|Digest of important case law – May 2012|
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Journals Referred : BCAJ, CTR, DTR, ITD, ITR, ITR (Trib), Income Tax Review, SOT, Taxman, Taxation, TLR, TTJ, BCAJ, ACAJ, www.itatonline.org
S.2(15):Definitions- Charitable purpose – Publication of books, booklets as reference material by the public as well as the professionals in respect of bank audit, tax audit etc cannot be construed as commercial activities hence approval under section 80G(5) cannot be denied (S.80G(5).
The assessee trust is a society one of the objects of the trust is to publish books, booklets etc. on professional subjects. The assessee trust filed an application in form 10G for grant of renewal under section 80G of the Act. The renewal was rejected on the ground that the assessee was publishing and selling books of professional interest and its activities are commercial in nature. On appeal the Tribunal held that the activities of selling books could be considered as a part of ongoing education of chartered accountants , which in turn would help the society to get better, well-equipped and skilled set of chartered accountants for maintaining audit quality. The Tribunal allowed the appeal and held that the assessee is entitled to approval under section 8OG. On appeal by revenue the Court up held the order of Tribunal and held that activities of the assessee trust in publishing and selling books of professional interest which are meant to be used as reference material by general public as well as the professional in respect of bank audit, tax audit etc. cannot be construed as commercial activities and therefore, assessee trust formed with the object inter alia to conduct periodical meetings on professional subjects is entitled to approval under section 80G (5).
DIT v. The Chartered Accountants Study Circle ( 2012) 70 DTR 219( Mad) (High Court)
S. 2(15): Definitions – Charitable Purpose – Expression “education” – Coaching class by open university or distance education cannot be construed as “education” for charitable purpose. (S. 11, 12A)
A mere coaching class for preparing the students to attend the examination conducted by open university or by the other university or distance education cannot considered to be regular and systematic schooling within the meaning of Section 2(15). For the purpose of section 2(15), the assessee has to necessarily conduct a regular school/ college in which the students are imparted education, knowledge, training which result in confirmament of degree or diploma by government or government agency or university, cannot be considered as Charitable activity within the meaning of section 2(15), therefore the assessee is not entitled to exemption under section 11. (AY 2005-06)
Dy. DIT v. Kuttukaran Foundation (2012) 51 SOT 175 ( Cochin) (Trib)
2(22): Definitions-Dividend-Buy back shares-Capital gains- DTAA- India-Mauritius- Scheme for buy back shares to avoid tax in India – Profits arising to be treated as deemed dividend and taxable in India – Hence liable to deduct tax at source [S. 46A, 1150, 195, 245R (2) DTAA-article 10(2) (4) 13(4)]
The applicant is a company incorporated in India , 48.87 percent , of whose shares were held by a group holding company in the U.S.A, 25.06 percent by a group holding in Mauritius , 27.37 percent by a group holding company in Singapore and 1.76 percent by the general public. On June 15 , 2010 , the board of directors of the applicant passed a resolution proposing a scheme of buy back of its shares from its existing share holders in accordance with section 77A of the Companies Act 1956. Mauritius company which acquired the shares sought advance ruling on whether the capital gains that may arise , were chargeable to tax in India in the context of the Double Taxation Avoidance Agreement between India and Mauritius and whether it would have the obligation to with hold the tax in terms of section 195 of the Income-tax Act ,1961.The authority for advance ruling while admitting the application under section 245R(2) of the Act for a ruling, held that the Authority can look in to avoidance of tax and whether the transaction is colourable. On the facts of the case the Authority held that the applicant had not paid dividend to any of the share holders after April 1, 2003 ,on which date section 115-0 of the Act was introduced .Neither the holding company in the U.S.A .nor that in Singapore accepted the offer of buy- back for obvious reasons that it would have been taxable in India as capital gains .There was no proper application on the part of the applicant why no dividends were declared subsequent 2003, when the company was regularly making profits and when dividends were being, distributed before the introduction of section 115-O of the Act. Therefore, the proposal of buy-back was a scheme devised for avoidance of tax, a colourable devise for avoiding tax on distributed profits as contemplated in section 115-O of the Act. The arrangement could only be treated as a distribution of profits by a company to its share holders satisfying the definition of dividend which includes any distribution by a company of accumulated profits to its share holders. The payments in question would also satisfy the definition of dividend in the article 10(4) of the DTAA between India and Mauritius. Under Article 10(2) of the DTAA, dividend paid by a company which is a resident of India, to a resident of Mauritius, may also be taxed in India, according to the laws of India but subject to the limitation contained therein. The proposed payment would be taxable in India in terms of article 10(2) of the DTAA between India and Mauritius hence the applicant was required to withhold tax on the proposed remittance of the proceeds to the Mauritius company.
