Thursday, September 25, 2014

SC on National Tax Tribunal - Imp Messages >>>>

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Idiom > Upset  the Apple Cart
Origin
This allusory phrase is first recorded by Jeremy Belknap in The History of New Hampshire, 1788:
"Adams had almost overset the apple-cart by intruding an amendment of his own fabrication on the morning of the day of ratification" [of the Constitution].

 <<   

 A Constitutional Bench of the Supreme Court headed by Chief Justice R.M. Lodha (in picture),on Thursday struck down the National Tax Tribunal Act, holding it unconstitutional. File photo: S. Subramanium



SC strikes down National Tax Tribunal Act - The Hindu

 Related

National Tax Tribunal Supplementing, or substituting, High Courts?

Xtracts (2005 - Intriguing ?)


>  No Tribunal constituted under 323A or 323B of the Constitution can ever oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court (228 ITR 725 SC). The NTT will, therefore, be one more forum working along with the high court. 

>> The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall tendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue.



>>>>>
TG
Dec 12

Partiality with Tax Advocates since 1984

ICL

OECD on Public Enforcement of Corporate Governance in Asia

 http://vswaminathan-swamilook.blogspot.in/2014/10/law-and-reguations-pubic-private.html

Courses of Action Or REmedies Open

Class Action by public / segments of taxpayers 

PIL- Private / class , OR By Court (SC), Suomotu

Right To

Representation (legal; in court or other authority)

Authority x Tribunal x Court

Is IT Not A Human Right (Contractual ; POA)

On the Faith and Belief of the Rep (appointed)

Breach of trust, faith..

Case Law (Indian /Foreign)

Professionalism X Professional Ethics >>>>
<<<

TG

Shome Panel submits Second Report on Tax Administration

wprt the latest SC on NTT ACT

< Its related implications worth a study !

Legislation >

NTT Act 2005 - Ministry of Law and Justice


X Judiciary


Ind Exp

  1. Indian Express ‎- 1 day ago
    War of blunt positions ... another spectre is haunting India: chronic regulatory malfunction. ... But corruption is only a small part of the story.
XTRACTS>

The courts are from Mars and the legislature is from Venus. And the requisite dialogue to create a shared constitutional understanding is not happening.

But how many of you want to bet money that even a good-faith legislation will not be tripped up somewhere for being incompatible with some other law?

In the tax tribunal case, the Supreme Court has contended that the tribunal had not just usurped the powers of the high court, but that the methods of appointment and so forth do not conform to the norms of independence that might be required for a court-like tribunal. Fair enough. But is it clear what standard continued… continued…

https://disqus.com/home/user/venkatswami



CD
Not Unrelated THESE (in reference to THIS BLOG ?! >



Anyway THESE >
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Search Results

SEBI V IRDA – Unfolding Turf War” - TaxGuru


>>>>

Tail Piece

Ammunition ? Not to Worry (yes? Yes !)- Never ever in short supply; thanks to Producers / Suppliers (financial papers/ Column Writers) !!

ET


<> Yes? Yes!

Wprt the tax case , which presumably has reference to the verdict of SC holding the NTT Act ultra vires the constitution, that is noted to have given a fresh tall Order, this time much more energized with emotions than before, to get-set-march; and triggered a distinct type of blunt war,- albeit, in one's perspective, unwittingly- that is, with 'lawyers' lined up on one side and other professionals (i.e. mainly CAs ) on the other.
In short, the national scenario is replete/fully charged with blunt wars (of "wits" ?) from all directions.



 ET

Supreme Court quashes National Tax Tribunal Act - The ...


 Prof.T.Devidas (Bangalore)  What the Court must recognize is that tax laws seek to change the ownership and control of material resources of the community and this is reserved for the legislature and the executive by Art.39(b) and Art.37 shuts the door for the judiciary here.The Union government must seek a review of the judgement which is per-incuriam for disregarding the provisions in Articles 37, 39(b)and14.The government should invoke the provisions in Part.IV and ask the Court to keep off prohibited areas.

 For A Ready Glimpse :

DPSP - Directives Principles of State Policy - OmABC

www.omabc.com/national/constitution-of-india/frs-dpsp/dpsp/
Mar 7, 2014 - Constitution of India ... Article 39 – a) secure adequate means of livelihood for all citizens, ... But article 37 says that it shall be duty of state to apply provisions of DPSP in formulation of laws and policies. Article 31C added by 25th constitutional amendment, 1971 and include following two provisions:-.



lawmin.nic.in/olwing/coi/coi.../Const.Pock%202Pg.Rom8Fsss(7).pdf
37. Application of the principles contained in this Part.—The provisions contained in ... THE CONSTITUTION OF INDIA. 20. 39A. Equal justice and free legal aid.



itatonline

Download: NTT_constitutionality.pdf

The NTT Act “crosses the boundary” & is unconstitutional. CAs/CSs are specialists on accounts & facts and are not capable of arguing/ deciding ‘Substantial Questions Of Law


BS

Supreme Court quashes National Tax Tribunal Act


Xtract (For  Special Focus):

< A five-judge constitution Bench of the on Thursday struck down the National Tax Tribunal Act, on the grounds that it encroached upon the power of the and the principle of separation of powers.

The Act envisaged setting up a National Tax Tribunal (NTT) to take up tax-related matters of high courts so that decisions on could be expedited. The tribunal never came into being as petitions were filed against the law in courts.

The 2005 law was stuck in litigation in high courts. All cases were then transferred to the Supreme Court for a final decision. >


Q
The Full Bench has struck down the entire Act as being unconstitutional on the ground that though “tribunalization” has been allowed subject to safeguards, the NTT Act “crosses the boundary” and “encroaches the exclusive domain” of the High Courts.

