Centre has moved the Supreme Court seeking review of its verdict on the Income Tax issue of Vodophone . The court had earlier held that the Indian Income Tax Department does not have jurisdiction to levy 11,000 crore as tax on the overseas deal between Vodafone International Holdings and Hutchison Group.
Source- News on Air
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Repitition (or plagiarism?) notwithstanding, what A Banerjee/Nisban say(s) is not very untrue. It is high time, someone tells the assessing officers how to handle cases of foreign collaborations having due regard to the stipulations and conditionalities provided for in the agreements under which the collaborating parties operate. The department officers and ITAT members alike are too wary of dealing with and delving into the facts of the case and, instead, straightaway enter into the area of laws and xaselaws, howsoever wrongly misplaced and relied upon. All this is, however, done most deliberately for pecuniary reasons so as to make it appear that the orders are written as per and having regard to the law and/or the decisions of High Courts and Supreme Court, thereby creating a facade of hard work and honesty. In actual practice, however, avoiding any reference to the salient facts of a case, including the crucial clauses in collaboration agreements (domestic or foreign) having implications of tax liability, is the established practice duly patronised by the tax payers and, in particular, the ITAT benches. [It may not be out of place to mention and suggest to the CBI and the CVC here to take up all the big cases disposed of by the ITAT which are NOT MARKED FOR PUBLICATION in the ITTD. Especially those orders made by the known corrupt ITAT members. CBI would get bucketful of cases for search!]
CBDT is a party to this masquerade too as most of these IRS officers reach the Board in some capacity or the other. In Vodafone’s case, the Supreme Court is being misunderstood by a large number of patriotic professionals and knowledgeable persons all over the country. But, what can the High Court and the Supreme Court do when the fundamental facts of the case, in terms of delineating, marshalling and analysing the clauses in the collaboration/transfer agreements, have not been brought on record by the lower authorities including the highest fact finding body, i.e., the ITAT? It is not for the High Court or the Supreme Court to go back to the original records to ascertain the true nature and character of the agreements to conclude if the transactions were colourable and if there was transfer of assets and, if so, what were the assets–other than the shares in the companies–that changed hands. How does the CBDT expect that the original work supposed/required to be done by the AO/CIT(A)/CIT will be done by the higher/highest judiciary? Is the CBDT contemplating suitable action against the erring officers who, instead of delving into the facts of the case, sought to cover their ulterior motives behind misplaces reliance on irrelelevant citations?
Nisith must have used my PC and opened up the page to click on my comments using his name when I left the machine just for a minute! The comments are mine and original.
One fervently hopes that, at least now, the departmental officers will make an attempt, though against its culture and training, to study and analyse the clauses and fine prints in the agreement(s) involved in the matter. One has a feeling that, this has never been done resulting in the fact finding authorities like the AO/CIT(A) and, of course, the ITAT, never wondering as to the the assets (other than the much talked about shares) which are the subject-matter of the agreement(s). If the lower authorities fail in their duty, bound no doubt by the unreasonable time limits in huge cases of such magnitude and coupled with the proverbial ineptitude and lack of integrity, it is no use fuming over the judicial bodies.
One fervently hopes that, at least now, the departmental officers will make an attempt, though against its culture and training, to study and analyse the clauses and fine prints in the agreement(s) involved in the matter. One has a feeling that, this has never been done resulting in the fact finding authorities like the AO/CIT(A) and, of course, the ITAT, never wondering as to the the assets (other than the much talked about shares) which are the subject-matter of the agreement(s). If the lower authorities fail in their duty, bound no doubt by the unreasonable time limits in huge cases of such magnitude and coupled with the proverbial ineptitude and lack of integrity, it is no use fuming over the judicial bodies.