Search Results For: ITAT Ahmedabad


Milestone Tradelinks P.Ltd vs. ITO (ITAT Ahmedabad)

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DATE: March 28, 2016 (Date of pronouncement)
DATE: March 28, 2016 (Date of publication)
AY: A.Y 2006-07
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CITATION:
An order of revision passed on a non-existing entity, even though the power of attorney and the adjournment and the reply to show cause notice was signed by the erstwhile company, is invalid. The Tribunal held that the case of estoppel relied on by the department cannot be applied to instant case as assessee did not behave in a notorious way to mislead the department. Taking cognizance of the intimation filed by the assessee to the jurisdictional AO that the company is not is existence, during the assessment proceedings, of the intervening assessment years, and there being no provision in law to intimate the CIT regarding the facts of merger, the ITAT held the order to be invalid.

In the Income Tax Act, there is no provision to communicate this fact to the Commissioner. The assessee has already informed the AO. We have extracted the copy of the letter written by the assessee. We have also made reference of the assessment order vide which the AO has taken cognizance of this fact while he issued notice under section 143(2) of the Income Tax Act. In the order of the ITAT, Kolkata Bench itself has observed that legally when a company amalgamates with another, it loses its identity and no proceedings can be taken in its earlier name. The Bench had taken a different view on account of notorious facts available in that case. No such circumstances are before us. Apart from above, we are of the view that even if the assessee gave consent for taking up the proceedings under section 263 against it, that would not infuse jurisdiction in the ld.Commissioner. In other words, this adjournment application, reply to show cause notice would not infuse jurisdiction to ld.Commissioner. Jurisdiction should be by virtue of operation of the Act and not by the consent of an assessee. A perusal of section 263 would indicate that before taking any action under section 263, the ld.Commissioner has to pursue record and record would include the communication made by the assessee to the AO on 23.7.2013 intimating about the fact of amalgamation

DCIT vs. Soma Textiles & Industries Ltd (ITAT Ahmedabad)

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DATE: December 15, 2015 (Date of pronouncement)
DATE: December 16, 2015 (Date of publication)
AY: -
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S. 268A: In view of CBDT's Circular no. 21/ 2015 dated 10.12.2015 appeals of the department where the monetary limit does not exceed Rs. 10 lakh have to be dismissed as a legal nullity. CBDT's decision termed as "paradigm shift", "unprecedented" and "possibly a game changing initiative heralding a new era in thoughtful litigation management"

We need to take note of a very pragmatic initiative, taken by the Central Board of Direct Taxes last week, for reducing litigation in direct taxes. Vide circular no. 21/ 2015 dated 10th December 2015, the Central Board of Direct Taxes has, inter alia, announced that, subject to certain exceptions- which are not relevant in the present context, henceforth, no departmental appeals will be filed against relief given by the CIT(A), before this Tribunal, unless the tax effect, excluding interest, exceeds Rs 10,00,000. What is even more important is that not only that such a taxpayer friendly measure will be implemented in all future tax litigation, even the pending appeals, wherever the tax involved in the appeals does not exceed Rs 10,00,000, shall not be pressed or withdrawn. In effect thus, irrespective of the year to which the departmental appeal before the Tribunal pertains, as long as such an appeal is pending before the Tribunal, this will be a legal nullity

Micro Ink Limited vs. ACIT (ITAT Ahmedabad)

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DATE: November 27, 2015 (Date of pronouncement)
DATE: December 3, 2015 (Date of publication)
AY: 2006-07
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CITATION:
Entire law on transfer pricing implications of (i) allowing excess credit to AE's on account of sale of goods and (ii) issue of corporate guarantee to AEs (after insertion of Explanation i(c) to s. 92B by FA 2012) explained

If the international transaction of exports of goods which has been benchmarked on TNMM basis is duly accepted by the TPO, making an adjustment for interest on excess credit allowed on sales to AEs will vitiate the picture, inasmuch as what has already been factored in the TNMM analysis, by taking operating profit figure which incorporate financial impact of the excess credit period allowed, will be adjusted again separately as well because the interest levy for late realization of debtors is inextricably connected with the sales and is also part of operating income. When such an interest is includible in operating income and the operating income itself has been accepted as reasonable under the TNMM, there cannot be an occasion to make adjustment for notional interest on delayed realization of debtors

Soma Textile & Industries Limited vs. ACIT (ITAT Ahmedabad)

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DATE: July 7, 2015 (Date of pronouncement)
DATE: July 10, 2015 (Date of publication)
AY: 2007-08
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CITATION:
Transfer Pricing: Even if the loan to the 100% subsidiary is intended to be a long term investment in the subsidiary and it has a crucial role to play in the assessee's business plans, it cannot be treated as "quasi capital". The ALP of the loan has to be determined on the basis of LIBOR interest

