Digest Of Important Case Laws – June 2014

S. 2(22)(e) : Deemed dividend- Not share  holder-Provision is not applicable.

In the present case, the assessee company was engaged in the business of providing computer services. Its shares were held by a  company ‘V’ and Three individuals by name ‘K’ ‘R’ and ‘S’ to the extent of 64%  32% 2% and 2% respectively. Further the entire shares of company ‘V were held by ‘R’ & ‘S’. During the previous year, the assessee had received a loan from company ‘V’. The A.O. treated the amount of loan as deemed dividend under section 2(22) (e) of the Act. On appeal C.I.T. (A) held that to invoke the provisions of section 2(22) (e), the assessee must be shareholder in the company which gave loan. Since the assessee was not a shareholder the loan in question could not be treated as deemed dividend in the hands of the assesee under section 2(22) (e ) of the Act. The Tribunal upheld the order of the C.I.T. (A) and dismissed the Departments appeal on the ground that since the intention of legislature behind the provisions of section 2(22)(e) is to tax dividend in hands of shareholder and assesee company was not a shareholder in company ‘V’  deeming provisions of section 2(22) (e) of the Act were not applicable to the instant case. (AY. 2006 – 2007)

ACIT v. Source Hub India (P) Ltd. (2014) 61 SOT 111 (Bang)(Trib)

S. 4 : Income chargeable to tax-Capital or revenue-Profit on repatriation of foreign exchange on account of variation in forex rate-Capital receipt.

The assesse had issued Euro Notes in 1997 for raising funds for capital expenditure programmes. The entire proceeds raised abroad were held in interest for a period of three years pending deployment and utilization. During the year ending 31 st March 2011, the funds were repatriated to India as per the requirement of Reserve Bank of India.  As a result of  fall in value of the Indian Rupee , a gain in terms of the repatriation of funds has arisen. Assessee credited the said in to P&L account however for taxation the said gain was treated as capital in nature. The AO treated  the said gain as revenue in nature. On appeal  Tribunal decided the issue in favour of assesse. On appeal by revenue  the Court held that the purpose for which the notes were raised was “ capital” .The gain arose not in the course of trading activities but due to conversion of the currency of one country in to the currency of another country. The gain is therefore on account of capital and not in the nature of income. Further the gain has arisen at that point of time when the funds were repatriated to India. If the Notes were issued for meeting capital expenditure , and remained outside India, the taxability has to be determined at the point of time when the profit arose . The subsequent utlilisation was irrelevant.(ITA no 251 of 2012 dt 11-06-2014 (AY.2001-02 )

CIT v. Tata Power Co. (Bom.)(HC)(Unreported)

S. 5 : Income – Accrual of Income – Retention money under contract released on furnishing of bank guarantee – Retains it character as retention money and cannot be equated with the right to receive such amount the dominant control over the amount remained with the contractee’. [S.145]

Money retained under the contract for satisfactory completion of the work which was released only upon the satisfactory completion of the contract and would be adjusted against the amount due if it was found that execution of work was not satisfactory, did not accrued to the assessee, even though the amount was received by assessee by furnishing bank guarantee. (AY. 1992 – 93)

Amarshiv Construction (P) Ltd. v. Dy. CIT (2014) 102 DTR 33 / 223 Taxman 171

(Mag.)(Guj.)(HC)

S. 9(1)(i) : Income Deemed to accrue or arise in India-Business income-Commission foreign  agent- Not liable to deduct tax at source.[S. 40 (a) (ia), 195]

In the present case assessee exporter claimed deduction on commission paid to agents abroad who were canvasing for assessee in overseas market. During the relevant assessment year when assessee had affected payments to foreign agents, such payments were not income of non-residents eligible for tax in India.  The Tribunal held that subsequent circular allegedly withdrawing benefits given to assessee, nor addition of explanation to section 9(2) through Finance Act, w.e.f. from 1-6-1976 would have no effect on the taxability of such income earned by non-residents agents outside India during relevant year in course of his business or profession carried out outside India. (AY. 2008-2009)

