LATIN DICTIONARY - PROVERBS IN ENGLISH

Transcription

1 CONTENTS u Acknowledgement I-5 u Preface I-7 u Chapter-heads I-9 1 APPEALS AT A GLANCE 1.1 Appeals at a glance 1 2 LATIN DICTIONARY - PROVERBS IN ENGLISH u Latin Dictionary - Proverbs in English 2 3 RULES OF INTERPRETATIONS 3. The law is deemed to be what the Court interprets it to be Interpretation vs. Construction Rules of interpretations Rule of literal construction Golden Rule (Doctrine of purposive construction) Rule of harmonious construction Mischief rule of interpretation Rule of beneficient construction Rule of strict construction Rule of liberal interpretation Effect of omission of a provision Retrospective effect of amendment Rule of ejusdem generis Noscitur a Sociis Rule of EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS 21 I-11

2 CONTENTS I External aids to interpretation Rule of GENERALIA SPECIALIBUS NON DEROGANT Rule of leges posteriors priores contrarias abrogant Mimansa Rules Rule of expressio unius est exclusio alterius Legal Fiction Doctrine of Reading Down Miscellaneous 33 4 CHECKLIST 4.1 Checklist for appeal to Tribunal Points to be checked Appeal papers Annexures to be filed with Form Other things to be insured Presenting the appeal in office of Tribunal After filing appeal Check list for stay petition - Points to be checked Checklist for miscellaneous application 46 5 KEY ASPECTS OF APPEALS BEFORE TRIBUNAL 5.1 Taking decision to appeal Preparing appeal papers Appeal memo and annexure Paper book (Rule 18) Evidence and additional evidence Grounds of appeal Additional ground Comprehension of grounds of appeal Factual grounds Legal grounds Jurisdictional ground Jurisdictional ground can be raised at any time Ground of delay 56

3 I-13 CONTENTS Ground of year of taxability Ground of amendment in law Ground as to taxable entity Ground as to validity of search before Tribunal Mixed ground of fact and law Violation of principles of natural justice Inadequate hearing Personal bias Non-speaking order Non-application of mind Ground on onus of proof Grounds relating to notice Validity of notice Notice not served Notice served beyond period of limitation Other Grounds Of capital or revenue Of bona fide and reasonable belief Of defence on counsel s opinion Of defence on equitable grounds Of accepted grounds of equity Additional ground By leave of Tribunal Admit and decide Admit and remand No time limit for raising Decline to admit Once admitted can be refused at final hearing Relief not restricted to the plea taken Other points concerning admission of new/additional grounds Reading and reliance on a judgment Conflicting decisions - How to deal with Grounds for rejection of accounts and estimation of profit Upheld Rejected Grounds for estimate of amount of profit 81

4 CONTENTS I Adjournment Arguing a case Duties of authorised representatives Reply by respondent Counter reply Restoration of appeals decided ex parte Other applications to Tribunal Application for intervention Application for early hearing of appeal Application for transfer of appeal Application for transfer of jurisdiction over assessment For hearing with connected appeal On alleged bias Application for certified copies Application for inspection of the records of the Tribunal Application to block appeals 90 6 EVOLUTION OF APPELLATE TRIBUNAL 6.1 Backdrop Objective Civil Court Prohibition Insurgence of Tribunal Initial Stage of Tribunal Expansion & Turbulences 95 7 REPRESENTING THE APPEAL 7.1 Authorising a representative to appear Defined in ITAT Rules, Defined under Income-tax Act, Departmental representatives Representatives in general Duties of a Representative 107

5 I-15 CONTENTS 7.7 Duty conflict between client and court Duty conflict between the client and the society Duty conflict between him and the profession Lawyer as a Director SECTION 252 : APPELLATE TRIBUNAL 8. Statutory provisions Sub-section (1) Central Government shall constitute An Appellate Tribunal Consisting of as many judicial and accountant members As it thinks fit To exercise the powers And discharge the functions Conferred on the Appellate Tribunal by this Act Sub-section (2) : A Judicial Member Section 253(2A) : An Accountant Member Sub-section (3) : President of the Tribunal Sub-section (4) : Vice-President(s) Sub-section (4A) : Senior Vice-President Sub-section (5) : Delegation of Powers APPEAL TO THE APPELLATE TRIBUNAL 9. Statutory provisions Sub-section (1) : Appeal by whom and against what (Appeal by) any assessee Sub-section (2) : Appeal by revenue The Commissioner may (file an appeal) If he (CIT) objects to To any order passed by a DCIT (Appeal) or As the case may be, a CIT (Appeals) (Order) under section 154 [by CIT(A)] Or Order under section 250 by CIT(A) 139

6 CONTENTS I Commissioner may Direct Direct AO to Appeal to Appellate Tribunal Monetary Limitation for Departmental Appeals Against the Order [of DCIT(A) or CIT(A)] Sub-section (2A) : DRP Directions Appeal by Revenue Section 253(3) : Time limit to appeal Time limit of 60 days Of order communicated Proviso curtailing time limit Section 253(3A) : Time limit for DRP appeals Section 253(4) : Cross Objection Assessing Officer or the assessee On receipt of notice of appeal Notwithstanding appeal by him Time limit File cross-objection as verified in prescribed manner Against any part of appealed order Disposal of CO as if an appeal Section 253(5) : Condonation of delay Delayed filing of appeal and cross objection On satisfaction of sufficient cause for delay Section 253(6) : Appeal form and fee Form of appeal Specified fee Fee for revenue appeals and for C.O Section 253(7) : Fee for stay application ORDER OF APPELLATE TRIBUNAL 10. Statutory Provisions Sub-section (1) : Order on appeal The Appellate Tribunal may After giving both the parties to the appeal an opportunity of being heard Pass such orders thereon (Pass any order) as it thinks fit 184

