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Section 179(1) provides for a vicarious liability of the director of a public company for payment of tax dues which cannot be recovered from the company. However, such liability could be avoided if the director proves that the non recovery cannot be attributed to any gross negligence, misfeasance or breach of duty on his part in relation to the affairs of the company.
The giving of reasons in support of their conclusions by judicial and quasi-judicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious, unfairness or arbitrariness in reaching the conclusions. The very search for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion.
Assessee has duly disclosed the gifts and there was no concealment in this regard. Only the assessee has failed to produce the alleged donor that the penalty has been imposed. I further find that section 271(1(c) of the Act postulates imposition of penalty for furnishing of inaccurate particulars and concealment of income.
The only other issue is against the decision of the learned CIT(A) for treating sum of Rs. 1,37,49,302 being payment of living allowance by the Indian company to expatriates as fees for technical services in the hands of the appellant. The facts apropos this issue are that the experts of the assessee deputed for rendering services to HME and HCM received living allowances as per the agreement entered into between the assessee and HME and HCM. The Assessing Officer included this amount in fees for technical services and assessed it accordingly. No relief was allowed in the first appeal.
Provisions of Section 10A are beneficial provisions; the explanation given by the CBDT in Circular No.697 dated 23.11.1999 entitling the assessee to the benefits of S.10A; and also the legal position that the Act has not restricted the assessee from outsourcing of certain services necessary for producing an article or a thing, say, web maintenance in this case, assessee should be held as eligible for relief under S.10A of the Act.
A Joint meeting of CBEC and CBDT was held on 10th Oct., 2012, under the Convenorship of Chairperson, CBDT regarding appropriate steps to be taken for recovery of taxes due from M/s. Kingfisher Airlines Ltd. (KFA). It was informed that the Karnataka High Court vide order dated 26-9-2012 have restrained the Department from making further recovery and have permitted KFA to operate their accounts. As a result, the Income Tax Department has lifted the attachments of various bank accounts of KFA.
It is seen from the material on record that there is no contract of employment between the assessee-company and non-whole time directors. They were also not paid any fixed remuneration. The Board’s resolution dated May 15, 2002, which has been extracted in the impugned order of the Commissioner of Income-tax (Appeals) provides for payment of remuneration/ commission not exceeding one per cent.
The Assessing Officer has been entrusted the role of an investigator, prosecutor as well as adjudicator under the scheme of the Income-tax Act. If he commits an error while discharging the aforesaid roles and consequently passes an erroneous order causing prejudice either to the assessee or to the State Exchequer or to both, the order so passed by him is liable to be corrected.
There was no enquiry by the Assessing Officer on the issues raised by the CIT in his order u/s. 263 of the Act. The lack of enquiry or inadequate enquiry by the Assessing Officer could be very much reason for assuming jurisdiction u/s. 263 of the Act.
ITAT has chosen to disregard the plea of the Revenue for further investigation into the matter though there was sufficient material, which was referred to by the Assessing Officer, to suspect the motives of the assesses in claiming such huge expenditure by way of interest under Section 57(iii) of the Act.
