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Archive for the ‘Tribunal’ Category

Manugraph India Ltd vs. DCIT (ITAT Mumbai)


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DATE: March 25, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2008-09
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CITATION:
(i) Growth mutual funds do not yield dividend and so s. 14A/ Rule 8D does not apply, (ii) S. 14A/Rule 8D disallowance for admin exp cannot exceed allocable exp debited to P&L A/c, (iii) ALP of funds lent to AE should be as per LIBOR, (iv) ALP of corporate guarantee to be at 0.5%

Growth mutual fund does not yield any dividend/exempt income, therefore, the provisions of section 14A would not apply on the investment in growth mutual funds


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Aditya Birla Minacs Worldwide Ltd vs. DCIT (ITAT Mumbai)


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DATE: March 25, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2007-08
FILE: Click here to view full post with file download link
CITATION:
Transfer Pricing: Share application money cannot be treated as loan amount merely because there is a delay in issuance of shares

For transfer pricing purposes, share application money cannot be treated as loan amount merely because there is a delay in issuance of shares by the subsidiary in the name of the assesse, which was duly explained by the assesse


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DCIT vs. Rajasthan Global Securities Ltd (ITAT Delhi)


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DATE: March 10, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2010-11
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CITATION:
Factors to be considered for classifying gains from sale of listed shares into "short-term capital gains" versus "business profits" explained

It is an undisputed fact that the assessee took delivery of such shares after making full payment and it was not a case of settling the transaction of purchase and sale of such shares during the settlement period itself. This is another reason to indicate that the intention of the assessee to hold them as Investment


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Anil Kumar Chaudhary vs. ITO (ITAT Delhi)


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DATE: March 11, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2000-01
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CITATION:
S. 147/ 148: If the assessee does not ask for reasons and file objections before the AO, he is not entitled to challenge the reopening proceedings

Law does not provide or mandate that the Assessing Officer shall suo motu shall supply the copy of those ‘reasons to believe’ to the assessee. It is for assessee and if assessee chooses to ask for reasons then he/she can file objection thereto. Only when such objections are filed, it becomes the duty of the Assessing Officer to dispose of all those objections first by passing a speaking order and if the objections are rejected then it gives a cause to the assessee to challenge such order by filing an appropriate writ


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Bir Bahadur Singh Sijwali vs. ITO (ITAT Delhi)


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DATE: January 20, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2009-10
FILE: Click here to view full post with file download link
CITATION:
S. 147: Reopening an assessment on the ground that there is need of an inquiry which may result in detection of an income escaping assessment is not valid

The important point is that even though reasons, as recorded, may not necessarily prove escapement of income at the stage of recording the reasons, such reasons must point out to an income escaping assessment and not merely need of an inquiry which may result in detection of an income escaping assessment


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Direct Sales Pvt. Ltd vs. ITO (ITAT Delhi)


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DATE: February 25, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2002-03
FILE: Click here to view full post with file download link
CITATION:
S. 147/151: Merely stating "Approved" is not sufficient sanction of CIT and renders reopening void

A simple reading of the provisions of Sec. 151 (1) with the proviso clearly show that no such notice shall be issued unless the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is application of mind and due diligence before according sanction to the reasons recorded by the AO


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Sardar Balbir Singh vs. ITO (ITAT Lucknow)


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DATE: March 13, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2003-04
FILE: Click here to view full post with file download link
CITATION:
S. 147/ 151: Sanction of CIT instead of JCIT renders reopening void. The error cannot be saved u/s 292BB

Since the approval was not obtained from the competent authority, notice issued under section 148 of the Act is void ab-initio and the assessment framed consequent thereto is not a valid assessment. The error is fatal and cannot be saved under section 292BB


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ACIT vs. Kunvarji Finance Pvt. Ltd (ITAT Ahemdabad)


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DATE: March 19, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2006-06 to 2008-09
FILE: Click here to view full post with file download link
CITATION:
(i) Modification to client code of client is not necessarily a mala fide act, (ii) Disclosure made in a statement recorded at unearthly hours cannot be given credence, (iii) if a voluntary disclosure is retracted, the AO has to make addition on the basis of documentary evidence

If a statement is recorded at midnight, much credence cannot be given to such statement because the person would not be in a position to make any correct or conscious disclosure in a statement recorded at odd hours. When the statement made during the course of search has been retracted, then it is duty of the Assessing Officer to make further inquiries


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ACIT vs. Ajit Ramakant Phatarpekar (ITAT Panaji)


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DATE: March 16, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2010-11
FILE: Click here to view full post with file download link
CITATION:
S. 40(a)(ia): If an amount becomes taxable due to a retrospective amendment, payments prior to the amendment cannot be disallowed for want of TDS

This is a fact that the retrospective amendment brought by the Finance Act, 2010 was not in existence at the time when the Assessee had made the payments. The Assessee cannot be penalized for performing an impossible task of deducting TDS in accordance with the law which was brought into the statute book much after the point of time when the tax deduction obligation was to be discharged


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ACIT vs. Bhavook Chandraprakash Tripathi (ITAT Pune)


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DATE: March 18, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2010-11
FILE: Click here to view full post with file download link
CITATION:
S. 40(a)(ia): Merilyn Shipping 136 ITD 23 (SB) cannot be followed but Q whether the second proviso to s. 40(a)(ia) is retrospective or not requires to be considered by the AO

The legal argument that the second proviso to section 40(a)(ia) of the Act (which was inserted by the Finance Act, 2012 w.e.f 01.04.2013 to provide that the disallowance u/s 40(a)(ia) of the Act would not be made if the assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the Act) is retrospective in nature as it has been introduced to eliminate unintended consequences which may cause undue hardships to the tax payers requires to be restored to the file of the Assessing Officer


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