The Members of the NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time. The NTT besides the aforesaid statutes, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the said provisions, from time to time. They will also have to determine in some cases, whether the provisions relied upon had a prospective or retrospective applicability. Keeping in mind the fact, that in terms of s. 15 of the NTT Act, the NTT would hear appeals from the Income Tax Appellate Tribunal and the CESTAT only on “substantial questions of law”, it is difficult for us to appreciate the propriety of representation, on behalf of a party to an appeal, through either Chartered Accountants or Company Secretaries, before the NTT....... We simultaneously hold s. 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, as unconstitutional and unsustainable in law.


  • Aside: The SC does have gone into the validity or otherwise of some of the sections in the scheme of the NTT e.g sec 13; and made certain observations (see above). Even so, if analyzed closely, the better view to take,- contrary to the one projected/being canvassed in some quarters,- will be THIS:  The validity, legal acceptability, etc. of those sections have been argued/discussed, at some length. But the court has done so, only in the course of and for deciding the principal issue ; that is, whether the proposed of NTT, has a strong foothold, as to firmly stand on, so as to  be upheld as vires the constitution. Even if perceived differently, to say that the SC has not borne in mind that once the scheme itself is struck down as ultra vires, all the rest would pale into insignificance/ are bound to fall like a pack of cards , would be, to put it in the least offensive manner, tantamount to offending the judicial intelligence.
<> The Judgment has been delivered, and particularly some of the cryptic observations therein have come to be made, not a day too soon. In one’s perspective, it has come at a very opportune and appropriate point in time. In that, to begin with and at the outset, at least selectively, the judicial view might be made a conscious note of, and full use of for guidance, by the men in governance, - no doubt, not barring the legislators,- to mindfully deliberate and decide how best , in the “larger national/societal interests”, the entire ‘legal system” , in its most comprehensive sense / all embracing meaning, could be impartially evaluated and ideally revamped. Though, of course, that should be capable of being done, in as feasible a manner as human intelligence and integrity (in profound sense) be endowed/empowered  to permit. What in any view is expected of them is that must be thought of and proceeded with, post haste, with the sole aim of restoring the fundamental ‘objective’ of any legal system; and thereby, what the age old concept of “law and order” has to be taken to indisputably / unquestionably signify . In short, the time is not but fully ripe now, than ever or if not before, for taking with the utmost seriousness the “right (nay, righteously wise ) signals” transmitted by the highest court of the nation, to strive for and accomplishing the “course correction(s)” – deliberately being short (over?) sighted hence remained long outstanding.
(Left open wantonly, with a fervent wish / Invitation to EDIT)

KEY NOTE: It is noteworthy that, this is the second noted instance, that too within a short span in time scale, the apex court has chosen to send / broadcast strong signals, cautioning why the need for such course corrections, as warranted, having obviously in mind the increasingly changing "legal system", and its functioning, from bad to worse.
To be precise, for a professional, lawyer or CA to say that he has a right to practice a profession of his choice. But that is no way to say, - verging on imbecility, insanity -to have a right to practice, represent/appear , -

(A) either or both simultaneously;

(B) before any authority, not only 'tribunal', but also a 'court'; 

(C) whether or not suitably and  properly, albeit being besides academically qualified,  'equipped' OR MENTALLY PREPARED TO BE, so as to take a reasonably good care, by striving and protecting the client's rights and interests; and

(D) regardless of the blatantly damaging grave consequences. repercussions, entailed/ potent with, not only to the given client, but to the tax paying community as a whole, and in turn, to the society , so also, in the ultimate analysis,  the  Government itself.

The root cause of it all is traceable to / lies in the legislation, impulsively and recklessly made, with no regard to the brink of disaster the vested interests, exclusive of only the favored professionals, are going to be pushed into.    





<<<<Taxation Law (s) – 'INTENT ' vs Explicitness - TaxGuru


Spl. Mark >

http://mvenkaiahnaidu.blogspot.in/2009/07/sri-m-venkaiah-naidu-major-initiatives.html


http://vswaminathan-swamilook.blogspot.in/2014/09/om-namo-narayana-contd.html

GPA Sale (SC)




www.legalservicesindia.com/.../topic266-suraj-lamp-and-industries-p-vs-...
indiankanoon.org/doc/1565619/


"GPA" Transaction- valid ! (Del..HC) - swamilook - Blogger

vswaminathan-swamilook.blogspot.com/.../gpa-transaction-valid-delhc.h...

 Xtract :

< Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty>

<CA club - ref. his viewpoints on SC

  Section 2(47)(v) may hit by change in 53A of the TP Act





Section 2(47)(v) may hit by change in 53A of the TP Act



MORE >




7 July, 2011 - Bank of New England II - Revisiting The Rule of Explicitness (aka, in case we weren't ... (The first decision is HSBC Bank USA v. ... By way of background, the Rule of Explicitness, long a feature of common law governing the ...

www.law.cornell.edu/supremecourt/text/5/137
In cases of commissions to public officers, the law orders the Secretary of ..... Baker et al., states with much precision and explicitness the cases in which this writ ...

books.google.co.in/books?isbn=0199692327 -
Article 6 impliedly confers a right to 'legal assistance'123 whereas at common law, ... implicit in the common law concept of a fair hearing, the explicitness of the ECHR's ... 119 Secretary of State for the Home Department v AF [2009] 3 WLR 74.

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http://praja.in/en/blog/m...

Legal System - Law v Case Law

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