Month: December 2014

Archive for December, 2014


Birla Corporation Limited vs. ACIT (ITAT Jabalpur)

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DATE: December 24, 2014 (Date of pronouncement)
DATE: December 31, 2014 (Date of publication)
AY: 2010-11 & 2011-12
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CITATION:
Though construction, installation and assembly activities are de facto in the nature of technical services, the consideration thereof will not be assessable under Article 12 but will only be assessable under Article 7 if an “Installation PE” is created under Article 5. As Article 5 is a specific provision for installation etc, it has to prevail over Article 12

On the question as to whether the said receipt for installation, commissioning or assembly etc activity can be assessed as “fees for technical services”, it is seen that the DTAA has a general provision in Article 12 for rendering of technical services and a specific provision in Article 5 for rendering of technical services in the nature of construction, installation or project or supervisory services in connection therewith. As there is an overlap between Article 5 and Article 12, the special provision (Article 5) has to prevail over the general provision (Article 12). What is the point of having a PE threshold time limit for construction, installation and assembly projects if such activities, whether cross the threshold time limit or not, are taxable in the source state anyway. If we are to proceed on the basis that the provisions of PE clause as also FTS clause must apply on the same activity, and even when the project fails PE test, the taxability must be held as FTS at least, not only the PE provisions will be rendered meaningless, but for gross versus net basis of taxation, it will also be contrary to the spirit of the UN Model Convention Commentary. Accordingly, though construction, installation and assembly activities are de facto in the nature of technical services, the consideration thereof will not be assessable under Article 12 but will only be assessable under Article 7 if an “Installation PE” is created

Posted in All Judgements, Tribunal

Arcadia Share & Stock Brokers Pvt. Ltd vs. DCIT (ITAT Mumbai)

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DATE: December 22, 2014 (Date of pronouncement)
DATE: December 23, 2014 (Date of publication)
AY: 2006-07
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CITATION:
S. 40(a)(ia): Merilyn Shipping 146 TTJ 1 (Vizag) has binding effect in view of the SLP dismissal & the clarification in Janapriya Engineers (AP HC) and so amounts already paid during the year cannot be disallowed

The Tribunal had to consider whether in view of the Special Bench verdict in Merilyn Shipping & Transport 146 TTJ 1 (Vizag), a disallowance u/s 40(a)(ia) could be made in respect of the amounts that have already been paid during

Posted in All Judgements, Tribunal

CIT vs. Janapriya Engineers Syndicate (Andhra Pradesh High Court)

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DATE: June 24, 2014 (Date of pronouncement)
DATE: December 23, 2014 (Date of publication)
AY: -
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CITATION:
S. 40(a)(ia): Despite stay by High Court, Special Bench verdict In Merilyn Shipping is binding on the ITAT due to judicial discipline

The Tribunal had to consider whether in view of the Special Bench verdict in Merilyn Shipping & Transport 146 TTJ 1 (Vizag), a disallowance u/s 40(a)(ia) could be made in respect of the amounts that have already been paid during

Posted in All Judgements, High Court

State Bank of India vs. DCIT (Bombay High Court)

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DATE: December 17, 2014 (Date of pronouncement)
DATE: December 23, 2014 (Date of publication)
AY: 2006-07
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CITATION:
S. 254(2): If the Tribunal accepts that a mistake has crept in the order, interests of justice is served if the entire order is recalled (suo moto by the ITAT) & appeal re-heard. Appeals should not be disposed off in “light hearted” and “casual manner”

During the pendency of the Appeal before the High Court, the Tribunal passed an order on the Miscellaneous Application and revived the appeal filed before it for hearing afresh on merits in relation to withdrawal of deduction u/s 36(1)(viia). However,

Posted in All Judgements, High Court

CIT vs. Darbhanga Mansion CHS Ltd (Bombay High Court)

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DATE: December 18, 2014 (Date of pronouncement)
DATE: December 22, 2014 (Date of publication)
AY: 2005-06
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CITATION:
Transfer Fees recd by Co-op Hsg Soc from incoming & outgoing members (even in excess of limits) is exempt on the ground of mutuality

The assessee, a Co-operative Housing Society, received a sum of Rs.39,68,000 on account of transfer of flat and garage and credited it to ‘general amenities fund’ as well as ‘repair fund’. The assessee claimed that the said receipt is exempted

Posted in All Judgements, High Court

CIT vs. Sambhaji Nagar Coop. Hsg. Society Ltd (Bombay High Court)

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DATE: December 11, 2014 (Date of pronouncement)
DATE: December 17, 2014 (Date of publication)
AY: 2007-08
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CITATION:
S. 45/ 48: Gains on sale of TDR received as additional FSI as per the D. C. Regulations has no cost of acquisition and is not chargeable to capital gains

Only an asset which is capable of acquisition at a cost would be included within the provisions pertaining to the head “Capital gains” as opposed to assets in the acquisition of which no cost at all can be conceived. In

Posted in All Judgements, High Court

P. C. Joshi vs. UOI (Bombay High Court)

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DATE: December 15, 2014 (Date of pronouncement)
DATE: December 17, 2014 (Date of publication)
AY: -
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CITATION:
Article 19(1)(g): Levy of service-tax on Advocates is constitutional

A Writ Petition was filed to challenge the levy of service-tax on advocates. It was claimed that an advocate renders services which cannot be said to be commercial or business like. They cannot be equated with the service providers mentioned

Posted in All Judgements, High Court

M/s. Nandini Delux vs. ACIT (ITAT Bangalore)

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DATE: December 5, 2014 (Date of pronouncement)
DATE: December 8, 2014 (Date of publication)
AY: 2008-09 to 2010-11
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CITATION:
(i) S. 153A: Even in non-pending assessments where no incriminating material is found, AO is not limited to assessing “undisclosed” income, (ii) revenue expenditure on leased premises is not hit by sub-section (1A) to s. 32 or Explanation 1 to s. 32, (iii) Even income voluntarily disclosed in search is liable for 2. 234B/C interest

(i) The circumstance where proceedings are not pending and no incriminating material is found in the course of search has been left unanswered by the Delhi High Court in Anil Kumar Bhatia 352 ITR 493 (Del). In this case, the

Posted in All Judgements, Tribunal

ACIT vs. Oil and Natural Gas Corporation Ltd (ITAT Mumbai)

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DATE: December 3, 2014 (Date of pronouncement)
DATE: December 8, 2014 (Date of publication)
AY: 2008-09
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CITATION:
S. 194-I: Lease premium and additional Floor Space Index (FSI) charges paid to MMRDA is not "rent" for TDS

It is the real nature of the arrangement or transaction, and not merely the words or phrases employed, even as cautioned by the apex court in Panbari Tea Co. Ltd. (supra), i.e., the substance of the transaction, that is relevant

Posted in All Judgements, Tribunal

Nitco Logistics Pvt. Ltd vs. JCIT (ITAT Amritsar)

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DATE: September 5, 2014 (Date of pronouncement)
DATE: December 8, 2014 (Date of publication)
AY: 2009-10
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CITATION:
(i) Dharmada collections are not taxable as income, (ii) S. 50C does not apply to the purchaser of property

(i) It is not disputed that Dharmarth receipts are not taxable. This is as per the CBDT Circular (supra), as also the following decisions: i. CIT Vs. Bijli Cotton Mills (P) Ltd., (1979) 116 ITR 60 (SC) ii. CIT Vs.

Posted in All Judgements, Tribunal