Bharti Airtel Limited, Vs. ITO(ITAT-Delhi)(17 March, 2016)

Held:The concept of exemption is distinct from the concept of deferment of tax. After the JVAT Act came into force, under the statutory provisions, there was no exemption and beneficiaries were entitled to convert to the scheme of deferment. The period remains intact, that is, 8 years. The repayment has to be done in equal six monthly instalments and that period is 5 years. The repayment commences after completion of eligibility period of deferment or the prescribed percentage limit of fixed capital investment, whichever is earlier. The prescribed authority can grant an eligibility certificate but he has to keep in view the terms and conditions stipulated in thus analysed, the irresistible conclusion is that the repayment schedule has to end on 31.08.2013 within a span of 5 years from the expiration of the eligibility period. It is argued on behalf of the assessee that it is not a case for levy of interest. Regard being had to the special features of the case and taking note of the fact that the assessee-1st respondent had already deposited the amount in pursuance of the order of Court and regard being had to the nature of litigation, court direct that the 1st respondent-assessee shall pay 12% interest per annum and the said amount shall be deposited with the competent authority of the revenue within three months. Appeal disposed of..

Judgements/Tribunals

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Vodafone Essar Mobile Services Limited Vs. Union Of India & Ors.(HC-Delhi)(9 Mar, 2016)

Held:There is no question of ‘harmonious construction’ of a CBDT Circular issued by the CBDT. At best, it is an external aid of construction of Section 201(3) and the proviso thereto. The Circular also gives an instance of contrary understanding of the legal position by the Department itself. It is well settled that if a Circular issued by the Department favours an Assessee then it should be so done even where such interpretation goes contrary to the legislative intent. Circular 5 of 2010 of CBDT clarifying that the proviso to Section 201(3) of the Act was meant to expand the time limit for completing the proceedings and passing orders in relation to ‘pending cases’. The said proviso cannot be interpreted, as is sought to be done by the Department, to enable it to initiate proceedings for declaring an Assessee to be an Assessee in default under Section 201 of the Act for a period earlier than four years prior to 31st March, 2011. The Court does not consider it necessary to address the question of constitutional validity of Section 201(3) of the Act or the proviso thereto. In any event, the Petitioners also did not press for that relief in view of the acceptance of their submission on the interpretation of the said provision by the Court. The writ petitions are allowed.

Pr. Commissioner Of Income Tax Vs. Patel Kantilal Jivramdas & Co (HC-Guj) (15 March, 2016)

Held:: As can be seen from the reasons recorded, all that is reflected therein is the opinion of the audit party that 0.5% should be considered as reasonable shortage and excess shortage should be disallowed and accordingly an excess shortage of 2.02% is required to be disallowed. It is the opinion of the audit party that excess shortage had been disallowed resulting into an underassessment to the tune of Rs.33,04,144/-. Thus, from the reasons recorded, there is nothing to disclose that the Assessing Officer has formed any opinion that income chargeable to tax has escaped assessment for the reasons recorded therein. All that the reasons recorded reflect is the opinion of the audit party. Section 147 of the Act provides that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may reopen the assessment in terms thereof. Thus, it is the satisfaction of the Assessing Officer which is necessary for reopening the assessment. In the present case, on a plain reading of the reasons recorded, it is evident that no such satisfaction has been recorded by the Assessing Officer. The Commissioner (Appeals), therefore, rightly came to the conclusion that this is a case of clear change of opinion based on conjectures and a case where the opinion was not of the Assessing Officer but clearly of the audit party. Appeal dismissed.