Month: February 2013

Archive for February, 2013


Khanna and Annadhanam vs. CIT (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: February 25, 2013 (Date of publication)
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CITATION:

On facts, the compensation was for loss of a source of income, namely referred work from Deloitte because it is somewhat difficult to conceive of a professional firm of chartered accountants entering into such arrangements with international firms of CAs, as the assessee in the present case had done, with the same frequency and regularity with which companies carrying on business take agencies, simultaneously running the risk of such agencies being terminated with the strong possibility of fresh agencies being taken. In a firm of chartered accountants there could be separate sources of professional income such as tax work, audit work, certification work, opinion work as also referred work. Under the arrangement with DHS there was a regular inflow of referred work from DHS through the Calcutta firm in respect of clients based in Delhi and nearby areas. There is no evidence that the assessee had entered into similar arrangements with other international firms of chartered accountants. The arrangement with DHS was in vogue for a fairly long period of time -13 years- and had acquired a kind of permanency as a source of income. When that source was unexpectedly terminated, it amounted to the impairment of the profit-making structure or apparatus of the assessee. It is for that loss of the source of income that the compensation was calculated and paid to the assessee. The compensation was thus a substitute for the source and the Tribunal was wrong in treating the receipt as being revenue in nature (Best & Co 60 ITR 11 (SC) distinguished)

Posted in All Judgements, High Court

CIT vs. Gita Duggal (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: February 23, 2013 (Date of publication)
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CITATION:

As held in D. Ananda Bassappa (SLP dismissed) & K G Rukminiamma, the Revenue’s contention that the phrase “a” residential house would mean “one” residential house is not correct. The expression “a” residential house should be understood in a sense that building should be of residential in nature and “a” should not be understood to indicate a singular number. Also, s. 54/54F uses the expression “a residential house” and not “a residential unit”. S. 54/54F requires the assessee to acquire a “residential house” and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be taken to have been satisfied. There is nothing in these sections which require the residential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems to us that the income tax authorities cannot insist upon that requirement. A person may construct a house according to his plans, requirements and compulsions. A person may construct a residential house in such a manner that he may use the ground floor for his own residence and let out the first floor having an independent entry so that his income is augmented. It is quite common to find such arrangements, particularly post-retirement. One may build a house consisting of four bedrooms (all in the same or different floors) in such a manner that an independent residential unit consisting of two or three bedrooms may be carved out with an independent entrance so that it can be let out. He may even arrange for his children and family to stay there, so that they are nearby, an arrangement which can be mutually supportive. He may construct his residence in such a manner that in case of a future need he may be able to dispose of a part thereof as an independent house. There may be several such considerations for a person while constructing a residential house. The physical structuring of the new residential house, whether it is lateral or vertical, cannot come in the way of considering the building as a residential house. The fact that the residential house consists of several independent units cannot be permitted to act as an impediment to the allowance of the deduction u/s 54/54F. It is neither expressly nor by necessary implication prohibited

Posted in All Judgements, High Court

JCIT vs. Pilani Investment & Industries Corpn. Ltd (ITAT Kolkata)

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DATE: (Date of pronouncement)
DATE: February 22, 2013 (Date of publication)
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CITATION:

Once it is found that an expense is specifically relatable to a taxable income, no portion of such an expense can be disallowed u/s 14A. The allocation of general expenses vis-à-vis tax exempt income and taxable income can only be made in respect of expenditure which cannot either be wholly allocated to taxable income, then or which can not be wholly allocated to tax exempt income; the allocation can be made, even on the basis of formula set out in Rule 6D (iii) (should be Rule 8D (2)(iii)), in respect of such expenses which do not fall within any of these categories

Posted in All Judgements, Tribunal

CIT vs. Liquid Investment and Trading Co (Delhi High Court)

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DATE: (Date of pronouncement)
DATE: February 20, 2013 (Date of publication)
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CITATION:

Both the CIT(A) as well as the ITAT have set aside the penalty imposed by the AO u/s 271(1)(c) on the ground that the issue of deduction u/s 14A of the Act was a debatable issue. We may also note that against the quantum assessment where under deduction u/s 14A of the Act was prescribed to the assessee, the assessee has preferred an appeal in this Court u/s 260A of the Act which has also been admitted and substantial question of law framed. This itself shows that the issue is debatable. For these reasons, we are of the opinion that no question of law arises in the present case