A ( 2012) 343 ITR 455 / XYZ India ( 2012) 206 Taxman 631 (AAR)
S. 2(22) (e): Definitions-Dividend-Deemed dividend-Loan to partnership- Since the partnership firm which has purchased the shares through its partners though not registered share holder , being beneficial owner is to be treated as share holder and loan advanced by company to such partnership is liable to tax as deemed dividend.
The Assessing Officer has held that loan received by partnership firm from Bharti Enterprises (P) Ltd should be treated as deemed dividend as two partners hold more than 10 percentage shares in Bharti Enterproses (P) Ltd . CIT (A) and Tribunal decided the issue in favour of assessee. On appeal, the High Court following the Judgment in National Travel services (2012) 249 CTR 540 (Delhi ) held the issue in favour of revenue holding that partnership firm is to be treated as the share holder and it is not necessary that it has to be “registered shareholder”. The question was answered in favour of revenue. As regards the accumulated profits the matter is set aside to the Tribunal by giving a reasonable opportunity to both the parties. (A.Y. 2004-05)
CIT v. Bharati Overseas Trading Co. (2012) 249 CTR 554 (Delhi) (High Court)
S. 2(22)(e) : Definitions-Dividend- Deemed dividend- Unsecured loans from other Company – Provisions of section 2(22)(e) cannot be invoked if the assessee does not possess the prescribed voting rights in that company
S. 2(22)(e) cannot be invoked in respect of the unsecured loans taken by the assessee from the other company if the assessee does not possess the prescribed voting rights in that company; shareholding of the common shareholder or director cannot be taken into consideration for the purpose. (AY 1994-95, 1996-97 & 1997-98)
CIT v. Gopal Clothing Co. Ltd. (2012) 71 DTR 358 (Delhi)(High Court)
S.4: Charge of income-tax- Diversion by overriding title- Amount transferred to Transport Infrastructure Utilisation Fund did not stand diverted at source by way of overriding title and it is includible in the taxable income of the assessee.
The assessee was given license to conduct and carry on liquor trade in Delhi. On the basis of the minutes of the meeting construction of flyovers etc was a precondition or an obligation imposed and had to be complied with to enable the assessee to conduct business of sale of country liquor in Delhi.
The assessee on the directions of f the Delhi Administration had got flyovers and infrastructure facilities constructed . As per resolution out of 95 paisa from Re 1 which the assessee was entitled to retain and keep. The balance 5 paise per bottle was to meet the administrative expenses including corporate expenses . The said 95 paise was not transferred or paid by the assessee to the Delhi Administration. Accordingly the Court held that the amount standing in TIUF was not diverted at source by way of overriding title and it was to be included in the taxable income of the assessee. The interest earned on transferred to TULF is also income and is taxable. (A.Ys. 1990-91 to 1992-93, 1994-95 & 1996-97)
CIT v. D.T.T.D.C. LTD (2012) 71 DTR 115 / 206 Taxman 507 (Delhi) (High Court)
D.T.T.D.C. LTD v.CIT (2012) 71 DTR 115 / 206 Taxman 507 (Delhi) (High Court)
S.4: Charge of income-tax- Diversion by overriding title- Sale proceeds deposited in other general economic service fund did not have the character of income earned by the assessee and it has to be excluded from the profit.
The assessee was given license to conduct and carry on liquor trade in Delhi. On the basis of the minutes of the meeting construction of flyovers etc was a precondition or an obligation imposed and had to be complied with to enable the assessee to conduct business of sale of country liquor in Delhi.
