Case Law Details

Case Name : Praveen Saxena Vs JCIT (ITAT Delhi)
Appeal Number : ITA No.601/LKW/2011
Date of Judgement/Order : 05/11/2014
Related Assessment Year :

The factual matrix of the present case is that there was a criminal case against the assessee with an allegation of custom duty evasion and he incurred impugned expenditure of legal fees for hiring lawyers to represent his criminal case before the Hon’ble High Court and Lower Courts to get the bail order. As the assessee was arrested and sent in judicial custody by the DRI in the Custom Duty Evasion case which cannot be said to be incurred bona fidely wholly and exclusively for the purpose of business of the assessee.

It is also pertinent to mention that it is not the case of the assessee, that the assessee initiated any proceedings or prosecution to defend his business and the claimed expenditure was incurred wholly and exclusively for the purpose of business of the assessee.

The ratio of the above decisions can be summarized as follows. In the cases where assessee is able to demonstrate positively that the claimed expenditure on legal fees and proceedings is in extricably or proximately related to caring on the business of the assessee more effectively then the same shall be allowable. However, in the cases where the given or claimed expenditure on legal fees and proceedings is remotely connected or unconnected to caring on of business of the assessee, then the same may not be allowable u/s 37 of the Act. Applying this to the facts in extant case, it can be safely inferred that expenditure to defend in custom duty evasion criminal case, having no connection with caring on of business, is held to rightly disallowed by the AO and same disallowance was upheld by the CIT(A) on cogent and reasonable basis. Ergo the assessee’s contentions are jettisoned.

Per contra, we clearly observed that the assessee was arrested in Custom Duty Evasion criminal case by the DRI and the payment of legal expenses and fees to the lawyers was made to defend and to secure bail for the assessee in that case. In this situation respectfully following the decision of Hon’ble Supreme Court in the case of CIT Vs. H. Hirjee (Supra), we reach to the logical conclusion that the authorities below were right in holding that the payment of legal fees and expenses towards defending in a criminal prosecution not allowable as business expenditure because the same was not expended wholly and exclusively for the purpose of business.

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  1. dr.g. balakrishnan, phd ML says:

    for example in USA capital gains tax is charged on the basis of ‘Mills’ ie 10th of a percent and in USA there are income taxes both at fed as also at state levels that way the whole tax liability is not fully burdens the tax payer but either fed or state shares, why people are mentally strong unlike indians in India where they are taken like a sacrificial goat that way the governance is steadily failing in india in all fronts…is my view, sir

  2. dr.g. balakrishnan, phd ML says:

    Adam Smith said,
    ‘simplicity, convenience, certainty, ( uncertainties create favorable climate for tax objection or evasion if he cannot fight out powers,(certainly legal, as no legislature without sensible deliberation cannot pass any law for that could cause arbitrary legislation or cause either revolt, or evasion and the like is the purport, ‘as no legislature is divine as such’ meaning it need not necessarily be Godly! + thus compromising with tax objection surfaced is another purport of jurisdictional thought base under interpretation under natural justice principle,that led to law courts creation for judicial review, after all courts need to analyse every issue brought before them, thread bare not simply bowing to the great legislation of any government, that led to separation of powers on Montesque thought, after all history is replete with arbitrary power used by monarchs/governance and such things caused Magna Carta/Bill of rights and the like world world) equity, (every law making requires that there shall not be any element of arbitrariness in tax system after all tax system is based on a thought of voluntary compliance to help governments to maintain essential services more vitally like defense and the like.., and shows tax mechanism is not basically some quid pro but to look after the people but that tax need not be paid by every citizen but mostly by well to do essentially.. that way tax is a voluntary contribution to the exchequer), and that way tax shall be ascertainable as to what , where etc to tax need be paid emanated…

    so it is arbitrary if tribunal just bends to some so called untested law is my view however much honorary tribunal quotes any hon SC judgement after all ever judgement has two parts ..’ration decidenti’ and ‘obiter dicta’, is my view sir

  3. g.balakrishnan says:

    First whether the laws passed by governments are really legal is also another question. if the authority illegally tried to misuse the laws whether the authority could misuse the tax payers’ moneys for defending the government’s case is also a question need be considered, as mostly several authorities misuse sections for obvious reasons also need be considered.

    from the above propositions it would be clear whether government making laws under legislation or under delegated legislation is sacrosanct, is another question, that way fundamental rose in every constitution world over is a factor to be reckoned with, else the law of crimes would turn out to be a dead letter word is it not? to be considered else every authority would be totally arbitrary right from legislatures!

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