The expression ‘quasi capital’ is relevant from the point of view of highlighting that a quasi-capital loan or advance is not a routine loan transaction simplictor. The substantive reward for such a loan transaction is not interest but opportunity to own capital. As a corollary to this position, in the cases of quasi capital loans or advances, the comparison of the quasi capital loans is not with the commercial borrowings but with the loans or advances which are given in the same or similar situations

Shri Umeya Corporation vs. ITO (ITAT Ahmedabad)

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DATE: July 7, 2015 (Date of pronouncement)
DATE: July 10, 2015 (Date of publication)
AY: 2006-07
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CITATION:
S. 80-IB(10): To be the "developer" of a housing project, the assessee has to undertake the entrepreneurship risk in execution of the project. He need not be the owner of the land. S. 40(a)(ia): The amendment is clarificatory and retrospective w.e.f. 01.04.2005

In order to answer the question as to whether the condition precedent for deduction under section 80IB has been satisfied inasmuch as whether or not the assessee is engaged in “developing and building housing projects”, all that is material is whether assessee is taking the entrepreneurship risk in execution of such project. When profits or losses, as a result of execution of project as such, belong predominantly to the assessee, the assessee is obviously taking the entrepreneurship risk qua the project and is, accordingly, eligible for deduction under section 80IB(10) in respect of the same. The assumption of such an entrepreneurship risk is not dependent on ownership of the land

DCIT vs. Jyoti Ltd (ITAT Ahmedabad)

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DATE: June 25, 2015 (Date of pronouncement)
DATE: June 30, 2015 (Date of publication)
AY: 2005-06 to 2007-08
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CITATION:
S. 43B(e): Conversion of outstanding interest into a loan does not constitute "actual payment" of the interest so as to qualify for deduction

On perusing Section 43B(e), it is seen that interest on any loan or advance from a schedule bank, in accordance with terms and conditions of the agreement governing such loans or advance, would be allowed as deduction in the previous year in which sum is actually paid by the Assessee

DCIT vs. Ohm Developers (ITAT Ahmedabad)

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DATE: May 8, 2015 (Date of pronouncement)
DATE: June 1, 2015 (Date of publication)
AY: 1990-91 to 1999-00
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CITATION:
'On-Money' received by a builder on sale of flats held as stock-in-trade is taxable only in the year of sale of the flats and not in the year of offer/ disclosure

In the light of the judgement of Hon’ble Gujarat High Court rendered in the case of CIT vs. Motilal C.Patel and Co. reported at 173 ITR 666 (Guj.), such amount can be subjected to tax when sale-deed is actually executed. Since the Hon’ble Gujarat High Court has held that the amount would become for the assessment year in which the sale transaction is completed. In the case in hand, it is not disputed that sale deeds were executed in the year subsequent to the year under appeal. Therefore, in view of the binding precedent, we are of the considered view that the authorities below were not justified in taxing the amount including ‘on money’ during the year under appeal

Jupiter Corporation Services Limited vs. DCIT (ITAT Ahmedabad)

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DATE: April 24, 2015 (Date of pronouncement)
DATE: April 25, 2015 (Date of publication)
AY: 1996-97
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CITATION:
S. 255(4): Even if Third Member's verdict is shown to be “unsustainable in law and in complete disregard to binding judicial precedents”, Division Bench has no choice but to give effect to it

At the time of giving effect to the majority view under section 255(4), it cannot normally be open to the Tribunal to go beyond the exercise of giving effect to the majority views, howsoever mechanical it may seem. In the case of dissenting situations on the division bench, the process of judicial adjudication is complete when the third member, nominated by Hon’ble President, resolves the impasse by expressing his views and thus enabling a majority view on the point or points of difference. What then remains for the division bench is simply identifying the majority view and dispose of the appeal on the basis of the majority views. In the course of this exercise, it is not open to the division bench to revisit the adjudication process and start examining the legal issues

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
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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

Amitkumar Ambalal Shah vs. ITO (ITAT Ahmedabad)

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DATE: October 30, 2014 (Date of pronouncement)
DATE: October 31, 2014 (Date of publication)
AY: 2009-10
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CITATION:
S. 2(47): Transfer takes place in year of execution of sale deed, handing over of possession & receipt of sale consideration & is not deferred to year of registration. Verdict in Suraj Lamp and Industries 340 ITR 1 (SC) explained

The Tribunal had to consider whether capital gains are assessable in AY 2008-09, being the year when the sale deed was executed and possession handed over and most of the sale consideration was received or in AY 2009-10 when the

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