The assessee on the directions of f the Delhi Administration had got flyovers and infrastructure facilities constructed . As per the terms of letter the sale proceeds under the head Other General Economic Services (OGES) head was transferred to the Delhi Administration. Till the said date, the amount under OGES was retained by the assessee. The Court held that these receipts did not have character of income earned by the assessee and it has to be excluded from the profit. (A.Ys. 1990-91 to 1992-93, 1994-95 & 1996-97)
CIT v. D.T.T.D.C. LTD (2012) 71 DTR 115 / 206 Taxman 507 (Delhi)(High Court)
D.T.T.D.C. LTD v.CIT (2012) 71 DTR 115 / 206 Taxman 507 (Delhi)(High Court)
S. 9 : Income deemed to accrue or arise in India – Foreign agent – Commission – Business connection -Permanent establishment. (S. 4(1), 40(a)(ia), 195)
Where a foreign agent of an Indian exporter operates in his own country and his commission is directly remitted to him, such commission is not received by him or in his behalf in India. Such agent is not liable to income tax in India on commission received by him. As there was no right to receive income in India nor there was any business connection between assessee and Evon Technologies UK,(ETUK) therefore, when income was not chargeable to tax in India under section 4(1), there was no question of invoking provisions of section 195 hence no disallowance be made under section 40(a)(ia). (A.Y. 2007-08).
CIT v. Eon Technology (P) Ltd. (2011) 203 Taxman 266 / 64 DTR 257 / (2012) 343 ITR 366 (Delhi)(High Court).
Editorial: Affirmed view of Tribunal in Dy.. Eon Technology (P) Ltd. (2011) 46 SOT 323 (Delhi)(Trib.)
S.9(1(i): Income deemed to accrue or arise in India –Business connection-Composite contract- AOP-Contract is indivisible and consortium is to be taxed as an AOP, the amount receivable for supply of equipment, material and spares allegedly outside India is taxable in India. [S. 2(31) (V), 5 (2)]
The applicant which consisted the consortium of two members for executing offshore activities. According to the applicant it is a divisible contract and its obligations under the contract are well defined, the offshore activities are not taxable in India. APE would come into existence in India in terms of art 5.2(1) of DTAA between India and Germany only after the equipment reaches the site in India. The applicant approached the Authority for determination of tax liability. The Authority held that applicant is assessable as an AOP notwithstanding the internal division of responsibility by the consortium members and reognition thereof or by making separate payments to two members. On the facts part of design and engineering work for manufacture and procurement of equipment done outside India being inextricably linked with the erection and commissioning of the project undertaken by the consortium , amount payable in respect of design and engineering is liable to be taxed in India as situs of the contract is in India . Amount receivable for supply of equipment material and spares allegedly outside India is also taxable in India .
ABC/ 70 DTR 49 ( 2012) 249 CTR 329 (AAR)
S. 9(1) (IV): Income deemed to accrue or arise in India- Reimbursement-Fact that third party invoices are paid does not necessarily show “reimbursement”
The assessee, a Netherlands company, was awarded a dredging contract to be carried out at Port Mundra. It assigned the contract to its fully owned Indian subsidiary. It also entered into a “cost allocation agreement” under which it agreed to provide to the subsidiary all services necessary to execute the dredging contract in return for a reimbursement of the costs. It received Rs. 11.53 crores from the subsidiary towards invoices raised by third parties and claimed that as it was a “reimbursement of expenditure” incurred by the assessee it was not chargeable to tax. The AO & DRP assessed the receipts as “fees for technical services”. It was also held that the subsidiary was a “Dependent Agent Permanent Establishment”. On appeal by the assessee, held dismissing the appeal:
(i) While it is true that reimbursement of expenditure is not income, the payment made by the subsidiary to the assessee cannot be regarded as a “reimbursement” because (a) the subsidiary had no technical expertise to carry out the contract & the assessee had rendered technical services to it such as arranging the dredgers from abroad & choosing appropriate parties to execute the work. The facilities arranged by the assessee to support the operations of the subsidiary are not layman’s activities and require technical know-how. The argument that the dredgers were simply brought from outside India and taken back is over-simplified, (b) though it is claimed that the expenses were reimbursed at par with the invoices issued by third parties, there is nothing on record to show that the price negotiated between the assessee and the third parties are prices comparable to similar services provided by international parties. It is not established that the assessee offered services to the subsidiary on cost to cost basis at best reasonable and competent prices available at that point of time. Therefore, an element of profit in the invoices raised by third parties cannot be ruled out even though what was paid by the subsidiary to the assessee is the amount reflected in the invoice. Therefore, the fact that what has was paid by the subsidiary to the assessee was only the amount reflected in the invoices issued by the third parties, does not go to support the argument that the payments were only reimbursement of expenditure and there was no element of profit in those amounts. As the subsidiary had no technical expertise, the inevitable conclusion is that the assessee rendered technical services to its subsidiary and the payments are in the nature of fees for technical services;
