Jurisprudentiol – Wednesday's cases

By Vijay Kumar

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Vivisection of contract – Writ petition by intervener against CESTAT LB in 2010-TIOL-646-CESTAT-DEL-LB – Clarification on 46th Amendment to Constitution – High Court in writ proceedings does not clarify a provision in vacuum. No writ on a reference matter – High Court

AS far as the clarification for 46th Constitution Amendment is concerned, we cannot dwell upon the said issue unless an issue directly would arise for interpretation of the same, for the simple reason the Court in the proceedings under Article 226 of the Constitution does not clarify a provision in the vacuum; when petitioner was just an intervener and has come up to challenge the order passed by the Special Bench, if it is entertained, , the same would enable every litigant to challenge the order passed in a reference.

Income Tax

Sec 40(a )( ia ) - Is AO right in disallowing expenditure if TDS is deposited before due date of filing ITR ? - NO, says ITAT

THE issue before the Tribunal is - Whether disallowance u/s 40(a )( ia ) is warranted if TDS is deposited before the due date of filing of ITR . Whether the AO is right in making the comparison between the freelance agents and the director to disallow the commission payable to directors u/s 40A ( 2)(b) of the Act and holding the commission as excessive. NO is the answer of the Tribunal.

Customs

Unjust enrichment - mere deposit of some money made upon detection by Revenue is not immune from scrutiny of unjust enrichment when refund is claimed - fraud nullifies everything - CESTAT

THIS is a long story covering a span of 17 years. The modus operandi adopted by the appellant shows that on detection by search party the appellant came forward to make some deposit having made breach of law. Had the investigation not done, the appellant would have been unjustly enriched at the cost of Revenue. The appellant without proving its claim to be bonafide with cogent evidence made its conduct questionable.

Moral of the Story: Never deposit any money during investigation. Wait for the Adjudication Order.

See our columns tomorrow for the judgements