Search Results For: Mihir Naniwadekar


DCIT vs. The Saraswat Co-operative Bank Limited (ITAT Mumbai)

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DATE: October 31, 2016 (Date of pronouncement)
DATE: December 30, 2016 (Date of publication)
AY: 2008-09
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CITATION:
S. 14A/ Rule 8D disallowance applies also to dividends received from strategic investments in subsidiaries. S. 40A(2) disallowance is not applicable to co-operative societies. As per Circular No. 14 (XL-35) of 1955 dated 11.4.1955, the AO is obliged to assist the assessee and allow deduction even if not claimed

We are also of the considered view, that strategic investment made by the assessee in its subsidiary Saraswat Infotech Limited as well in the other securities which are capable of yielding exempt income i.e. by way of dividend etc. which are exempt from tax shall be included while computing disallowance u/s 14A of the Act as per the scheme of the Act as contained in provisions of Section 14A of the Act as the statute does not grant any exemption to the strategic investments which are capable of yielding exempt income to be excluded while computing disallowance u/s 14A of the Act and hence the investment made by the assessee in subsidiary company M/s Saraswat Infotech Limited and all other securities which are capable of yielding exempt income by way of dividend etc shall be included for the purposes of disallowance of expenditure incurred in relation to the earning of exempt income , as stipulated u/s 14A of the Act. Our decision is fortified by the recent decision of Hon’ble Karnataka High Court in the case of United Breweries Limited v. DCIT in ITA No. 419/2009 vide orders dated 31-05-2016 and also decision of the tribunal in the case of ACIT v. Uma Polymers Limited in ITA no 5366/Mum/2012 and CO No. 234/Mum/2013 vide orders dated 30-09-2015

Posted in All Judgements, Tribunal

DCIT vs. Sesa Resources Ltd (ITAT Panaji)

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DATE: April 27, 2016 (Date of pronouncement)
DATE: May 5, 2016 (Date of publication)
AY: 2009-10
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CITATION:
S. 195/ 40(a)(ia): Commission paid to non-resident agents for services rendered outside India is not liable for TDS u/s 195. The retrospective amendment to s. 195 to provide that s. 195 applies whether or not the non-resident person has a residence or place of business or business connection in India makes no difference to the legal position

As the commission agent did not have any business connection in India as they had no permanent establishment in India and in fact neither any income arose or accrued to non-resident agent in India. DCIT v/s Ardeshi B Cursetjee & Sons Ltd. 115 TTJ 916 which held that the commission paid to non-resident agent outside India for the services rendered were not chargeable to tax in India. In these circumstances, there was no occasion to deduct tax at source in respect of the payment made to the non-resident agent

Posted in All Judgements, Tribunal

Maharashtra Industrial Development Corporation (MIDC) vs. CIT (Bombay High Court)

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DATE: March 16, 2016 (Date of pronouncement)
DATE: April 15, 2016 (Date of publication)
AY: 2007-08 to 2012-13
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CITATION:
S. 220(6): An order disposing off a stay application has to objectively consider the prima facie case on merits, financial hardship and balance of convenience and give reasons for the rejection

We find that neither the Assessing Officer in the impugned orders dated 13th October, 2015 nor the Commissioner of Income Tax (Exemptions) in the order dated 25.2.2016 has dealt with the Petitioner’s primary contentions that the amounts received as lease premium and shown as deposits, cannot be taxed as income. This Court has time again set out parameters to be kept in mind while considering the stay application under Section 220(6) of the Act. the Commissioner of Income Tax (Exemptions) has completely misunderstood the scope of her powers and issues to be considered while disposing of the stay applications. In the above view, we set aside the orders dated 13th October, 2015 of the Assessing Officer and order dated 25th February, 2016… However, the Petitioner’s stay application is restored to the file of the Commissioner of Income Tax (Exemptions) for fresh disposal in accordance with law and after considering, prima facie, merits of the Petitioner’s case and in accordance with law