(ii) The subsidiary constituted a dependent agent PE (DAPE) of the assessee because de facto the assessee was carrying on the contract work on behalf of the subsidiary and if we pierce the veil of the assignment contract and go to the root, there is interlacing of activities and interlocking of funds between the assessee and the subsidiary in executing the dredging contract. There is a relationship of agency and a PE is created. ( A.Y. 2003-04)
Van Oord ACZ Marine Contractors BV v. ADIT (Chennai)(Trib.) www.itatonline.org
S.9(1)(vi):Income deemed to accrue or arise in India –Royalty – Despite retrospective law By Finance Act 2012, “Royalty” is not taxable as DTAA prevails. (S. 40(a)(ia). 195 )
The assessee, a Mauritius company, made payment to Panamsat, USA, for hire of a “transponder satellite”. The AO held that the said hire charges constituted “royalty” and that the assessee ought to have deducted TDS u/s 195 and that as it had not done so, the amount was to be disallowed u/s 40(a)(ia). Before the Tribunal, the department argued that though as per Asia Satellite Telecommunications Co. Ltd. (2011) 332 ITR 340 (Delhi)(High Court), the hire charges were not assessable as “royalty”, this verdict was no longer good law in view of the amendment to s. 9(1)(vi) by the Finance Act 2012 w.r.e.f. 1.4.1976 to provide that such hire charges shall be assessable as “royalty”. Held by the Tribunal:
(i) In Asia Satellite Telecommunications Co. Ltd. v. DCIT (2011) 332 ITR 340 (Delhi)(High Court) it was held that in order to constitute “royalty”, the payer must have the right to control the equipment. A payment for a standard service would not constitute “royalty” merely because equipment was used to render that service. A similar view was taken in Skycell Communications Ltd v.Dy. CIT (2001) 251 ITR 53 (Mad.)(High Court). In De Beers India Minerals (www.itatonline.org)(Kar.) & Guy Carpenter & Co. Ltd. (www.itatonline.org) (Delhi)(High Court) it was held that to “make available” technical knowledge, mere provisions of service was not enough and the payer had to be enabled to perform services himself. The department’s argument that the amendments by the Finance Act, 2012 changes the position is not acceptable because there is no change in the DTAA between India and USA and the DTAA prevails where it is favourable to the assessee;
(ii) Even otherwise as the payment is made from one non-resident to another non-resident outside India on the basis of contract executed outside India, s. 195 will not apply as held in Vodafone International Holdings B.V. v. UOI (2012 ) 341 ITR 1 (SC). As s. 195 did not apply, no disallowance can be made u/s 40(a)(i);
(iii) Further, as prior to the insertion of s. 40(a)(ia) in AY 2004-05, payments to a resident did not require TDS, under the non-discrimination clause in the DTAA, the disallowance u/s 40(a)(i) in the case of non-residents cannot be made as held in Herbalife International India (P) Ltd (2006) 101 ITD 450 (Delhi)(Trib.), Central Bank of India & Millennium Infocom Technologies Ltd v. ACIT (2008) 21 SOT 152 (Delhi)(Trib). (A.Y. 2002-03)
B4U International Holdings Ltd v. DCIT (Trib)(Mum)www.itatonline.org
S.9(1)(vi):Income deemed to accrue or arise in India –Royalty –Information through internet-DTAA-India-Singapore- Subscription received by Indian subscriber would be royalty. (S. 195,Art 12 )
The applicant is a Singaporean company engaged in providing social media monitoring services for a company, brand or product. It is a platform for users to hear and engage with their customers brand ambassadors etc across the internet. The applicant offered services on charging a subscription. The clients who subscribed can log into its website to search on what is being spoken about various brands and so on. The applicant raised the two question before the Authority ;
(a) Whether the amount received by offering subscription bases services is taxable in India?
(b) Whether tax is required to be deducted from such amount by the subscribers who are resident in India?
The Authority for Advance Rulings held that the applicant being engaged in providing social media monitoring service by generating reports with analytics on the basis of the inputs given by the clients which amounts to business of gathering collating and making available or imparting information concerning industrial and commercial knowledge , experience and skill and therefore , the subscription received by it form the Indian subscribers would be royalty in terms of clause (iv) of Explanation 2 to section 9(1) (vi) as well as para 12 of the India –Singapore DTAA , consequently tax is required to be deducted in terms of section 195 from the payment made to it by the subscribers who are resident in India.
