CPT V24P7-Art1 (Content).pmd - Taxmann
CPT V24P7-Art1 (Content).pmd - Taxmann CPT V24P7-Art1 (Content).pmd - Taxmann
Direct Tax Laws case of Kochkunju Nair (supra) and in the light of definitions of “owner” and “ownership” as found in Black’s Law Dictionary (6th Edition) Black’s Law Dictionary (6th Edition) defines “owner” as under:- 652 “The person in whom is vested the ownership, dominion, or title of property; proprietor; he who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant, which restrains his right.” Black’s Law Dictionary (6th Edition) defines “ownership” as under:- The term “ownership” has been defined to mean, inter alia, as “Collection of rights to use and enjoy property, including right to transmit to others…..The right of one or more persons to possess or use a thing to the exclusion of others. The right by which a thing belongs to some one in particular to the exclusion of all other persons. The exclusive right of possession, enjoyment, and disposal; involving as an essential attribute the right to control, handle, and dispose” Moreover, the following principles with regard to rights in the case of “ownership” emerge from the decision of the Supreme Court in the case of Swadesh Ranjan Sinha v. Haradeb Banerjee [1991] 4 SCC 572. (a) The term “ownership” which denotes the relationship between a person and an object forming the subject-matter of his ownership consists of a complex of rights, all of which are rights in rem, being good against the entire world and not merely against specific persons. (b) There are various rights or incidents of ownership such as right to possess, use • DT - Secs. 45 & 54F and enjoy the thing owned and a right to destroy or alienate, though it need not necessarily be present in every case. (c) Such a right may be indeterminate in duration and residuary in character. (d) A person has a right to possess the thing, which he owns, even when he is not in possession, but retains only a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of certain event. CONCLUSION August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 32 4. In the light of the above discussion and the specific attribute of “ownership” found in the Black’s Law Dictionary (6th Edition) as the right of one or more persons to possess or use a thing to the exclusion of others, the conclusion of the High Court to the effect “on the admitted fact that the assessee herein, as an individual, does not own any property in the status of an individual as on the date of transfer, we have no hesitation in accepting the case of the assessee, thereby allowing the appeal” runs counter to the definition and one of the attributes of the term “ownership” (as seen earlier) and, therefore, it is submitted, with respect, that the decision of the Madras High Court in the case of Dr. (Smt) P.K.Vasanthi Rangarajan (supra), appears to be wrong and requires re-consideration by a Full Bench. Moreover, it can never be the intention of the Legislature to exempt the assessees from the rigours of proviso to section 54F of the Act in respect of co-ownership of residential properties under the pretext that they(the coowners) are not the exclusive owners of such residential properties. •••
Retrospective Amendments - Courts Disagree INTRODUCTION 1. This article highlights an interesting ruling from the Gujarat High Court in case of Avani Exports v. CIT [2012] 23 taxmann.com 62, on the constitutional validity of series of retrospective amendments to section 80HHC/28 vis-a-vis DEPB/DERC receipts w.r.e.f. 1-4-1998. As per the amendment made in 2005 certain preconditions were imposed for allowance of benefit under section 80HHC vis-a-vis DEPB/DERC receipts. The amendment provided as under: Profits on sale of Duty Entitlement Pass Book Scheme (DEPB) credits or Duty Free Replenishment Certificate (DFRC) will be treated at par with duty drawback for the purposes of proportionate increase of profits derived from exports computed under clause (a) or clause (b) or clause (c) of sub-section (3) of section 80HHC in the case of,— (i) an exporter having export turnover not exceeding ` 10 crores; (ii) in the case of an exporter having export turnover exceeding ` 10 crores, if— DIRECT TAX LAWS GOPAL NATHANI CA (a) he had an option to choose either duty drawback or duty entitlement pass book scheme; and (b) the rate of drawback credit attributable to the customs duty was higher than the rate of credit allowable under duty entitlement pass book scheme. or (c) he had an option to choose either duty drawback or duty free replenishment certificate; and (d) the rate of drawback credit attributable to the customs duty was higher than the rate of credit allowable under duty free replenishment certificate. HIGH COURT QUASHES RETROSPECTIVE EFFECT OF AMENDMENT 2. The Government somehow accepted the harshness and issued a Circular stating that no penalty and interest shall be imposed on such old demands and further, if levied these will be refunded/reversed. In a further tragedy August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 33 653
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- Page 11 and 12: used to introduce new rules of law,
- Page 13 and 14: for earning tax exempt income. Howe
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- Page 29 and 30: PENALTY CHARGES FOR BREACH OF LAW C
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Retrospective<br />
Amendments -<br />
Courts Disagree<br />
INTRODUCTION<br />
1. This article highlights an interesting ruling<br />
from the Gujarat High Court in case of Avani<br />
Exports v. CIT [2012] 23 taxmann.com 62, on<br />
the constitutional validity of series of retrospective<br />
amendments to section 80HHC/28 vis-a-vis<br />
DEPB/DERC receipts w.r.e.f. 1-4-1998. As per<br />
the amendment made in 2005 certain preconditions<br />
were imposed for allowance of benefit<br />
under section 80HHC vis-a-vis DEPB/DERC<br />
receipts. The amendment provided as under:<br />
Profits on sale of Duty Entitlement Pass Book<br />
Scheme (DEPB) credits or Duty Free<br />
Replenishment Certificate (DFRC) will be treated<br />
at par with duty drawback for the purposes<br />
of proportionate increase of profits derived<br />
from exports computed under clause (a) or<br />
clause (b) or clause (c) of sub-section (3) of<br />
section 80HHC in the case of,—<br />
(i) an exporter having export turnover not<br />
exceeding ` 10 crores;<br />
(ii) in the case of an exporter having export<br />
turnover exceeding ` 10 crores, if—<br />
DIRECT TAX LAWS<br />
GOPAL NATHANI<br />
CA<br />
(a) he had an option to choose either<br />
duty drawback or duty entitlement<br />
pass book scheme; and<br />
(b) the rate of drawback credit attributable<br />
to the customs duty was higher<br />
than the rate of credit allowable under<br />
duty entitlement pass book scheme.<br />
or<br />
(c) he had an option to choose either<br />
duty drawback or duty free replenishment<br />
certificate; and<br />
(d) the rate of drawback credit attributable<br />
to the customs duty was higher<br />
than the rate of credit allowable under<br />
duty free replenishment certificate.<br />
HIGH COURT QUASHES RETROSPECTIVE<br />
EFFECT OF AMENDMENT<br />
2. The Government somehow accepted the<br />
harshness and issued a Circular stating that<br />
no penalty and interest shall be imposed on<br />
such old demands and further, if levied these<br />
will be refunded/reversed. In a further tragedy<br />
August 1 to 15, 2012 u TAXMANN’S CORPORATE PROFESSIONALS TODAY u Vol. 24 u 33<br />
653
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