LEX NEMINEM COGIT AD VANA SEU IMPOSSIBLIA by Sushma Gowda

Literal meaning –The law compels no one to do vain or impossible things.

Origin – This maxim is found in Sec. 263 of Income Tax Act. Where the law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over, the law will in general excuse him.

Explanation – When the condition of an obligation is possible at the time of its making, but before it can be performed becomes impossible by an act of God, the law, or the obligee, the obligation is saved.For instance, common law does not require people to do that which is impossible. This principle is expressed in the maxim lex non cogit ad impossibilia – no one should be compelled to perform or comply with that which is impossible

Illustration -When no enquiry has been conducted at all or the so-called inquiry conducted by the person is as good as no enquiry, as is the case under consideration, in such circumstances, authorized person simply needs to point out those relevant aspects of assessment, which the person lost sight of, but were required to be probed.

Case Reference

Marigold Nirman Pvt Ltd, Kolkata vs Assessee on 30 July 2015 The court held that:-

where no
enquiry has been conducted at all or the so-called enquiry conducted by the AO
is as good as no enquiry, as is the case under consideration, in such
circumstances, the CIT simply needs to point out those relevant aspects of
assessment, which the AO lost sight of, but were required to be properly probed

Marigold Nirman Pvt Ltd, Kolkata vs Assessee it is observed that “the assessment order is set aside with the direction to the AO for looking into the matter afresh and then deciding the issue properly. There can be no way for the CIT to tell erroneous approach of the AO on merits in such circumstances because the view of the AO on merits is not available. Requiring the CIT to indicate where the AO went wrong on merits in the cases of no enquiry cases, is like requiring an impossible thing to be done. It is axiomatic that the law does not require an impossible to be complied with. We are reminded of the legal maxim, Lex neminem cogit ad vana seu impossiblia which means that the law compels no one to do impossible things. When we approach the facts of the cases under consideration, it is obvious that the extent of an enquiry conducted by the AO, being as good as no enquiry, is sufficient in itself to empower the CIT for invoking his jurisdiction u/s 263. Under such circumstances, we cannot cast an impossible burden on the CIT to show the positive leakage of income in concrete terms, when he has simply set aside the assessment order and restored this aspect of the assessment to the file of ITA No.1104/Kol/2014 (M/s Subhalakshmi Vanijya Pvt. Ltd.) & 18 other appeals of different assessees AO for making a proper enquiry and then deciding. This argument of the ld. AR, being devoid of any merits, is rejected.”

However in the case Virbhadra Singh (Huf), Shimla vs Cit, Shimla

A mere mention in the order of the CIT that proper inquiry was not conducted, in the opinion of the ld. AR, was an incorrect appreciation of the provisions of section 263. So long as there is an evidence on the record of the AO about conducting of a proper inquiry, the ld. AR argued, that the ld. CIT cannot invoke the provisions of section 263

Reference:-

Broom, Herbert, A Selection of Legal Maxims Classified and Illustrated,
10th Ed., (London: Sweet & Maxwell Limited, 1939), pages 162-169

Eager v Furnivall, 17 Ch. D. 115 (1881)

Hick v Rodocanachi, [1899] 2 Q.B. 626 at page 638

Hughey v. JMS Development Corp., 78 F. 3d 1523 (1996)

NOTE 1: Campbell v. Daniels Motor Freight, Inc., 8 Ohio App. 2d 244
(1966)

Transportaction Lease Systems Inc. v. Virdi, 2010 BCCA 347

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