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The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984);Section 2 (34)
Under section 2(34) of the Income Tax Ordinance 1984, accrued income or deemed to be accrued money is defined as income.................(14)
Fidelity Assets and Securities Co. Ltd. Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 35(4)
The
Deputy Commissioner of Taxes (DCT), in pursuance to the provision of
section 35(4) of the Income Tax Ordinance 1984(the Ordinance), is
empowers to discard the books of account of an assessee on the ground
that (i) no method of accounting has been regularly employed (ii) or if
the method employed is such that in the opinion of the DCT the income of
the assessee cannot be properly deduced therefrom. Again, the DCT can
ignore the book version of the account if he finds that (i) the Board of
Revenue has directed to follow a particular method of accounting and
the assessee has failed to maintain the same and (ii) assessee has not
complied with the requirement of section 35(3)
Ordinance and failed to furnish the copy of trading account, profit and
loss account and the balance sheet in respect of the income year,
certified by a chartered accountant. However, before discarding the
books of account, the DCT has to raise his dissatisfaction and pin
points the defects accordingly. In the instant case, the DCT simply
relies on the copy of a report of an audit team and discards the book
version of the assessee without raising his dissatisfaction and
pinpointing the defects in the return of the assessee.………(15), (16),
(17), (18), (19), (20) & (21)
Section 29(XXVII)
Within the purview of the provisions of section 29(XXVII) of the Income Tax Ordinance 1984, an assessee is entitled to keep the provision for his bad debt which is an allowable expenditure. As a statutory right, it remains beyond the province of interference of the Taxes Department.…… (23)
Section 32(7) read with Section 2(15)
The provision of section 32(7) of the Income Tax Ordinance 1984 is applicable in the case of share transfer business HFT (Held for Transfer) or HFD (Held for Dividend) and thereby exempted from taxability. ………… (25), (26), (27), 28), (29), (30), (31) & (32)
Enamul Hoque Chowdhury Vs. Deputy Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 93
S.R.O. No. 98 of 2007
Admittedly the Assessee-writ-petitioner in writ 13004 of 2012 has obtained the privilege of the S.R.O. No. 98 of 2007 and disclosed his undisclosed income for the assessment year 2006-2007 and paid the required tax along with the 5% penalty and that became compliance of the S.R.O. No. 98 of 2007 no question can be raised against the source of such undisclosed income by the DCT concern since the provision of Paragraph-2 of the S.R.O. 98 of 2007 categorically restricted the income tax department to make any further action against such non-discloser of undisclosed income........(10)
The DCT concern having been failed into an error raised an allegation in the notice under section 93 of the Income Tax Ordinance 1984 that the Assessee-writ-petitioner failed to disclose the bank loan amount of Tk. 2,85,59,317.00 which not been chargeable to tax does not come under the purview of section 93 of the Income Tax Ordinance 1984 as the same has been decided in so many cases of this court especially, in the case of Shahella Chowdhury Vs. The National Board of Revenue reported in 59 DLR(2007) 213 and also by this Bench in the case of Dr. Mohammed Moniruzzaman Vs. The National Board of Revenue in Writ Petition 3460 of 2011. ........(10)
The allegation as has been brought in this respect is that the Assessee-writ-petitioner did not disclose his bank loan in the return for the assessment year 2006-2007. A bank loan is not an income chargeable to tax this has been decided in the case of Shahella Chowdhury Vs. The National Board of Revenue reported in 59 DLR 213 In the aforesaid view of law, reopening of the case of the petitioner for the assessment year 1999-2000 under section 93 for reassessment and imposition of penalty under section 128 of the Ordinance must be held to be without any lawful authority and of no legal effect................(19)
The Bank loan has been termed as not income and that being not “income” is not chargeable to tax. It further appears that the provision of Section 93(1) of the Income Tax Ordinance 1984 commenced with the phrase “any income chargeable to tax of any assessment year” which means that in order to re-opening any assessed return, if the definite information comes into the possession of the taxing authority, that any amount which was "an income chargeable to tax" for that particular year, has escaped, then the authority concerned will be able to reopen the said past and closed assessment as decided in the case of 20. In the referred case of Dr. Mohammed Moniruzzaman Vs. The National Board of Revenue........ (20)