7 I-17 CONTENTS Power to admit additional evidence On validity of search Judicial Discipline and Appellate Tribunal Exceptions Decision of High Court Decision of Tribunal Conclusions Section 254(2) : Rectification of Appellate Order Suo motu rectification by Tribunal Parties invoked rectification Mistake apparent from record Non-consideration of a decision of Supreme Court/ Jurisdictional Court Tests of mistake apparent Power to rectify and review Supreme Court decision in Perfetti Van Melle India (P.) Ltd DTC provision Hearing to assessee Fee Limitation period for rectification Section 254(2A) : Time limit for deciding appeal Early disposal of cases Power to stay Section 254(2B) : Cost of appeal Statutory provision of the section Provision in Rules Assistance of CPC Rules Object of awarding costs Broad classification of objects Cost award is a discretion Scope - Little more in details No cost cases Circumventing orders of court Section 254(3) : Copy of order Section 254(4) : Finality of Appellate Order 228

8 CONTENTS I PROCEDURE OF APPELLATE TRIBUNAL 11. Statutory Provisions Section 255(1) : Powers & functions Exercise of powers and discharging functions of Tribunal Want of necessary pleas Statement to be relied upon Section 255(2) : Bench of Tribunal Division Bench Section 255(3) : Single Member & Special Bench Single member cases Bench Special Bench President may, for the disposal of any particular case, constitute a Special Bench Constitution of Special Bench (Special Bench) Consisting of three or more members One of whom shall necessarily be a judicial member and one an accountant member Section 255(4) : Reference to Third Member Third Member Bench If the members of a Bench differ in opinion on any point The point shall be decided according to the opinion of the majority, if there is a majority But if the members are equally divided, they shall state the point or points on which they differ And the case shall be referred by the President of the Appellate Tribunal for hearing on such point or points by one or more of the other members of the Appellate Tribunal And such point or points shall be decided according to the opinion of the majority of the members of the Appellate Tribunal who have heard the case, including those who first heard it Additional evidence at the stage of Third Member Inter se value of Third Member, Special Bench & Division Bench Section 255(5) : Procedure Subject to the provisions of this Act 246

9 I-19 CONTENTS The Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof In all matters arising out of the exercise of its powers or of the discharge of its functions Language of Tribunal Form of Appeal Respondent in Appeal Verification and Signing of Appeal Defective Memorandum of Appeal Abatement of appeal Functioning of the Benches Hearing Adjournments Awarding cost Authorisation by CIT Including the places at which the Benches shall hold their sittings High Court Writing of order Setting aside and remanding the matter Awarding cost Recall of ex parte Order Bench Decision Pass no order on protective basis No order of enhancement Tribunal cannot dismiss appeal for default Representation before Tribunal Dress Code Communications addressed to the Tribunal Written submissions before the Tribunal Departmental representation Limitations of Tribunal Limited as to appellate jurisdiction Limited as to the subject matter of the appeal Restricted to the year under appeal Cannot deal with vires of a provision 266

10 CONTENTS I Limited as to power to assessment and not to enhance Limited as to disposal of appeal on merits Judicial proceedings Tribunal is quasi-judicial body Civil Court Power to punish for its contempt E court filing and hearing of appeals MONETARY LIMIT FOR FILING APPEAL 12. Statutory provision Analysis of provision Instructions Instruction No. 3/2011 [F. No. 279/Misc. 142/2007-ITJ], dated Letter No. DIT(L&R)-I/SLP/393/2011/4589, dated Instruction No. 5/2008, dated Instruction No. 5/2007, dated Instruction No. 2/2005, dated Instruction No. 5/2004, dated Instruction No. 19/2003, dated Instruction No. 6/2003, dated Instruction No. 1985, dated Instruction No [F. No. 279/126/98-IT], dated Instruction No. 1903, dated Instruction No. 1777, dated Judicial analysis SMILE AND LAUGH 1. Advice Advocate Contingency fee Four stage collection of fee Court hearing Cross Examination Discretion 319

11 I-21 CONTENTS 8. Dread of law Equity Ethical question Facts Good lawyer - Great lawyer Government Hiding contempt Hourly Billing Ignorance of law Income Interpretation Intimidating questioning Justice Knowledge Law Leader Liberty Need of a lawyer Open the brief for fee Presence of Counsel Right to silence Who knows law? Witness Win or lose Wife Hunting Lotus & Hand Husband & Wife Teacher & Student Doctor & Lawyer Knowledge & Wisdom Optimist & Pessimist Punctuation Litigant Loss Love Marriage 327

12 CONTENTS I Mind Mistake Money Obedience Parliament Power Professional Profits Property Question Results Retirement Right Risk Rules Say Speech Statutory Law Success Tax Payers Taxation Taxes Time Tools of Trade Trial & Error Truth 331 APPENDICES APPENDIX A : Relevant sections of Income-tax Act, APPENDIX B : Relevant Rules and Forms of Income-tax Rules, APPENDIX C : Income Tax (Appellate Tribunal) Rules, APPENDIX D : Circulars and Clarifications 399