Posted in All Judgements, High Court

Sesa Resources Ltd vs. DCIT (Bombay High Court)

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DATE: March 7, 2016 (Date of pronouncement)
DATE: March 25, 2016 (Date of publication)
AY: 2009-10
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CITATION:
S. 195/ 40(a)(ia): Controversy whether in view of retrospective amendment to s. 195 to provide that s. 195 applies whether or not the non-resident person has a residence or place of business or business connection in India, even commission to non-resident agents for services rendered outside India is liable for TDS u/s 195 and has to suffer disallowance u/s 40(a)(ia) to be reconsidered by ITAT

In Gujarat Reclaim & Rubber Products Ltd it has been, inter alia, held that before effecting deduction at source one of the aspects to be examined is whether such income is taxable in terms of the Income Tax Act. This aspect has not been considered by the Tribunal while concluding that the Appellant has committed a default in not deducting the tax at source. As the said learned Division Bench Judgment was not available while passing the impugned order by the learned Tribunal, we find it appropriate, in the interest of justice, to quash and set aside the impugned order of the learned Tribunal to the extent it holds that the Appellant has defaulted in not deducting tax at source and remand the matter to the Tribunal to examine the said aspect afresh in the light of the judgment of this Court after hearing the parties in accordance with law

Posted in All Judgements, High Court

CIT vs. V. S. Dempo (Bombay High Court) (Full Bench)

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DATE: February 5, 2016 (Date of pronouncement)
DATE: February 12, 2016 (Date of publication)
AY: 1999-00
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CITATION:
S. 172/ 195: Shipping companies assessed u/s 172 are not subject to TDS obligations u/s 195

To our mind, the Division Bench judgment in Commissioner of Income-tax vs. Orient (Goa) Pvt. Ltd 325 ITR 554 seen in this light does not, with greatest respect, take into account the scheme and setting as understood above. There need not be apprehension because there is no escape from the levy and recovery of tax. The tax has to be levied and collected. The ship cannot leave the port or if allowed to leave any port in India, it must either pay or make arrangement to pay the tax. Hence, the apprehension of avoidance or evasion both are taken care of by the legislature. That is how advisedly the legislature cast the obligation to deduct tax at source on the person responsible to make payment to a non-resident in shipping business

Posted in All Judgements, High Court

CIT vs.  Sunny Sounds P. Ltd (Bombay High Court)

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DATE: January 8, 2016 (Date of pronouncement)
DATE: January 15, 2016 (Date of publication)
AY: -
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CITATION:
S. 268A: Though the low tax effect circular No. 21/2015 dated 10.12.2015 does not refer to references filed u/s 256(1), it has to be held to apply to references as well in view of the objective of the CBDT to focus only on large tax effect matters

One feature in support of the submission that the Circular be not applied to References could be that the References are opinions sought by the Tribunal on questions of law from this Court unlike statutory appeals filed by the parties, seeking the view of the Courts. However though these References are undoubtedly made by the Tribunal, they emanate from an application by one of the parties before it leading to the order giving rise to the question of law requiring the opinion of the Court. This in practice is similar to the statutory appeal under Section 260A of the Act being filed by a party to the High Court for the reason that, this appeal is not considered as a matter of right of the party but only if the court to which the appeal is preferred is satisfied that a substantial question of law arises and admits the appeal for further consideration. Therefore a pending appeal under Section 260A of the Act is no different from a pending Reference in as much as in the case of a Reference the Tribunal is of the view that a substantial question of law arises either on its own (Section 256(1) of the Act) or as directed by Court (Section 256(2) of the Act) which requires the opinion of the Court, while in a pending appeal under Section 260A of the Act which has been admitted, the Court is of the view that a substantial question of law arises which requires due consideration by the Court. Therefore we construe the Circular dated 10th December 2015 as applicable even to pending References in the same manner they apply to pending appeals