Posted in All Judgements, High Court

Confederation of Indian Pharmaceutical Industry vs. CBDT (H. P. High Court)

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DATE: (Date of pronouncement)
DATE: February 20, 2013 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

The regulation of the Medical Council prohibiting medical practitioners from availing of freebies is a very salutary regulation which is in the interest of the patients and the public. This Court is not oblivious to the increasing complaints that the medical practitioners do not prescribe generic medicines and prescribe branded medicines only in lieu of the gifts and other freebies granted to them by some particular pharmaceutical industries. Once this has been prohibited by the Medical Council under the powers vested in it, s. 37(1) comes into play. The Petitioner’s contention that the circular goes beyond the section is not acceptable. In case the assessing authorities are not properly understanding the circular then the remedy lies for each individual assessee to file an appeal but the circular which is totally in line with s. 37(1) cannot be said to be illegal. If the assessee satisfies the assessing authority that the expenditure is not in violation of the regulations framed by the medical council then it may legitimately claim a deduction, but it is for the assessee to satisfy the AO that the expense is not in violation of the Medical Council Regulations

Posted in All Judgements, High Court

CIT vs. Groz Beckert Asia Ltd (P&H High Court – Full Bench)

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DATE: (Date of pronouncement)
DATE: February 19, 2013 (Date of publication)
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CITATION:

In order to decide whether the expenditure is a revenue or a capital one has to look at the expenditure from a commercial point of view. Not every advantage of enduring nature constitutes capital expenditure. What is material to consider is the nature of the advantage in a commercial sense and it is only where the
advantage is in the capital field that the expenditure would be disallowable. If the advantage consists merely in facilitating the assessee’s trading operations or enabling the management and conduct of the assessee’s business to be carried on more efficiently or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure for an indefinite future. On facts, the corporate membership was for a limited period of 5 years. It was obtained for running the business with a view to produce profit. Such membership does not bring into existence an asset or an advantage for the enduring benefit of the business. It is an expenditure incurred for the period of membership and is not long lasting. By subscribing to the membership of a club, no capital asset is created or comes into existence. By such membership, a privilege to use facilities of a club alone, are conferred on the assessee and that too for a limited period. Such expenses are for running the business with a view to produce the benefits to the assessee. Consequently, it cannot be treated as capital asset (Otis Elevator 195 ITR 682 (Bom), Engineers India 239 ITR 237 (Del), Gujarat State Export Corp 209 ITR 649 (Guj) followed; Framatone Connector OEN 294 ITR 559 (Ker) dissented from; Majestic Auto overruled)

Posted in All Judgements, High Court

Sanofi Pasteur Holding SA vs. Dept of Revenue (Andhra Pradesh High Court)

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DATE: (Date of pronouncement)
DATE: February 18, 2013 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

ShanH was incorporated as part of the policy that all off-shore investments must be made through a subsidiary incorporated in France. It is not the case of the Revenue that in 2006 itself ShanH was conceived as a preordained scheme to avoid tax in India. The Revenue’s case about when ShanH became a tax avoidance scheme is ambivalent and incoherent. ShanH is an entity of commercial substance and business purpose. Though a subsidiary of MA/GIMD, it is not a mere nominee or alter ego of MA/GIMD and there is nothing to show that they exercised overriding control over it. The creation of subsidiaries for investment is a legitimate practice. ShanH is accordingly the true and beneficial owner of the Indian company’s shares. When the shares of ShanH were sold, it was the sale of shares of a French company and it cannot be said that the control, management or underlying assets of the Indian company were sold so as to attract tax on capital gains in India (Azadi Bachao Andolan 263 ITR 706 (SC) & Vodafone International 341 ITR 1 (SC) followed)

Posted in All Judgements, High Court

Sunil Kumar Yadav vs. UOI (CAT)

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DATE: (Date of pronouncement)
DATE: February 18, 2013 (Date of publication)
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FILE: Click here to view full post with file download link
CITATION:

