Month: May 2011

Archive for May, 2011


CIT vs. Radhey Shyam Bansal (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: May 31, 2011 (Date of publication)
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CITATION:

S. 158BD order void if referring AO’s “satisfaction” not recorded On 30.8.2000, search u/s 132 was carried out on the premises of Manoj Aggarwal pursuant to which a block assessment u/s 158BC was made on 29.8.2002. On 15.7.2003, Manoj Aggarwal’s

Posted in All Judgements, High Court

Sinhgad Technical Education Society vs. ACIT (ITAT Pune)

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DATE: (Date of pronouncement)
DATE: May 29, 2011 (Date of publication)
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CITATION:

Though s. 153C confers jurisdiction if the AO is “satisfied” that “documents” seized belong to a person other than the person referred to in s. 153A so as to be able to assess that other person, the document must have prima facie incriminating information. The document seized must not only be a ‘speaking one’ but also be prima facie ‘incriminating one’ for attracting s.153C. If the impugned documents merely contain the notings of entries which are already recorded in the books of account or subjected to scrutiny of the AO in the past in regular assessment u/s 143(3) of the Act, such document cannot be said to be containing the incriminating information so as to confer jurisdiction u/s 153C.

Posted in All Judgements, Tribunal

DCIT vs. Nalwa Investments Ltd (ITAT Delhi)

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DATE: (Date of pronouncement)
DATE: May 29, 2011 (Date of publication)
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CITATION:

Though the computation of s. 14A disallowance was not made, the figures of dividend and interest were stated in the P&L A/c. Even the tax auditors did not state that s. 14A disallowance should be made. As there is no allegation by the AO that there was collusion between the auditor and the assessee to ignore s. 14A, it cannot be said that the explanation was not bona fide. Further, as Rule 8D was not enacted at the time, segregation of expenditure relatable to tax-free income would be disputable and lead to bona fide difference in opinion. So, penalty u/s 271(1)(c) cannot be levied

Posted in All Judgements, Tribunal

Mahendra C Shah vs. Addl CIT (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: May 25, 2011 (Date of publication)
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CITATION:

The question whether the surplus on the sale of shares is to be assessed as capital gains (short term or long term) or as business income has to be decided according to the cumulative effect of several facts and circumstances such as (a) the intention of the assessee, (b) the nature of the commodity sold, (c) whether the assessee has used his own funds or borrowed funds, (d) the treatment given to the asset in the books of account, (e) the consistent stand taken by the revenue authorities in respect of the sale proceeds of the asset in the earlier years, (f) the frequency and volume of the transactions, (g) the period of holding the shares and (h) whether the assessee took or gave delivery of the shares

Posted in All Judgements, Tribunal

CIT vs. SAS Pharmaceuticals (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: May 25, 2011 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

Though it is possible that but for detection in the survey, the assessee might not have offered the income, penalty u/s 271(1)(c) can only be levied if “in the course of proceedings” the AO is satisfied that there is “concealment” or “furnishing of inaccurate particulars” in the return of income. The words “in the course of proceedingsmean the assessment proceedings because there is no question of the satisfaction of the AO in survey proceedings. Further, the question whether there is “concealment” or “inaccurate particulars” has to be determined with reference to the return of income. As the assessee had offered the detected income in the return, there was neither concealment nor the furnishing of inaccurate particulars

Posted in All Judgements, High Court

Haworth (India) Pvt Ltd vs. DCIT (ITAT Delhi)

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DATE: (Date of pronouncement)
DATE: May 23, 2011 (Date of publication)
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CITATION:

Transfer Pricing principles on use of multi-year data, adjustment to operating profits & +/- 5% adjustment

Posted in All Judgements, Tribunal

Manori Properties Pvt Ltd vs. ITO (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: May 23, 2011 (Date of publication)
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CITATION:

The claim regarding “business loss” cannot be entertained because, though the CIT (A) has dealt with the issue, there is no specific ground. The claim is also not maintainable under Rule 27 since that applies only to a Respondent in the appeal

Posted in All Judgements, Tribunal

Chiranjeev Lal Khanna vs. ITO (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: May 19, 2011 (Date of publication)
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CITATION:

The assessee’s argument (relying on New Shailaja Co-op Hsg Soc) that there is no “cost of acquisition” is also not acceptable because while in that case the assessee had become entitled to additional FSI owing to the DC Regulations for which there was no cost, the present was one of “transfer of existing land and building” which was demolished by the builder for fresh construction and the documents were registered (Jethalal D Mehta 2 SOT 422 (Mum), Lotia Court Coop Hsg Soc 118 TTJ 199 (Mum), New Shailaja Coop Hsg Soc, Om Shanti Coop Soc etc not followed)

Posted in All Judgements, Tribunal

Standard Chartered Bank vs. DDIT (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: May 17, 2011 (Date of publication)
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CITATION:

The argument of the revenue that the consideration paid was for the “use of equipment” is also not correct because in order to constitute user of equipment, the customer should actually have domain or control over the equipment, or in other words, the equipment should be at its disposal. The customer should be in a position to use the equipment in its business activities. If a customer is given the mere access to some infrastructural facilities of the service provider and where the service provider has all the control, disposition and possession of such infrastructure and also the service provider operates such infrastructure on its own, then the customer cannot be said to have been assigned a right to use the equipment in the form of the infrastructure. In that case, the transaction partakes of the character of provision of services or facilities by the owner of the infrastructure in favour of the customer, as against giving the infrastructure to the customer itself for being used in the manner desired by the customer

Posted in All Judgements, Tribunal

CIT vs. Ankitech Pvt Ltd (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: May 16, 2011 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

U/s 2(22)(e), any payment by a closely-held company by way of advance or loan to a concern in which a substantial shareholder is a member holding a substantial interest is deemed to be “dividend” on the presumption that the loans or advances would ultimately be made available to the shareholders of the company giving the loan or advance.
The legal fiction in s. 2(22)(e) enlarges the definition of dividend but does not extend to, or broaden the concept of, a “shareholder”.As the assessee was not a shareholder of the paying company, the “dividend” was not assessable in its hands (Bhaumik 313 ITR 146 (Mum) (SB), approved in Universal Medicare 324 ITR 363 (Bom) & Hotel Hilltop 313 ITR 116 (Raj) followed)

Posted in All Judgements, High Court
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