded, rightly so to fit
into our modern times, on sound principles of natural justice, as opposed to
strict ‘legality’ or ‘THE LETTER’ but de hors “THE SPIRIT” of the law. May be,
this is an instance in which the judiciary has chosen to be aided by the
not-so-familiar Rule of “Updating Construction”
In a manner of speaking, the long standing soulful
lamentations of a law legend, in the person of N A Palkhivala, are reflected in
reported judgment.
To quote : –
“ The bewildering complexity of tax laws is coupled with
the hyper-technical spirit in which the laws are being administered. The words,
“the letter killeth” should be inscribed over the portals of every income-tax
officer”.
To add: SHOULD THAT, PERHAPS, NOT BE SO INSCRIBED ALSO
OVER THE PORTALS OF THE DRAFTSMEN OF OUR LAWS!
To Re quote:
” LORD REID, A NOTED JURIST OF YESTER YEARS, REFERRING TO
A CERTAIN STATUTE, SAID THAT HE FOUND IT IMPOSSIBLE ”TO DISCOVER OR EVEN
SURMISE WHAT THE DRAFTSMAN CAN HAVE HAD IN MIND.”
(Source: Nani’s published speeches/ articles)
>>>>
<<<<<<
TAXMANN DAILY
| Taxmann Daily | |||||||||||||
| A Tax & Corporate Laws Daily | |||||||||||||
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SC: 'BIFR' is sole authority to decide whether a sick company can be moved out of its jurisdiction
[2014] 51 taxmann.com 368 (SC)
SUPREME COURT OF INDIA
Ghanshyam Sarda
v.
Shiv Shankar Trading Co.
ANIL R. DAVE AND
Uday Umesh Lalit, JJ.
Civil Appeal Nos. 10221 to 10226 of 2014
Contempt Pet. (C) Nos. 338 and 375 of 2014
Contempt Pet. (C) Nos. 338 and 375 of 2014
NOVEMBER
13,
2014
< .......The aspects of revival of such company being
completely within its exclusive domain, it is the BIFR alone, which can
determine the issue whether such company now stands revived or not. The
jurisdiction of the civil court in respect of these matters stands completely
excluded.
29. Insofar as the recovery of money is concerned,
the matter is completely covered by Section 22(1) of the Act. The language
employed in Section 22(1) of the Act refers to the entirety of the period
beginning from the inquiry under Section 16 till the implementation of
sanctioned scheme for revival. Section 22(1) bars any suit for recovery of
money or for the enforcement of any security against the industrial company
without the express consent of the Board....>
Cross Refer (to reconcile)>
ICL
Posted: 23 Nov 2014 04:08 AM PST
[The following post is contributed by Prachi Narayan of Vinod Kothari & Company. She can be contacted at prachi@vinodkothari.com]
.... KSL Industries Ltd vs. Arihant Threads Ltd on October 27, 2014 finally settled the position of law over the vexed issue of precedence of two special enactments, the Sick Industrial Companies (Special Provisions) Act, 1985 (“SICA”) and the Recovery of Debt Due to Banks & Financial Institutions Act, 1993 (“RDDBFI”).
.... KSL Industries Ltd vs. Arihant Threads Ltd on October 27, 2014 finally settled the position of law over the vexed issue of precedence of two special enactments, the Sick Industrial Companies (Special Provisions) Act, 1985 (“SICA”) and the Recovery of Debt Due to Banks & Financial Institutions Act, 1993 (“RDDBFI”).
< Section 22 (1) provides that “Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding, anything contained in the Companies Act, 1956 (1 of 1956) or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority.” >
BS
Calling it a tax on foreign direct investment, Shell India moved the Bombay High Court in April last year. The court rejected the tax department’s argument that the Shell case was distinguishable from Vodafone’s case, which won a similar reprieve in October.
“The Shell India case is significant. It follows the earlier Vodafone judgment — the principle being that issuance of shares by an Indian company to its foreign parent is not exigible to transfer-pricing provisions, as there is no income arising therefrom,” said Mukesh Butani, managing partner of BMR Legal, which represented Shell India.
The Bombay High Court judges, M S Sanklecha and S C Gupte, set aside the tax department’s order over jurisdiction and did not get into the valuation of the shares.
BL
A unique blend of judicial virtues
Justice
Krishna Iyer, who enters his hundredth year today, took the Supreme
Court in a new direction while evolving radical principles
20 comments
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itatonline
Madras Bar Association vs. UOI (Supreme Court – Constitution Bench)
>Lawyers oppose draft bill on Legal Practitioners Act - The ...
www.thehindu.com › Cities › Vijayawada
<> It is worth recalling and drawing keen attention to
the following matters given publicity long ago:
 |
|
|
So far as is known, there has been no further development
, notably significant at that, to move forward determinately on the lines
then envisaged .
May be, the new law minister will do well to give the
topmost priority that deserves, in the interests of the legal fraternity, more
importantly of the tax 'clients' and the Revenue as well.
The referred matter, no need to specially add, has
assumed greater priority than hitherto, rather the utmost urgency. in the
aftermath of the SC 5 member-bench verdict in re.
