Month: January 2009

Archive for January, 2009


Vodafone International vs. UOI (Supreme Court)

COURT:
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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 30, 2009 (Date of publication)
AY:
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CITATION:

In view of the assessee submitting copies of the agreements (which had not been submitted earlier before the AO or the High Court) and the law laid down in Management of Express Newspapers vs. Workers AIR 1963 SC 569 that the High Court should ordinarily not embark upon deciding questions of fact which require appreciation of evidence, the question in regard to “the jurisdictional issue” should be decided by the AO as a “preliminary issue” and the assessee shall be entitled to question the decision of the AO on that preliminary issue before the High Court. The question of law “to that extent” remains open.

DaimlerChrysler India vs. DCIT (ITAT Pune)

COURT:
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SECTION(S):
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DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

Under Article 24 (4) of the India-Germany DTAA, Enterprises of India, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of Germany, cannot be subjected in India to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of India are or may be subjected;

DIT vs. NGC Network Asia LLC (Bombay High Court)

COURT:
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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

A non-resident whose income is liable to deduction of tax at source under s. 195 is not liable to pay advance tax u/s 209 (1)(d). Consequently, there can be no liability on such assessee u/s 234B for shortfall in advance tax.

New Shailaja CHS vs. ITO (ITAT Mumbai)

COURT:
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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee, a Co.op Housing Society became entitled, by virtue of the Development Control Regulations, to Transferable Development Rights (TDR) and the same were sold by it for a price to a builder and the question arose whether the transaction of sale receipt could be taxed, HELD that though the TDR was a ‘capital asset’, there being no ‘cost of acquisition’ for the same, the consideration could not be taxed.

Export Credit Guarantee Corp vs. ITO (ITAT Bombay)

COURT:
CORAM:
SECTION(S):
GENRE:
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

The judgement in Sun Engineering had to be confined to a case where the issue had attained finality in the original proceedings. Such an issue could not be permitted to be agitated by the assessee in reassessment proceedings. However, as the facts showed that the issue had not attained finality in the original proceedings, there was no bar in the assessee raising such issues in the reassessment proceedings.

ACIT vs. Epcos AG (ITAT Pune)

COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: January 18, 2009 (Date of publication)
AY:
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CITATION:

On facts, the assessee had rendered support services to its subsidiaries and some employees of the latter had worked under the guidance of the assessee, but the work so done by the employees was for the business of the Indian subsidiaries and not for the assessee. There is a distinction between business of the foreign company and that of its Indian subsidiaries. What was done by the employees of the Indian subsidiaries was running the business of the Indian subsidiaries with the guidance of the assessee. The work done by the employees of Indian subsidiaries did not mean that these employees were doing business of the foreign principal unless the work so done by these employees entitled the assessee for rewards of the work so done. The situs and manner of rendering of services, by anyone other than the employees or sub-contractees of the foreign principal, cannot govern whether or not the foreign principal will have a PE in India.

U.K. Mahapatra and Co vs. ITO (Orissa High Court)

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DATE: (Date of pronouncement)
DATE: January 18, 2009 (Date of publication)
AY:
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CITATION:

Where the ITO conducted a survey u/s 133A of the Act on the premises of the Petitioner, a practicing Chartered Accountant, and impounded books of account /documents belonging to the Petitioner and retained such books of account/documents and the Petitioner filed a Writ Petition to challenge the same, HELD, allowing the Petition:

J. M. Share & Stock Brokers vs. JCIT (ITAT Mumbai)

COURT:
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DATE: (Date of pronouncement)
DATE: January 18, 2009 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

Where the assessee was a stock broker but it was consistently following the practice of holding some shaes as ‘stock in trade’ and other shares as ‘investments’ and the question arose whether the profits on the sale of shares held as investments constituted a capital gain or business profits, HELD

Kuber Tobacco vs. DCIT (ITAT Delhi – Special Bench)

COURT:
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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 14, 2009 (Date of publication)
AY:
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CITATION:

Though the issue and service of notice relates to procedural law S. 292-BB takes away the valuable right of an assessee to challenge the validity of assessment during the course of appellate proceedings and creates a new disability on the assessee by debarring him from challenging the validity of the same;

 

(4) Consequently, s. 292-BB cannot be construed to be retrospective and has to be applied prospectively in respect of AY 2008-09 and subsequent years.

CIT vs. Vatika Township (Supreme Court)

COURT:
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COUNSEL:
DATE: (Date of pronouncement)
DATE: January 10, 2009 (Date of publication)
AY:
FILE: Click here to view full post with file download link
CITATION:

In CIT vs. Suresh N. Gupta 297 ITR 322, the Supreme Court held that the Provio to s. 113 (which imposes surcharge on block assessments), though inserted only with effect from 1.6.2002, was applicable to searches conducted prior to that date as it was ‘clarificatory’ and ‘curative’ in nature.

 

HELD, however, by another Division bench that as the said proviso was introduced with effect from 1.6.2002, i.e. with prospective effect “we are of the opinion that keeping in view the principles of law that the taxing statute should be construed strictly and a statute, ordinarily, should not be held to have any retrospective effect, it is necessary that the matter be considered by a larger Bench”.

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