ACIT v. Capricorn Food products India Ltd. (2014) 61 SOT 176 (Chennai)(Trib)

S. 9(1)(vi) : Income deemed to accrue or arise in India –  Royalty -Amount received under the license agreement for allowing the use of software  is not royalty-DTAA-India-USA.[S.90,  Art, 7, 12]

License Agreement was entered between India & USA. According to which the license was non-exclusive, non transferable and the software were to be used in accordance with the agreement. The revenue treated the amount received by the assessee under the license agreement for allowing the use of software as Royalty under DTAA between India & USA. On appeal, the court held in favour of assessee and held that right to use a copyright in a programme is totally different from the right to use a programme embedded in a cassette or a CD which may be a software and the payment made for the same cannot be said to be received as consideration for the use of or right to use of any copyright to bring it within the definition of royalty as given in the DTAA. Amount received under the license agreement for allowing the use of software is not Royalty under DTAA between India & USA. What was transferred was neither the copyright in the software nor the use of the copyright in the software, but what is transferred is the right to use the copyrighted material or article which is clearly district from the rights in a copyright. Right that is transferred is not a right to use the copyright but is only limited to the right to use the copyrighted material and the same did not give rise to any royalty income and would be business income.

DIT v. Infrasoft Ltd. (2014)254 CTR 329(Delhi)(HC)

S. 9(1)(vi) : Income deemed to accrue or arise in India– Royalty-Permanent establishment-Rights in television programmes, motion pictures and sports events and exhibiting same on its television channels from Sigapore-Not taxable in India-Not liable to deduct tax at source-DTAA-India-Singapore[S.195, Art 12]]

The assesse is a Singapore based company engaged in business of acquiring rights in television programmes motion pictures and sports events and exhibiting same on television channels from Sigapore .It entered in to an agreement with Global Cricket Corporation(GCC)  also tax resident of Singpore , under which GCC granted telecast rights to assesse through out licence territory which included India . AO held that payment made by assesse to GCC for acquisition of telecast rights was royalty and was chargeable to tax in India. In appeal CIT(A) and Tribunal held that payment was not taxable in India in as much as liability for payment was incurred by assesse in connection with broadcasting operations in Singapore and that had no connection with marketing activities carried out though its alleged permanent establishment in India. On appeal by revenue , dismissing the appeal the  Court observed that the alleged permanent establishment of assesse in India , the Tribunal’s finding of fact is that the economic links entirely with the assessee’s head office in Singapore .The payment to GCC cannot be said to have been incurred in connection with the appellant’s permanent establishment  in India. The Court affirmed the view of Tribunal and held that no substantial question of law arise out of order of Tribunal. Order of Tribunal was affirmed.

DIT(IT) v. Set Statellite (Singapore) Pte Ltd. (2014) 225 Taxman 1 (Bom.)(HC)

S. 9(1)(vii) : Income deemed to accrue or arise in India – Fees for technical services-Subsidiary-Reimbursement of expenses-Matter remanded.  [S.40(a)(i), 195]

In the present case, assessee company paid certain sum to its subsidiary, TAFE Inc. USA & others without deducting tax at source on the ground that such payment was purely reimbursement of expenses. A.O. however held, that nature and services, rendered by ‘TAFE’ fell within ambit of ‘fees for technical services ‘ and he, accordingly, disallowed payment under section 40(a)(i). As the agreement between the assessee and ‘TAFE’ was not examined by the lower authority & also  question whether services rendered by ‘TAFE” fell within ambit of ‘technical serves under DTAA was not verified, matter was remanded back. (AY. 2006-2007)

ACIT v. Tractor & Farm Equipment Ltd. (2014) 61 SOT 190 (Chennai)(Trib.)

