Month: December 2008

Archive for December, 2008


Coca Cola India Inc vs. ACIT (P & H High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 26, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

The transfer pricing provisions are applicable to a well defined class which meets the test of intelligible differentia. It also meets the test of rational relationship to the object i.e. to determine the real income. There is no ambiguity or absurd consequence of application of Chapter X to persons who are subject to jurisdiction of taxing authorities in India

Posted in All Judgements, High Court

Clifford Chance UK vs. DCIT (Bombay High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 26, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

The fiction of s. 9 is subject to the territorial nexus doctrine and income that arises out of a transaction requires to be apportioned to each of the territories. Whatever is payable by a resident to a non-resident by way of fees for services would not always come within the purview of section 9(1)(vii) of the Act. It must have sufficient territorial nexus with India so as to furnish a basis for imposition of tax

Posted in All Judgements, High Court

Moser Baer India Ltd vs. ACIT (Delhi High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 23, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessees challenged by writ petitions the orders passed by the Transfer Pricing Officer (“TPO”) determining the Arm’s Length Price (“ALP”) in relation to “International transactions” on the grounds that the said orders were passed without granting an oral hearing and without considering the documents and information filed by the assessees and without disclosing the information and documents obtained by the TPO which were used by him in the determination of the ALP, HELD, allowing the challenge: S. 92CA (3) imposes an obligation on the TPO to accord an oral hearing to the assessee. Even otherwise, an order entailing civil and penal consequences cannot be passed without a hearing.

Posted in All Judgements, High Court

CCE vs. Hongo India (Supreme Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 21, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

In CCE vs. Punjab Fibres Ltd (223) E.L.T. 337 the Supreme Court held that the High Court has no power to condone delay in filing of a Reference Application u/s 35H(1) of the Excise Act on the ground that where the statute specifies a limitation period, s. 5 of the Limitation Act would not apply. There are doubts about the correctness of this judgment because the power of the High Court to condone delay cannot be circumscribed by the statute. Accordingly, the issue should be referred to a Full Bench.

Posted in All Judgements, Supreme Court

Plastiblends vs. ACIT (Bombay High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 19, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

On the question as to whether for the purpose of availing deduction under Ch VI-A of the Act, the gross total income is required to be computed by deducting allowable depreciation even though the assessee had disclaimed the same for the purpose of regular assessment, there is a conflict of views between two Division Benches of the Court in Grasim Industries Ltd 245 ITR 677 and Scoop Industries 289 ITR 195. Accordingly, the issue has to be referred to the Full Bench.

Posted in All Judgements, High Court

Shanti Bhushan vs. UOI (Supreme Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 19, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

On facts, though all the members of the collegium including the then Chief Justice of India opposed the appointment of respondent No.2 (Justice Ashok Kumar) as a permanent Judge his term as additional judge was extended from time to time apparently at the behest of the Government. “the then Chief Justice should have stuck to the view expressed by the collegium and should not have been swayed by the views of the government to recommend extension of the term .. as it amounts to surrender of primacy by jugglery of words”. However, the belated challenge to the extensions “cannot put the clock back”.

Posted in All Judgements, Supreme Court

ACIT vs. Bhaumik Colour (ITAT Bombay – Special Bench)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 16, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

The expression shareholder in s. 2 (22) (e) refers to both a registered shareholder and beneficial shareholder. If a person is a registered shareholder but not the beneficial shareholder than the provisions of s. 2(22) (e) will not apply. Similarly if a person is a beneficial shareholder but not a registered shareholder then also the provisions of Sec. 2(22) (e) will not app]y.

Posted in All Judgements, Tribunal

UOI vs. SICOM Ltd (Supreme Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 10, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

While the arrears of the State have priority over private debts owed to ordinary or unsecured creditors, this priority does not extend over secured creditors (subject to statutory exception). The fact that the tax arrears are recoverable as arrears of land revenue makes no difference to this principle of common law.

Posted in All Judgements, Supreme Court

CIT vs. Rampur Engineering (Delhi High Court – Full Bench)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 10, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

The judgement of the Division Bench in CIT v. Ram Commercial Enterprises Ltd. (2000) 246 ITR 568 (Delhi) holding that penalty under Section 271(1)(c) of the Act cannot be levied where the authority initiating the penalty proceedings had not recorded its satisfaction regarding concealment of income or furnishing of inaccurate particulars thereof by the assessee is approved.

Posted in All Judgements, High Court

Vodafone International vs. UOI (Bombay High Court)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: December 5, 2008 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee, Vodafone, a Dutch company, purchased shares of a Cayman Company (which in turn held shares of an Indian company ‘Hutch Essar’) from another foreign company (HTIL) and the AO issued a notice asking the assessee why it should not be treated as an assessee in default for failure to deduct tax at source on the capital gains and the assessee filed a writ petition to challenge the same on the ground that a transaction between two foreign companies did not attract the provisions of the Act, HELD dismissing the writ petition that:

Posted in All Judgements, High Court