Posted in All Judgements, High Court

Jaya Hind Sciaky v. DCIT (Bombay High Court)

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DATE: December 18, 2015 (Date of pronouncement)
DATE: December 21, 2015 (Date of publication)
AY: 1998-89
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CITATION:
Thought there is a difference between leasehold right and ownership right as per the Transfer of Property Act, a leasehold land in the possession of the assessee for a term of 95 years is "belonging" to the assessee and is liable for wealth-tax

We find that the word ‘belonging to the company’ has advisedly been used by the Parliament in Section 40 (2) of the Act. In case the Parliament sought to equate the word ‘belonging to’ mean ownership then in such a case, there would be no reason to use the word ‘belonging to’ and in stead use the word ‘owner of”. The intent in using the word ‘belonging to’ is to include within the provisions of the Act, assets in possession of the Company without full ownership, but sufficient domain over it, to exercise the powers which would otherwise normally vest in the owner on the valuation date. Therefore, the concept of less than full ownership is sought to be introduced by the use of the word ‘belonging to’

Posted in All Judgements, High Court

CIT vs. V. S. Dempo and Company Pvt. Ltd (Bombay High Court)

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DATE: September 8, 2015 (Date of pronouncement)
DATE: September 16, 2015 (Date of publication)
AY: 1999-00, 2000-01
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CITATION:
Law laid down in CIT Vs. Orient (Goa)(P) Ltd 325 ITR 554 that s. 172 is applicable only to non-residents carrying on shipping business and not to residents and that the expenditure of demurrage charges cannot be allowed u/s 40(a)(i) in the absence of TDS does not appear to be correct and issue is referred to Full Bench

We are unable to agree with the above view of this Court in Orient (Goa)(P) Ltd. (supra). This is for the reason that the assessee placed reliance upon Section 172 of the Act in respect of payments made by it to a non-resident shipping company by way of demurrage charges. The tax which is deducted at source by the assessee company is on behalf of the recipient of the charges. The issue before the Court was whether demurrage charges which are paid by the assessee to a non-resident company would be allowed as an expenditure in the absence of deduction of tax at source in view of Section 40(a)(i) of the Act

Posted in All Judgements, High Court

Tata Business Support Services Ltd vs. DCIT (Bombay High Court)

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DATE: March 26, 2015 (Date of pronouncement)
DATE: April 8, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 147/ 148: The notice should not be in a standard format but indicate why s. 147 has been resorted to. The term "failure to disclose material facts" has a specific legal connotation. The non-disclosure has to be of a "material fact" to attract s. 147

When the Revenue alleges failure to make full and true disclosure of material facts, then, the term failure has some specific legal connotation. Here, material facts are pertaining to the expenses under the head “management fees”. It is apparent that the words employed are material facts. It is not just facts but material facts. The word “material” in the context means “important, essential, relevant, concerned with the matter, not the form of reasoning” (see Oxford Dictionary Concise Eighth Edition). Just as disclosure of every fact would not suffice but for proceeding under section 147 non disclosure ought to be of a material fact

Posted in All Judgements, High Court

Prakash K. Kankariya vs. JCIT (Bombay High Court)

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DATE: March 16, 2015 (Date of pronouncement)
DATE: March 27, 2015 (Date of publication)
AY: 2002-03
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CITATION:
In applying the ‘extrapolation’ principle of Eusafali 90 ITR 271 (SC), the AO is entitled to make an estimation based on guesswork. However, the estimate must not be arbitrary and should be based on material

The ratio of the Hon’ble Supreme Court judgment in the case of Commissioner of Income Tax vs. HM Eusafali HM Abdulala (1973) 90 ITR 271 (SC) has been explained in the later judgment of this Court in Commissioner of Income Tax vs. Dr. M.K.E. Memon 248 ITR 310 (Bom.) It is open for the Assessing Officer to make an estimation and in that process there could be a certain guess work as well. That element cannot be discarded totally

Posted in All Judgements, High Court
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