S.9(1)(vii) : Income deemed to accrue or arise in India – Fees for technical services -Business profits-Design and Engineering-Since technical supervision was provided by assessee, it could not be said that assessee was doing construction work-Assessee was liable to be taxed at rate of 10% as per section 9(1)(vii), read with section 115A- DTAA-India-Russia. [S.90,115A, Art 7, 12]

Assessee a foreign company, was dealing in construction of pipelines. Assessee company was duly registered under laws of Russia. It entered into a consortium agreement with Kalpataru Power Transmission Limited (KPTL). Consortium made a bid for PDPL project of Gas authority of India Ltd (GAIL), and was finally awarded contract by GAIL. Assessee Company further entered into a co-operation agreement with KPTL. As per said agreement, substantial work for executing contract was to be undertaken by KPTL by deploying all required input resources and assessee-company would provide its technical guidance and consultancy for project management and specialized manpower was also to be supplied by assessee-company.  Assessee-company would get 3 per cent of contract receipts as full consideration for its contribution in project and KPTL would be entitled to 96 per cent of contract value and remaining 1 per cent would be used to meet expenses of consortium. Assessee-company had offered income arising out of PDPL project at rate of 10 per cent, claiming it to be ‘fees for technical services’, as per Article 12. AO found that all mainline activities required to be performed for construction of said pipeline were to be carried out solely by assessee-company or jointly by it with KPTL, or by KPTL under guidance of assessee-company. He held that income from said project was taxable as business profits at rate of 40 per cent as per article 5(2)(i) read with article 7.CIT(A) following the earlier decision of Tribunal  directed the AO to apply the provisions of Sub clause (BB)  of clause (b) of sub section (1) of Section 115JA along with Section 9(1)(vii) of the Act. On appeal by revenue  the Tribunal by following the earlier years identical facts, had treated income of assessee as FTS on grounds that assessee was required to provide design and engineering of various aspects and was also required for preparing welding procedure, review work procedure for pipeline laying and in addition to this, assessee was required to depute experts for site review and implementation by KPTL. It was held that, since technical supervision was provided by assessee, it could not be said that assessee was doing construction work. Income of assessee was liable to be taxed at rate of 10% as per section 9(1)(vii), read with section 115A and not at the rate of 40% as business  profits. Matter was set aside to the  AO only for verification that whether 96 percent receipts of contract has been disclosed by assesse  in case of KPTL   and tax had been paid on it .Order of CIT(A)  was affirned.(AY. 2009 – 2010)

ACIT(IT) v. Joint Stock Company Zangas (2014) 149 ITD 9 / 44 taxmann.com 429 (Ahd.)(Trib.)

S.9(1)(vii) : Income deemed to accrue or arise in India – Fees for technical services–Various services-No sufficient material to suggest–Not fees for technical services-DTAA-India-Netherland. [S.90, 195, Art. 7, 12]

Holding Company of the Applicant agreed to provide various services like (a) general management (b) international operations (c) Legal advisory (d) tax advisory  (e) Controlling & accounting & reporting (f) Corporate communication (g) Human resources & (h) Corporate development ,mergers & acquisitions. The Revenue contended that services availed by the applicant were consultancy services & were covered by the definition of fees for technical services even as per Art.12 of the India- Netherland Tax treaty. Authority for Advance  Rulings held in favour of the applicant and held that the transaction was for genuine business purpose for the benefit of both the parties. There was no sufficient materials on facts and circumstances made available which suggest that the transaction was an arrangement solely for the purpose of avoidance of Tax and therefore requirement of the “make available Clause” in the Art 12 (5) of India- Netherlands tax treaty was not satisfied and hence the payment for the services would not come under “Fees for technical services” under the Tax treaty.

Endemol India (P) Ltd. (2014) 264 CTR 117 / 223 Taxman 183 (Mag.) / 361 ITR 340 (AAR)

S. 10(23G) : Infrastructure facility-Bonds-Exemption-Notification-Pre-condition of notification in Official Gazette is not applicable to bonds purchased by assesse during financial year 1997-98.