Income is denied in section 2(34) of the Income Tax Ordinance 1984 the aforesaid definition of income does not indicate that a liability by way of bank loan can be treated as an income of any person liable to pay income tax. Moreover, the provision of section 19(21) of the Income Tax Ordinance 1984 indicates that the status of a loan remains always the liability so far the same is not repaid after the end of fourth year. This question not been raised in the notice the issuance of the same not been in accordance with law the same is required to be declared as has been issued without lawful authority and is of no legal effect.........(21)
Hosaf International Limited Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No.XXXVI of 1984); Section 52 and 83(2)
Section 83(2)
has mandated the DCT concern to serve a notice upon the
Assessee-applicant if he feels inadequacy of evidence at the time of
writing the assessment order in his personal time after the conclusion
of hearing of the income tax case. In the instant case since the DCT
concern has felt that the Assessee-applicant has not filed documents
regarding his receipt of commission and deduction of Advance Income Tax
(AIT), the DCT concern was mandated by the aforesaid provisions of
section 83(2) to serve a notice to direct the Assessee-applicant to
submit the required documents and without such compliance of law it is
not befitting in the mouth of the DCT concern that the some point has
not been proved by adequate evidence……....(17)
In
the instant case, that advance income tax from the bill of the
assessee-applicant was deducted under the provision of section 52 of the
Income Tax Ordinance 1984 and therefore the same became the final
discharge under the provision of section 82C (1) of the Income Tax
Ordinance 1984 and this being not considered by the DCT concern is not
justifiable in view of this court.……(20)
Bank Al-Falah Limited Vs. The Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984);
Sections 159(2), 29(1) and 30(g)
In the instant case, the Assessee-applicant company is entitled to claim 10% of the Head Office expenses as allowable expenses and this head office expenses has been shown in the computation sheet, also filed before this court as Annexure-F(1) in the supplementary affidavit, along with the copy of the audited account made by the chartered accountant firm. This court decided in favour of the assesee, since, the tribunal , although came to a correct decision for deletion of the disallowances made by the DCT concern and erroneously affirmed by the first appellate authority, but further committed error in not directing the DCT concern to accept the 10% of Head Office expenses allowable expenses which the Assessee-applicant is entitled under the provision of section 30(g) of the Income Tax Ordinance 1984 and furthermore the Taxes Appellate Tribunal committed error in not allowing the application praying for correction of the error...........(15)
Asset Developments & Holdings Ltd. vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984); Section 35(4)
The Deputy Commission Taxes (DCT) is under an obligation to either raise dissatisfaction as to the method accounting or to pin point the defects in the item of expenditure, prior to discard the book version of the accounts audited and certified by the chartered accountant. This being the decision has been made by this court and the apex court on the provision of section 35(4) of the Ordinance, the DCT concerned is duty bound to observation the same...... (20)
Section 83
The DCT concerned upon serving a notice under section 79 of the Income Tax Ordinance 1984, directing the assessee to submit all papers and documents in support of the accounts and upon serving notice under section 83(1) of the Ordinance, directing the assessee to appear before him to conduct hearing and to explain the return along with supporting the accounts with the submitted evidence, may resort to the provision of section 83(2) of the Ordinance for passing the assessment order, within thirty days from the conclusion of hearing in his personal time and in the absence of the assessee and accordingly the DCT concerned may make his assessment order. But the legislature has rendered a protection to the assessee, from being harassed by the DCT concerned, to the extent that the DCT is obliged to serve a further notice upon the assessee, directing it to submit further evidence on particular point, which the DCT concerned felt as not proved by adequate evidence........(22)
Dr. Poly Dam Vs. Deputy Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Sections 82BB(1) and 83BB(3)
The Finance Act 2011
The Assessee since obtained the finalization of her tax liability, through the deemed finalization of its return, submitted under the provision of section 82BB(1) of the Income Tax Ordinance 1984, the same may only be reopened under the provision of section 83BB(3) of the Income Tax Ordinance 1984 and not otherwise...........(5)