>Lawyers oppose draft bill on Legal Practitioners Act - The ...
www.thehindu.com › Cities › Vijayawada
ICL
Revisiting penalty clauses in contract
Penalty, as a legal concept, more so according to well settled
position in law in India, connotes, -
Ø
“A punitive measure that the law imposes for the performance
of an act that is proscribed, or for the failure to perform a required act.
Ø
Penalty is a comprehensive term with many different meanings.
It entails the concept of punishment—either corporal or pecuniary, civil or criminal—although
its meaning is usually confined to pecuniary punishment. The law can impose a penalty,
and a private contract can provide for its assessment. Pecuniary penalties are frequently
negotiated in construction contracts, in the event that the project is not completed
by the specified date.” (PER FREE DICTIONARY)
Back home, that such is the long accepted proposition may
be found categorically endorsed by the judiciary in, eminently so, not only tax
cases, but also in civil or common law disputes.
With the foregoing in the backdrop, the write-up
discussing the court cases decided under the foreign law, one strongly feels, ought not to
be considered to even remotely suggest to be taken as a guide for domestic
purposes.
itatonline
Monthly (June 2014) + Consolidated (Jan to June 2014) Digest Of Imp Case Laws
PREV.
<(3) In case of taxing statutes, in the absence of the
provision by itself being susceptible to two or more meanings, it is not
permissible to forgo the strict rules of interpretation while construing it. It
was not open to the DRP to seek aid of the supposed intent of the Legislature
to give a wider meaning to the word ‘Income';>
< 9) W.e.f. 1 April 2013, the definition of income u/s 2(24)(xvi) includes within its scope the provisions of s. 56(2) (vii-b) of the Act. This indicates the intent of the Parliament to tax issue of shares to a resident, when the issue price is above its fair market value. In the instant case, the Revenue’s case is that the issue price of equity share is below the fair market value of the shares issued to a non-resident. Thus Parliament has consciously not brought to tax amounts received from a non-resident for issue of shares, as it would discourage capital inflow from abroad.>
TG
NB: Each one of the grounds on which the court has concluded in asses see's favor calls for a critical analysis; albeit, even if done so, one's intuitive / gut feeling is, the conclusion reached could possibly be no different but might be in assessee's favor..
Consider : Real x Unreal 'income' - Is not the very concept of unreal income an oxymoron to the legislation on TR
To be precise, at the grassroots of TRP, the philosophy is to tax 'unreal income'
The TRP legislation has been conceived of and thrust upon, wholly on the excuse of global practice, knowing fully well that it it is fundamentally an unscientific theory, making a mockery of the constitutional principle of taxing 'income', only if it has the basic characteristics ; never taxing a 'no income', in the sense that never accrued or arose or received to/by taxpayer.
is there any taker (s) willing to embark on such a study ?!
< 9) W.e.f. 1 April 2013, the definition of income u/s 2(24)(xvi) includes within its scope the provisions of s. 56(2) (vii-b) of the Act. This indicates the intent of the Parliament to tax issue of shares to a resident, when the issue price is above its fair market value. In the instant case, the Revenue’s case is that the issue price of equity share is below the fair market value of the shares issued to a non-resident. Thus Parliament has consciously not brought to tax amounts received from a non-resident for issue of shares, as it would discourage capital inflow from abroad.>
TG
 |
ca.devkumarkothari@gmail.com
<<<<
ca.devkumarkothari@gmail.com
Capital Gain or Business Income - Practical Issues with case laws
Sec 50C Not Apply to Transfer of FSI & TDR
Classfication of Shares when all such shares been bought in regular course ...
Detailed Analysis- Gifts Taxation under Income Tax Act, 1961
Computation of Capital Gain - Advance Money Received, Slump Sale &
- See more at: http://taxguru.in/income-tax-case-laws/tp-adjustment-issue-shares-price-alp-fmv.html#sthash.BmbrZF5V.dpuf
Related !
Whether amount received by the company on issue of equity shares to its holding company, a non-resident entity can be considered as income
ca.devkumarkothari@gmail.com
· Computation of Capital Gain - Advance Money Received, Slump
Sale & - See more at:
Whether amount received by the company on issue of equity shares to its holding company, a non-resident entity can be considered as income
NB: Each one of the grounds on which the court has concluded in asses see's favor calls for a critical analysis; albeit, even if done so, one's intuitive / gut feeling is, the conclusion reached could possibly be no different but might be in assessee's favor..
Consider : Real x Unreal 'income' - Is not the very concept of unreal income an oxymoron to the legislation on TR
To be precise, at the grassroots of TRP, the philosophy is to tax 'unreal income'
|
The TRP legislation has been conceived of and thrust upon, wholly on the excuse of global practice, knowing fully well that it it is fundamentally an unscientific theory, making a mockery of the constitutional principle of taxing 'income', only if it has the basic characteristics ; never taxing a 'no income', in the sense that never accrued or arose or received to/by taxpayer.
is there any taker (s) willing to embark on such a study ?!
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