The Court held that once the bonds which had been issued, in respect of which exemption was claimed by assesse were issued on February 18, 1998, the requirement of notification in the Official Gazette as a condition precedent for exemption under section 10(23G)  of the Act was inapplicable. Therefore the Tribunal was correct in holding that the pre-condition of notification in the Official Gazette , introduced by the Finance, Act ,1997 ,with effect from April 1, 1988 was not applicable to the bonds purchased by the assesse during the financial year 1997-98 relevant assessment year 1998-99. Appeal of revenue was dismissed .(AY.1998-99)

CIT v. Lord Krishna Bank Ltd. (2014) 366 ITR 416 / 107 DTR 138 (Bom.)(HC) 

 

S.10A : Free trade zone –Export turn over-Total turnover.

AO had reduced telecommunication and travelling expenses from export turnover. Tribunal held same was also to be excluded from total turnover for computing deduction under section 10A.Followed CIT v. Tata Elxsi Ltd (2012) 349 ITR 98 (Karn)(HC)(2007-08)

Witness Systems Software India (P) Ltd. v. Dy. CIT (2014) 61 SOT 64 (URO) / (2013) 34 taxmann.com 183 (Bang.)(Trib.)  

 

S.10B: Export oriented undertaking -Training fees-Not profits and gains derived from export oriented undertaking-Deduction  is not allowable.

The assessee being 100% export oriented unit claimed exemption u/s.10B of the Act on the income received by them as by way of training fees. The AO disallowed the claim on the view that the relationship between the assessee and the trainees was not that of the employer and employees and training was given to the outsiders. On appeal CIT (A) allowed the appeal as training being recognized as part of software development in the EOU, the receipt from training the programme was exempt u/s 10B of the IT Act. On appeal in Tribunal dismissed assesses appeal and held that as income falling under 10B was earned as fee received by the assesse for imparting training to outsiders by using some infrastructure which might be lying idle as the assesse had not exported any article or goods or software during the period relevant to the assessment year under consideration. On an appeal  the Court held that on admitted facts, the receipt was related to a fee charged by it, on the training of Professionals who are admittedly not its employees and that the profits and gains not being one rising on account of manufacture or production of an article or thing, the benefit u/s 10B has no relevance. Further the court held that the assessee shows that the receipts come clearly within the language of the section, it is not possible for the court to give an elastic interpretation to the clear words based on tax treatment under different enactments or the schemes formulated for setting up of industries in a particular area or zone. (AYs. 1996-97, 1997-98, 1999-2000)

Penta Medi Graphica Ltd. .v. CIT (2014) 264 CTR 543 (Mad.)(HC)

  

S.10B : Export oriented undertaking-Trading-Granite monumental slabs-Eligible for deduction.

The assessee is a manufacturer and exporter of granite monumental slabs. During the course of the assessment proceedings the Assessing Officer noticed that the assessee company has purchased granites to the extent of Rs.42,62,996/- and the same was exported. The only question before us is whether the assessee is eligible for the deduction under section 10B in respect of trading profits or not. The Tribunal held that in the case of T. Two International (P) Ltd. v. ITO (26 SOT 583) (Mum) has observed that to allow deduction u/s 10A the material consideration is export of eligible goods and not whether those goods are manufactured or purchased by the assessee. Profits from both, the self-manufactured as well as trading in goods have been made eligible for deduction u/s 10A of the Act. However, this court is of the opinion that section 10A and section 10B are similar. The Tribunal followed its own order in the case of T. Two International (P) Ltd. (supra) and allowed assessee’s Appeal. (AY. 2005-06)

GTP Granites Ltd. v. ACIT (2014) 61 SOT 36(URO.) / (2013) 26 ITR 369 (Chennai)(Trib.)