The amendment made through Finance Act 2011 shall not be applicable on assessment year 2011-2012 and as such all the previous decision made by this court as to non-applicability of provision of section 93 against the deemed finalization of tax liability shall be applicable to this case.........(6)
The Assessee-writ-petitioner Dr. Poly Dam submitted her income tax return for the assessment year 2011-2012 under the Self Assessment Scheme, as provided in section 82BB of the Income Tax Ordinance 1984 and that return, being compliant, was accepted by the DCT concern, who issued receipt of the submission of the same, which practically made the tax liability of the Assessee-writ-petitioner as deemed finalized. Such a deemed finalized assessment may only be reopened as per the provision of section 82BB(3) of the Income Tax Ordinance 1984, if the National Board of Revenue selects the said return for audit purpose and upon auditing the same the DCT concern if satisfied as to reopening of the deemed assessment on any vital reason it can proceed to make a revised assessment on the basis of revised return to be filed by the assessee.......(9-10)
The amendment, made through the provision of Finance Act 2011, is not applicable in the instant case of the Assessee-writ-petitioner as to its tax liability for the assessment year 2011-2012. The amendment made by the Finance Act 2011, to be effective from the 1st July, 2011, is applicable on the income year 2011-2012 and not on the assessment year 2011-2012, rather the said amendment will be applicable on the assessment year 2012-2013. Therefore the decision as has been made as to the non-applicability of section 93 of the Income Tax Ordinance 1984 against the deemed finalization of tax liability under the Self Assessment Scheme is also applicable in the case of the Assessee-writ-petitioner........(15)
DCT
concern in violation of the provision of section 82BB(3) of the Income
Tax Ordinance 1984 prevalent at the relevant time and the decision made
by this court in various cases regarding the non-applicability of
section 93 of the Income Tax Ordinance 1984 against the deemed
finalization of tax liability under the Self Assessment Scheme, issued
the impugned notice under section 93 of the Income Tax Ordinance 1984
against the Assessee-writ-petitioner expressing his intention to reopen
the deemed finalized assessment of assessment year 2011-2012 of the
Assessee-writ-petitioner. That being not lawful the issuance of the
notice is required to be declared as has been issued without any lawful
authority having legal implication.......(16)
Subarna Garments Limited Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Section 158(4)
The section 158(4) of the Income Tax Ordinance 1984 provides that the Taxes Appellate Tribunal may admit an appeal after the expiry of sixty days, if it is satisfied that there was sufficient cause for non-submission of the appeal within the statutory period........ (12)
Section 52
The section 52 of the Income Tax Ordinance 1984 has mandated a company to deduct Advance Income Tax (AIT) from the bill to be paid to its sub-contractor........... (13)
Shah Monzurul Hoque Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No.XXXVI of 1984);
Section 82BB (3)
Under section 82BB (3) of the Income Tax Ordinance 1984, the National Board of Revenue may select the return submitted by an assessee for audit purpose and direct the concern Deputy Commissioner of Taxes (DCT) to hold audit upon the said return. Thereafter, if the DCT concern considers to proceed for further assessment, he may do so within the purview of section 83 or 84, as the case may be, of the Ordinance. So holding of an audit by the DCT is a mandatory requirement before making fresh assessment of the return and the non-holding of the same is nothing but violation of law. In the instant case, the DCT did not hold audit in any form. The provision of Ordinance being fiscal law is to be followed strictly in order to render justice to the tax payer of the country.…… (7), (8), (9) & (10)
Haji Mohammad Ali vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance 1984 (Ordinance No. XXXVI of 1984); Section 84
A revised assessment has got no legal implication where the mandatory provision of income tax statute has not been complied with the provision of section 84 of the Income Tax Ordinance 1984 which empowered the DCT concern to make an exparte assessment order............. (20)
The sign of applying the provision of section 84 is the service of notice under section 79 or 83(1) of the Income Tax Ordinance 1984 unless such provision is complied with any assessment order made as best judgment assessment is a palpable illegality having no legal implication..............(20)
Section 93
The power of reopening of any assessment under the provision of section 93 of the Income Tax Ordinance 1984 cannot be invoked after the five years from the end of the assessment year for which the assessment is to be made.............. (21 & 22)