Thoughtbuzz (P) Ltd. (2012) 250 CTR 1 / 71 DTR 105 (AAR)
S.9(1(VI ): Income deemed to accrue or arise in India- Royalty- Deduction at source- DTAA-India- Canada- Rendering of services is not “supply of knowledge or information” to be “royalty”. ( S. 40 (ia), 195, art. 12 )
The assessee was engaged as a consultant by Essar Oil Ltd to provide consultancy services in connection with sale of its energy business. As the consultancy required high level technical and industry knowledge, the assessee engaged KPMG LLP, USA & KPMG Consulting LP, Canada for rendering professional services and paid Rs. 20 lakhs & Rs. 13 lakhs respectively. The AO held that the said fees constituted “royalty” u/s 9(1)(vi) & Article 12 and as there was no TDS, the amount was to be disallowed u/s 40(a)(i). This was reversed by the CIT(A). On appeal by the department, held dismissing the appeal:
The professional services rendered does not fall in the definition of “royalty” in Article 12 of the DTAA. It was purely a professional service for consultancy which were rendered outside India and not for supply of scientific, technical, industrial or commercial knowledge or information. Thus, there was no liability to deduct TDS and consequently no disallowance u/s 40(ia) can be made. (A.Y. 2001-02)
KPMG India Pvt. Ltd v. DCIT (Mum.)(Trib) www.itatonline.org.
S. 9(1)(vii)(b): Income deemed to accrue or arise in India- Fees for technical services-Export sales is not a “source of income outside India”. Expenditure on fully convertible debentures is deductible
The assessee, an Indian company, paid Rs. 14.71 lakhs to a US company for ‘KEMA’ certification which was necessary to enable it to sell its products in the European markets. The assessee claimed that though the said amount was ‘fees for technical services’ u/s 9(1)(vii), it was paid “for the purpose of earning income from a source outside India” (i.e. the exports) and so it was not taxable in India u/s 9(1)(vii)(b). The AO & CIT (A) rejected the claim though the Tribunal upheld it. On appeal by the department, held reversing the Tribunal:
(i) S. 9(1)(vii)(b) provides that fees for technical services payable by a resident in respect of services utilised in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India shall not be taxable in India. The term “source” means not a legal concept but one which a practical man would regard as a real source of income. It is a spring or fount from which a clearly defined channel of income flows. The assessee manufactured goods in India and concluded the export contracts in India. The source of income is created the moment the export contracts are concluded in India. The customer located outside India is not the source of the income though he is the source of the monies received. There is a distinction between the source of income and the source of receipt of monies. In order to fall u/s 9(1)(vii)(b), the source of the income, and not the receipt, should be situated outside India. Further, though the profits arise both from the manufacturing activity and from the sale, bifurcation of the fees is not permissible (CIT v. Aktiengesllschaft Kuhnle Kopp and Kausch (2003 ) 262 ITR 513 (Mad) not followed); (A.Y. 2005-06)
CIT v. Havells India Ltd (Delhi) ( High Court) www.itatonline.org
S.9(1)(Vii): Income deemed to accrue or arise in India-Fees for technical services-Managerial services-DTAA- India- France-Article 7 &13- Payment made for advisory services is fees for technical services hence tax there on is not to exceed 10 percent of the gross amount of fees and tax deduction at source under section 195(1) has to be on that basis. (S.90, 195)
The applicant and its parent company in France, are both in the business of manufacturing electrical components. Under the service agreement, Mersen has undertaken to provide the applicant with services in the nature of assistance, professional and administrative consultation and training. The issue raised for consideration was whether the payment by the applicant is towards fees for technical services as per art 13(4) of the India-French DTAA read with the protocol to the said DTAA. If yes what is the rate of tax to be deducted under section 195(1). The Authority for Advance ruling held that advisory services rendered by a French company to the applicant an Indian company, under service agreement in the field of management, international relationship, finance financial control and accounting, taxation and law insurance ,purchase and sales environment and safety and human resources issues are in the nature of managerial as well as consultancy services which are made available to the applicant and therefore ,payment made by the applicant to the French company towards such advisory services is fees for technical services in terms of art 13 of India – France DTAA read with Protocol thereto . The Authority also held that in terms of para 2 of Art 13, tax thereon is not to exceed 10% of the gross amount of fees and consequently TDS under section 195(1) has to be on that basis.