S. 11 : Property held for charitable purposes- Depreciation – Not allowable in respect of assets – The cost of which was already been allowed as application of income. [S.32]

Depreciation was not allowable in respect of assets, the cost of which has already been allowed as application of income. (AY. 2006–07, 2007 – 08)

DIT (E) v. Charanjiv Charitable Trust (2014) 102 DTR 1 / 267 CTR 305 (Delhi)(HC)

S. 11 : Property held for charitable purposes –Once certificate of registration is granted-Exemption cannot be denied. [S. 12A]

Once certificate of registration is issued to a Trust, the requirements of provision 12A stands fulfilled. Hence, exemption u/s 11 cannot be denied.(AY. 2003 – 2004, 2006 – 2007)

CIT v. Lucknow Development Authority (2014) 265 CTR 433 / (2013) 219 Taxman 162 (All.)(HC)

S. 11 : Property held for charitable purposes – Application of income – Purchase of land – Conditions complied. [S.12]

Assessee was running a school and declared nil total income. The Assessing officer held that Assessee spent less than 85 percent of total income and for claiming deduction u/s 11 & 12. Assessee had to apply 85 percent of its income for charities as per section 11(1)(a), Further Assessee had not filed form No. 10 intimating intention of accumulation over and above 15 percent of its income. Therefore deduction u/s 11(2) cannot be allowed. AO made addition of shortfall of application of income. The CIT (A) reversed action of AO by applying the judgment of CIT v. Mayur Foundation reported in 274 ITR 562. The Tribunal upheld the order of CIT (A) holding that the genuineness of the trust was not in doubt; that the trust had set apart the amount of donation for the purpose of purchasing land and constructing an orphanage thereupon; that the funds received by way of donations had been kept apart in fixed deposits of nationalized banks; and that the trustees or the settlers had not benefited by the failure or delay on the part of the trust to give notice of such accumulation. Accordingly, the Tribunal held that the assessee-trust had complied with all the requirements stipulated by the provisions of section 11(2). (AY. 2006-07)

Jt. CIT v. Sewa Education Trust (2014) 61 SOT 4 (URO.)(Agra) (Trib.)

S. 11 : Property held for charitable purposes-Publishing activity – Running its business on commercial lines with an object to establish a large publishing house, order denying exemption of income  was upheld   [S.2(15),12A].

Assessee-trust was registered with Director (E) under section 12A. Activity being carried out by trust was publishing of a daily newspaper. Assessee claimed that its publishing activity was in national interest and, therefore, must be considered as towards a charitable object. Revenue authorities, however, opined that assessee was engaged only in publication activity, undertaken on commercial lines in an organized and systematic manner, so that it constituted a business activity. Accordingly, assessee’s claim for exemption of income under section 11 was rejected. On appeal Tribunal held that the income to be applied for charitable purposes is that derived from property held under trust. The property held under trust being not specifically defined would, therefore, have to be read as without limitation. The only limitation stipulated is per sub-sections (4) and (4A) of section 11, and is in respect of a business undertaking. The same stipulates that only where the business is incidental to the attainment of the objective/s of the trust, that, separate books of account being maintained in its respect, could a business undertaking be considered as a property held under trust. Section 11(1) is to be read in conjunction and harmony with sections 11(4) and 11(4A). It is, thus, only the business undertaking which qualifies as a property held under trust whose income would be eligible for exemption under section 11(1). Given the orders by the Tribunal in the assessee’s own case for some of the years under appeal, which have become final, as well as reliance thereon for other years, all that the assessee was required to exhibit in the set aside (or otherwise) assessment proceedings was of the publication business as being incidental to the attainment of its other objects, i.e., as a fact, toward satisfaction of the requirement of the law under sections 11(4) and 11(4A), for the said business to be considered as property held under trust. That the said business does not by itself constitute a charitable object or purpose is no longer res integra in view of the findings by the Tribunal in its own case as well as the law as explained in Ideal Publications Trust v. CIT [2008] 305 ITR 143/172 Taxman 199 (Ker.). Certainly, there would be no surplus from the business as the profits generated would be required to meet the funding requirements of its capital expenditure as well as concomitant financial obligations, including servicing of debt. The focus of the management is clear, i.e., to set up a large, if not a grandiose publishing house. No wonder the assessee has not been able to generate a ‘surplus’ (for charitable purposes) in the two decades of its functioning, and despite being run on commercial lines. The plea of no surplus, which is even otherwise not maintainable, is false.(AY.1998-99, 2000-01, 2003-04, 2007-08,2008-09)

Prabodhan Prakashan v. ITO (2014) 61 SOT 167/(2013) 38 taxmann.com 125.  (Mum.)(Trib.) 