Sections 93 & 184
The bank deposit cannot be a basis for invoking the power available under the provision of section 93 of the Income Tax Ordinance 1984 and cannot be treated as definite information as to any concealment of income since admittedly the Assessee-applicant is a businessman of purchasing and selling the delivering order of sugar and other consumer item for which the purchaser of due from the Assessee-applicant deposited money in the bank account of the Assessee-applicant which was time flight to the concern industrial enterprise who delivers the consumer item to the purchaser and therefore the money which has been shown in the bank account is not selling money by the Assessee-applicant and the producer of the consumer item this has been explained to the Deputy Director Central Intelligence Cell (CIC) of NBR who did not consider in order to benefit himself under the provision of section 184 of the Income Tax Ordinance 1984.......(24)
The income tax statute has allowed the department to collect tax upon income through lawful way and not to extort money by invoking the power available to them under the Income Tax Ordinance 1984 by twisting the same and misappropriating the power.........(25)
Section 83A(5)
The power available sub-section (5) of section 83A of the Income Tax Ordinance 1984 can only be invoked where the tax executive has got the definite information as to the concealment of any income...........(26)
Section 159(2)
The power available under section 159(2) of the Income Tax Ordinance 1984 for remanding a case to the Deputy Commissioner of Taxes (Appeal) to cause further inquiry is intended by the legislature to be applicable in the case where further inquiry is required on any point which is not in front of the tribunal. But when all the evidences are in front of the tribunal it being the highest authority of appeal in the Taxes Department is liable to dispose of the all by itself upon considering the available evidence in front of it..........(30)
Section 128
A proceeding under section 128 of the Income Tax Ordinance 1984 for imposing penalty upon the assessee in default should be decided in the basic assessment order made under section 93 of the Income Tax Ordinance 1984 and in no other manner............ (38)
Peoples Insurance Company Limited Vs. Commissioner of Taxes, 2014, 43 CLC (HCD)
The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)
Section 29(viii)
Under
section 29(viii) of the Income Tax Ordinance 1984, any amount paid by
an assessee company to its employee and styled as entertainment
allowances are admissible as deduction in the computation of its
business income for the relevant assessment..............(24) &
(30)
Sections 32(7) & 2 (15) read with section 31
Sections
32(7) & 2(15) read with section 31of the Income Tax Ordinance 1984,
it appears that the Stock in share dealt in stock market by the
Insurance company is exempted from tax.......(31)
Promoda Sundari Sen Kalyan Trust Vs. Momtaz Zafar Ahmed and Others, 2011, 40 CLC (HCD)
Artha Rin Adalat Ain, 2003; Section 32
The party (plaintiff-petitioner) took a wrong way to ventilate his grievances, other than the recourse prescribed by specific provisions governing the issue—
It is an admitted proposition that the present plaintiff-petitioner did not file any application before the executing Adalat under section 32 of the Ain, 2003 but he has filed the present suit without even approaching before the executing Adalat. The 3rd party petitioners have/had enough scope to file an application before the Artha Rin Adalat by way of filing an objection under section 32 of the Ain, 2003 against the execution of a decree passed by the Artha Rin Adalat relating to the property. ………...(38)
Sonali Bank Vs. Habib Medical Store and Others, 2012, 41 CLC (HCD)
Turfatur Ain Chowdhury Vs. Artha Rin Adalat Dhaka and Others, 2015, 44 CLC (HCD)
Code of Procedure, 1908; Order I, rule 10(2)
Constitution of Bangladesh, 1972; Article 102
Rule 10(2) The Court may at any stage of the proceedings, either upon or without any application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the suit, be added.
The Court is empowered to add the name of anyone in the plaint or remove anyone's name form the plaint at any stage either on its own motion or upon application of either party for effective and complete adjudication of all questions involved in the case………….(21 & 22)
Adjusting the loan-money from the assets and properties of the principal-debtor (the Company)—The Bank as per the deed executed between the deceased-mortgagor and the Bank, the latter is entitled to get its money by selling the same—
The Adalat's first initiative should be to adjust the loan-money from the assets and properties of the principal-debtor (the Company). If the Company's assets and property are sufficient to pay off the Bank's loan, there is no point of selling the deceased-mortgagor's landed property.
