In the instant case, the appellant was a secured creditor. It had the claim for Rs. 500 and above. The creditor also pleaded, the company was insolvent and unable to pay its debts. The appellant also claimed, it was just and equitable that the company should be wound up. The above pleas could only be resisted by the company once they would raise the bona fide dispute meaning thereby, if the creditor has an admitted claim it must be paid, in default that could only be resisted by raising a bona fide dispute. In the instant case, creditor could prove that it had a claim. From the pleading, it would hardly appear that the company could dispute, far to speak of bona fide, that could resist a winding up petition. The Judge did not advert to the said issue.
In the present case there was no prior intimation of the proposed action of adjusting the amount of refund due to the assessee towards any other amount due from the assessee. It was an intimation informing the appellant that the amount of refund due for the assessment year 1997-98 stood adjusted against the outstanding demand for the assessment year 1995-96. It would not be same thing as a prior intimation of the proposed action. As the adjustment of the refund amount was made without following the provisions of section 245 and without giving a proper intimation the same was bad in law. The provisions of section 245 being mandatory in nature, any action taken contrary to such provision would be bad in law.
It is well settled in law that a tax withholding liability is a vicarious liability, as a part of tax collection mechanism, in the sense that when there is no primary liability of the taxpayer, proxy liability of the tax deductor also does not survive. In a situation like the one, we are in seisin of, in which the CBDT itself accepts that there is hardly any primary tax liability of the recipients of income.
It is not disputed by the assessee that the return of income was filed beyond the time limit prescribed by section 139(1) and even section 139(4). Under sub-section (4) of section 139 the assessee ought to have filed the return on or before 31-3-2000. However, the return was filed only on 10-10-2000. Under general principles, a refund of taxes can be granted only where the return of income is processed under section 143(1) or an assessment is made under section 143(3) after inquiry.
The Kerala High Court upheld the demand of VAT by holding that Trade Mark is goods and Royalty received from franchisees for use of its trademark and for sharing business know-how is leviable to VAT.
Whether on the facts and in the circumstances of the case, the ITAT is correct in law in deleting the interest charged u/s 234B and 234C while computing income u/s115JB without appreciating the facts that the said section specifically state that all provision of the Act shall apply to the assessee being company mentioned in the said section and therefore section 115J of the Act is no more available for the assessee for delaying the payment of advance tax in view of the insertion of section 115JA 115JB in the Act.
The documents have been perused. The CLB has noted the mismatching in the questioned and the admitted signatures yet on a perusal of the same and the submission of the learned counsel for the respondent which is to the effect that the signatures of a person do vary at different points of time which submission is not out of context.
It is not disputed that there was an agreement to sell between the assessee and M/s Shinestar Buildcon P Ltd. and in terms of the agreement the assessee received Rs. 18 crores as earnest money. Subsequently, the said earnest money was forfeited by the assessee and the same was claimed as capital receipt.
In the present case, the sole and dominant nature of the activity is education and the Petitioner exists solely for the purposes of imparting education. An incidental surplus which is generated, and which has resulted in additions to the fixed assets is utilized as the balance-sheet would indicate towards upgrading the facilities of the college including for the purchase of library books and the improvement of infrastructure.
It is well established in law that no one can act in judicial capacity if his conduct gives ground for believing that he cannot act with an open mind or impartially. In the present case, we have a reasonable apprehension that the A.O. who has passed the impugned order does not have open mind and, therefore, cannot pass order impartially.