S. 14A : Disallowance of expenditure-Exempt income- Prospective in nature and not applicable for assessment years prior to A.Y. 2008–09. [R.8D]

Sub – Sections (2) and (3) of section 14 A of the Act inserted with effect from 01.04.2007 and Rule 8 D of the Income tax Rules, 1962 inserted in the Rules on 24.03.2008 are not procedural and apply prospectively from assessment year 2008 – 09 onwards. (AYs. 2001 – 02, 2004 – 05, 2005 – 06)

Birla Corporation Ltd. v. CIT (2014) 102 DTR 264 / 267 CTR 540 / 43 taxmann.com 267 (Cal.)(HC)

S. 14A : Disallowance of expenditure – Exempt income – For Rule 8D(2)(i) only expenditure relating to investments resulting in tax-free income can be considered. For Rule 8D(2)(iii) all investments, whether yielding tax-free income or not, have to be considered. [R.8D]

The Tribunal had to consider whether in computing the figure of disallowance under Rule 8D(2)(i) and 8D(2)(iii), it was necessary that the investments had to have yielded income which was not chargeable to tax. HELD by the Tribunal:

Rule 8D(2)(i) speaks of expenditure directly relating to income which does not form part of “total income”. In the context of s. 2(45) & s. 5, the expression ‘total income’ in Rule 8D(2)(i) must relate to an income which is sought to be assessed. Therefore, only expenditure directly relating to income which is earned either on receipt basis or on accrual basis and which does not form part of total income of a particular assessment year can be disallowed under clause (i) of Rule 8D(2). However, while computing disallowance under Rule 8D(2)(iii), the average of the total investment of the assessee as appearing in the balance sheet on the first day and last day of the year irrespective of the fact whether it has yielded income or not can be considered for the purpose of disallowance. ( ITA No. 1743/Hyd/2013, Dt. 28.04.2014.) (AY.2009-10)

Bellwether Microfinance fund Pvt. Ltd. v. ITO (Hyd.)(Trib.) www.itatonline.org.

S. 14A : Disallowance of expenditure – Exempt income – No disallowance can be made if there is no exempt income. Cheminvest (SB) & CBDT Circular are not good law.[R.8D]

In AY 2009-10, the assessee held investments worth Rs. 14.05 crore and incurred interest expenditure of Rs. 34.80 lakhs. The assessee claimed that no disallowance u/s 14A & Rule 8D could be made as the investments were made out of own funds and no income was derived from the investments. The AO rejected the claim and made a disallowance of Rs. 19.28 lakhs though the CIT(A) deleted it. Before the Tribunal the department relied on Cheminvest Ltd v. ITO (2009) 121 ITD 318 (SB) & Circular No.5/2014 dated 11.2.2014 and argued that even if the assessee has not earned any exempt income, still disallowance u/s 14A read with Rule 8D has to be made and it is mandatory. HELD by the Tribunal dismissing the appeal:

No doubt in Cheminvest Ltd vs. ITO (2009) 121 ITD 318 (SB) the Special Bench of the Tribunal has held that disallowance u/s 14A can be made even in the year in which no exempt income has been earned or received by the assessee. This decision of Special Bench of the Tribunal has been impliedly overruled by the decisions of High Courts in Shivam Motors P Ltd (All HC), CIT vs. Corrtech Energy Pvt. Ltd (Guj HC), CIT vs. Delite Enterprises (Bom HC), CIT vs. Lakhani Marketing (P&H HC), CIT vs. Winsome Textiles Industries Ltd  (2009) 319 ITR 204 (P&H) where it has been held that when there is no exempt income and no claim for exemption, s. 14A and Rule 8D have no application and no disallowance can be made. (ITA No. 1717/Mds/2013, A.Y. 2009-10, Dt. 31/07/2014.) (AY.2009-10)

ACIT v. Baskaran (Chennai) (Trib)www.itatonline.org

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