If
the loan-money is not adjusted through selling the mortgaged property,
the Bank shall be competent to attach the other properties left by the
said deceased on the strength of the 'Undertaking' and 'Promissory Note'
and, in that event, as the legal heirs of the deceased, the writ
petitioner and respondent No. 8 are duty bound to assist the Adalat by
furnishing an inventory of the movable assets and a list of
non-mortgaged immovable property before the trial Court. Moreover, when
the above mortgaged or non-mortgaged properties and assets would be sold
through auction, the presence of the heirs is necessary to ensure that
those are not sold at a too low price to their disadvantage…..(44)
Kamal Uddin Ahmed, Director, Holy Crescent Hospital Limited Vs. Chairman, National Board of Revenue, 2015, 44 CLC (HCD)
Income Tax Ordinance (XXXVI of 1984)
Section 120
IACT is empowered to call for the record of any proceeding from the DCT and examine the same under section 120 of the Ordinance and if he considers that any order passed thereon by the DCT is erroneous in so far as it is prejudicial to the interest of the Government revenue, he may invoke his jurisdiction under section 120 of the Ordinance subject to certain conditions.
IACT holds jurisdiction to pass any order under section 120 of the Ordinance—
In the instant case, where the DCT is accepting a return and issuing a receipt which is being treated as an assessment, no doubt, the DCT is passing an order about the correctness and completeness of the return. Therefore, it cannot be said that the IACT has no jurisdiction to pass any order under section 120 of the Ordinance….. (14 &15)
it is a settled principle of law that the IACT may invoke his jurisdiction under section 120 of the Ordinance only where the order passed by the DCT is erroneous in so far as it is prejudicial to the interest of the Government revenue and the error of the DCT must be an error of law and not an error on facts………. (16)
Ananda Shipyard & Slipways Limited Vs. Commissioner Customs Bond Commissionerate, Dhaka, 2015, 44 CLC (HCD)
Customs Act (IV of 1969); Sections 98, 98(1) (2A) and 111
The Demand of Customs Authority —Removal of the Goods under Section 98
The appropriate customs authority may demand full amount of duties chargeable on the goods imported under the bonding facilities with all rent, penalties, interest and other charges payable in respect of the goods, if the goods have not been removed from the warehouse within the time allowed for such removal under section 98 of the Act. ...... (17)
Under
sub-sections (1) and (2A) of section 98 of the Act, goods imported for
hundred percent export oriented ship building industry and warehoused
in any special bonded warehouse or in any hundred percent export
oriented industry, may remain in such warehouse or industry for a period
not exceeding forty eight months from the date of warehousing. The
customs authority may legally demand the amount of duties, taxes, etc.
chargeable thereon with interest. For the purpose of recovery of unpaid
duties, taxes, etc. no previous show-cause notice is necessary, because
it is not a penal action ............(19)
Tufail K. Haider Vs. Extra Assistant Commissioner of Taxes and Others, 2015, 44 CLC (HCD)
Income Tax Ordinance (XXXVI of 1984)
Section 120 and 121A
Whether Tax Authorities have exercised Jurisdiction beyond its Power —under section 120 read with 82BB as well as section 121A of the Income Tax Ordinance.
The
very concept of 'signing money' or 'earnest money' as received by the
petitioner in this case has been misconceived by the tax authorities
and, as such, the same has been regarded as capital gains without
jurisdiction. Thus, this Court is of the view that, the entire exercise
of powers by the customs authority, in so far as this 'signing money' or
'earnest money' is concerned, either under section 120 or under
section 121A are without jurisdiction and, as such, this Court under
writ jurisdiction can interfere into the same……...................(8)
Hafizur Rahman Vs. Abdur Rahman Miah and Others, 2015, 44 CLC (HCD)
It is well settled that where in any contract, time is intended to be of the essence of the contract, it is not sufficient to find whether there was such intention or not, but it is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract.
In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
in this case the plaintiff petitioner has successfully proved his readiness and willingness to pay the balance of the consideration money within the stipulated period of time, there being no controversy regarding the failure of the defendant-respondent No.1 to perform his part within the period of the contract (bainapatra in question), the suit for specific performance of the contract cannot fail……..............(18-19)
City Vegetable Oil Mills Ltd Vs. Commissioner, Customs, Excise & Vat and Others, 2015, 44 CLC (HCD)
Nurun Nabir Sarker Vs. Secretary, Ministry of Education and Others, 2015, 44 CLC (HCD)