The interim order has been passed on the basis of a prima facie case that the impugned transfer order has not been made by a proper Collegium in accordance with the guidelines laid down in Ajay Gandhi‘s case and also on the ground of alleged mala fides against the present officiating president of the ITAT. A new point has now been raised by the transferred Member that the ACC (Cabinet Committee of Appointment) has not yet accorded approval on the proposed appointment of Shri Karwa as officiating President of the ITAT on the ground that by such appointment there is a supersession of three persons and as there is no difference between an appointment in a substantive capacity and an officiating capacity, the appointment requires to be considered first by the Selection Committee. This approval may or may not come in due course of time and then only the exact status of the competent authority i.e. the President, ITAT, would be ascertained. For the present, prima facie, this point is in favour of the applicant. As regards the point of proper Collegium, the requirement in Ajay Gandhi is that the President should consult two senior Vice Presidents and not the two Vice Presidents available. It has been alleged that though the two Senior Vice Presidents were available for the Collegium, they were ignored in an arbitrary manner and in utter defiance of the law. Prima facie there appears to be some substance in the submission. A prima facie case has also been made out as regards the allegation of malafides. Consequently, there is no substantial and sufficient ground for vacating the interim order dated 19.11.2012

Posted in All Judgements, Tribunal

CIT vs. Mohmed Junded Dadani (Gujarat High Court)

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DATE: (Date of pronouncement)
DATE: February 11, 2013 (Date of publication)
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CITATION:

S. 147 empowers the AO to reopen an assessment if he has reason to believe that income has escaped assessment. If the requirements of giving jurisdiction to the AO to reopen the assessment are satisfied, he may also assess any other escaped income which comes to his notice subsequently in the course of the proceedings. Prior to the insertion of Explanation 3 to s. 147 by the Finance Act 2009 w.r.e.f. 1.4.1989, it was clear that if the reason for which the assessment is reopened fails, the AO could not proceed to assess other income which had escaped assessment. For assuming jurisdiction to frame an assessment u/s 147 what is essential is a valid reopening. If the very foundation of the reopening is knocked out, any further proceeding in respect to such assessment naturally would not survive. Explanation 3 to s. 147 does not change this position. Explanation 3 to s. 147 was inserted to counter the view taken by some courts (Atlas Cycle Industries 180 ITR 319 (P&H) & Travancore Cements 305 ITR 170 (Ker)) that even if the jurisdiction was validly exercised, the AO could not assess the other escaped income that was not referred to in the reasons. It merely clarifies the existing law and does not expand the powers of the AO u/s 147. If the AO drops the ground for which the notice for reopening was issued, it means he had no “reason to believe” that income had escaped assessment and so he has no jurisdiction to assess the other escaped income (Jet Airways 331 ITR 236 (Bom), Ranbaxy Laboratories 336 ITR 136 (Del) & Major Deepak Mehta 344 ITR 641 (Chhattisgarh) followed; Majinder Singh Kang 344 ITR 358 (P &H) not followed)

Posted in All Judgements, High Court

ACIT vs. Pratibha Industries Ltd (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: February 9, 2013 (Date of publication)
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CITATION:

Three possible circumstances emerge on the date of initiation of search u/s 132(1): (a) proceedings are pending; (b) proceedings are not pending but some incriminating material is found in the course of search, indicating undisclosed income and/or assets and (c) proceedings are not pending and no incriminating material has been found. Circumstance (a) is answered by the Act itself, that is, since the proceedings are still pending, all those pending proceedings are abated and the AO gets a free hand to make the assessment. Circumstance (b) has been answered in Anil Bhatia to hold that while there is no question of any abatement since no proceedings are pending, the AO is entitled to reopen the assessment (without having to comply with the strict conditions of s. 147, 148 and 151) and bring the undisclosed income to tax. Also, in All Cargo Global Logistics Ltd 137 ITD 287 (Mum)(SB) it was held that in the case of a non-abated assessment, an assessment u/s 153A has to be made on the basis of incriminating material. Circumstance (c) has been kept open and left unanswered. Circumstance (c) has to be answered to say that even where there is/are no pending proceedings and no incriminating material has to be found, the AO is still required to pass an order u/s 153A though the assessed income will have to be the same as the originally assessed income as there was no incriminating material. Accordingly, the assessee’s argument that when there is no incriminating material or assets, then there is no jurisdiction to proceed u/s 153A is not acceptable. S. 153A contains a non-obstante clause and is triggered automatically whenever a search is undertaken. The fact that no incriminating material was found has no bearing on the applicability of s. 153A

Posted in All Judgements, Tribunal
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