Moreover, this Appeal is filed from an order rejecting a Misc. Application for rectification. An appeal from an order dismissing a Misc. Application for rectification is not maintainable as held by this Court in the matter of Chem Amit v/s. ACIT reported in 272 ITR 397.
The objection of the Revenue that the deduction under Section 80IA(4)(iii) of the Act is available to an industrial park only on CBDT notifying the industrial park under Rule 18C of the Income Tax Rules, 1962 (‘the Rules’ for short). This the CBDT did only on 5th June 2006. Therefore, according to the Revenue the benefit of Section 80IA of the Act in terms of sub-section (4)(iii) thereof would be available as from Assessment Year 2007-08 and not earlier.
The grievance of the revenue is that the mistake ought to have been rectified by filing a revised return of income. The Tribunal held that the time to file a revised return had expired. In any event, it is not disputed that it was a bonafide mistake on the part of the respondent-assessee. In that view of the matter, imposition of penalty was not warranted.
A petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under sub-section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of sub section (1).
Though recognising that the company court (now CLB) would be the court of exclusive jurisdiction for applications for rectification of register of members, it is held that if the issues arose whether the plaintiff was the owner of the shares, whether there was fraud or forgery or there was dispute on the very title of the shares, those issues would be beyond the jurisdiction of the company court and would have to be decided by the civil court. This would be upon the issues that arise in an application. It may be mentioned that an issue arises when a material fact is alleged and disputed. Hence, mere mention of fraud may not take the matter out of the exclusive jurisdiction granted by the statute to the CLB, but when the “very title to the shares” is challenged and the court sees that that is at least prima facie shown, the civil court’s jurisdiction would not stand barred.
It is an admitted position that under the provisions of Section 391 the Central Government and the IT Authority do not have any powers to intervene or to be heard on any scheme which is filed seeking sanction of this Court u/s 391 of the Companies Act. This question was considered and decided by the learned Single Judge in case of Jindal Iron & Steel Ltd. (supra) and in the case of AVM Capital Services (P.) Ltd. (supra).
Apex Court has observed in Ajantha Industries (supra) is that while transferring the case on the ground of co-ordinated investigation, some reason has to be given by the commissioner which reveals why it is necessary to transfer the case for the purpose of co-ordinated investigation. In our view unfortunately Commissioner of Income Tax apart from stating that case has been transferred for co-ordinating investigation has not given any other reason. Impugned order is therefore quashed and set aside.
For these reasons, we have come to the conclusion that the Petitions would have to be allowed. We accordingly allow the Petitions by quashing and setting aside the notices under section 148 of the Income-tax Act, 1961 purporting to re-open the assessment for A.Ys. 2005-06, 2006-07, 2007-08 and 2008-09. Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
The case of the revenue is that the respondent assessee is not entitled to concessional rate of tax provided in Article 12 of DTAA on the ground that it is not the beneficial owner of the musical tracks in respect of which the royalty income was earned. Thus, not entitled to concessional rate of tax at 10% under DTAA as held by the Assessing officer.
Unless the Assessing Officer assesses the income with reference to which he had formed a reason to believe within the meaning of Section 147 of the Act, it would not be open to him reassess or assess any other income chargeable to tax which has escaped assessment and comes to his notice in reassessment proceedings. In this case, admittedly the ground on which reassessment notice under Section 148 of the Act was issued was dropped while passing the reassessment order dated 27.03.2006 under Section 143(3) read with Section 147 of the Act. Thus, in view of the decision of this court in the matter of Jet Airways (I.) Ltd. (supra), no occasion to entertain the proposed question of law arises.
