Category: Tribunal

Archive for the ‘Tribunal’ Category


Inderlok Hotels vs. ITO (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: March 2, 2009 (Date of publication)
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CITATION:

Though s. 50C has been introduced by the Legislature to check the modus operandi of understating the sale consideration in the activity of civil construction and provides that the value determined or assessed by the stamp duty authorities shall be deemed to be the “full value of consideration”, its scope is confined to property held as a “capital asset”. It has no application to property held as “stock-in-trade”. Accordingly, additions on account of s. 50C cannot be made in the case of dealers in real estate.

ACIT vs. Indexport Ltd (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: February 26, 2009 (Date of publication)
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CITATION:

Where the AO made a disallowance u/s 14A by estimating 10% of the expenses as being attributable to the tax free receipts and in the appeal before the Tribunal the department argued that in view of the judgement of the Special Bench of the ITAT in Daga Capital 26 SOT 603 the matter had to be remanded to the AO for applicability of Rule 8D and the judgement in Assam Travels 199 ITR 1 (SC) was relied on to contend that the remand could result in a larger disallowance than had been calculated by the AO, HELD that:

 

(i) While the matter had to be remitted to the AO to recalculate the disallowance under Rule 8D as held by the Special Bench, the assessee could not be worse off than it would have been if it had not filed an appeal against the assessment order. Accordingly, the AO was directed to restrict the disallowance to the original figure.

ACIT vs. Supreme Industries Limited (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: February 26, 2009 (Date of publication)
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CITATION:

The judgement of the Supreme Court in UOI vs. Dharmendra Textile Processors 174 TM 571 fortifies the interpretation that where the assessee offers an explanation, the onus is on the assessee to substantiate the explanation or prove the bona fides and show that there is full disclosure of all the facts relating to the explanation. The AO is not obliged to prove that there was a wilful attempt by the assessee or that the explanation of the assessee is not bona fide;

DDIT vs. Stock Engineer Contractor (ITAT Bombay)

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DATE: (Date of pronouncement)
DATE: February 13, 2009 (Date of publication)
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CITATION:

No Permanent Establishment if only personnel supplied. (1) Where a Malaysian company supplied technical personnel to the assessee (a Dutch company) on terms that the personnel would remain under the control of the assessee and that the Malaysian company would

DaimlerChrysler India vs. DCIT (ITAT Pune)

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DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
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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;

New Shailaja CHS vs. ITO (ITAT Mumbai)

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DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
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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)

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DATE: (Date of pronouncement)
DATE: January 28, 2009 (Date of publication)
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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)

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

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

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

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DATE: (Date of pronouncement)
DATE: January 14, 2009 (Date of publication)
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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.

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