Mersen India (P) Ltd. ( 2012) 70 DTR 121 / 249 CTR 345 (AAR)
S.9(1)(vii): Income deemed to accrue or arise in India-Fees for technical services- Make available-Fees received for IVTC services are chargeable to tax as fees for technical services under section 9(1)(vii). (S.90, 139 195)
The applicants are engaged in the business of inspection, verification, testing and certification (IVTC) services .The applicants approached the Authority for Advance Rulings on the question whether they are liable to be taxed on these transactions in India as “fees for technical services” or “royalty “ in the absence of PE in India, whether there was obligations on the Indian customer to with hold the tax under section 195, whether the applicants have an obligation to file a return of income . The Authority for Advance Rulings held that payments received or receivable by the applicants in connection with IVTC services rendered to Indian customers are chargeable to tax as fees for technical services under section 9(1) (vii) but not under the provisions of the article on “Royalties and fees for technical services” under respective DTAAs or when the said article is read with the most favoured nation clause; Since technical services do not “make available” technical knowledge, experience, skill knowledge or process while preparing reports. Since the applicants do not have a tax presence in India , Indian customers are not required to with hold taxes under section 195, however the applicants are bound to file returns in India under section 139.
XYZ ( 2012) 249 DTR 241/ 206 Taxman 494 (AAR )
S. 9(I) (Vii)(b): Income deemed to accrue or arise –Fees for technical services- Payment for Inspection, Verification, Testing and Certification (IVTC) services is chargeable as fees for technical services.(S. 139, 195 )
Section 9(1)(vii)(b) shows that, when a resident of India is engaged in a business carried on outside India or earns any income from any source outside India, makes a payment by way of a fee falling under the definition of FTS, then such payment despite being in the nature of FTS is out of charge to tax in India. In the instant case, the payment received in connection with Inspection, Verification, Testing and Certification (IVTC) services are taxable as FTS u/s 9(1)(vii) and exceptions u/s 9(1)(vii)(b) are not available. As the applicant has tax presence in India. Indian Customers are required to with hold taxes under section 195 at the rate in force mentioned in the Finance Act for the relevant year on the payment made / proposed to be made to the applicant. The applicant has taxable income in India it is required to file to tax return under the provisions of Section 139.
XYZ Ltd., In re (2012) 206 Taxman 416 (AAR)
S. 10(20): Exempt income-Local authority-U.P. Jal Nigam is not a local authority and not entitled to exemption-(Constitution of India Arts 243(d) 243P &245 , General clauses Act S.3)
There was conflict of opinion between the Judges of Division Bench whether the U.P. Jal Nigam which is created by the State Legislatures under U.P.Water supply and Sewerage Act 1975 is not a “local authority” for the purpose of section 10 (20) even prior to insertion of the Explanation by the Finance Act, 2002, the matter was referred to third Judge . The third Judge also held that U.P.Nigam established under the U.P. Water Supply and Sewerage Act ,1975 is not a local authority for the purpose of section 10 (20) even prior to insertion of Explanation there to by Finance Act , 2002 , therefore not entitled to exemption under section 10 (20). The Court held that Article 254 of the Constitution of India to the extent of repugnancy ,the provisions contained in section 10 (20) of the Income-tax Act shall prevail over the provisions of U.P. Water supply and Sewerage Act 1975 . (A.Y.2002-03).
CIT v. U.P. Jal Nigam (2012) 70 DTR 65 / 249 CTR 467 (All.)(High Court)
S. 10(23C) (iiiad) : Exempt incomes-Educational institution- term ‘existing’ – From construction period educational institution are held to be existing eligible for exemption
The main emphasis of the assessee is that expression ‘existing’ employed in section 10(23C)(iiiad) does not convey the meaning of actual functioning of the institution. The term ‘existing’ is associated with the society and not functionality of the institution. It was held in Doon Foundation (1985) 154 ITR 208 (Cal) and Sree Narayana Chandrika Trust (1995) 212 ITR 456 (Ker) that it is from construction period that the educational institution is existing and thus eligible for exemption. (A.Ys. 2002-03 & 2003-04)
Nitya Education Society v. Jt. CIT (2012) 51 SOT 103 (Delhi)(Trib.)
S.10A: Newly established undertakings- Free trade Zone-Splitting up-Allocation of expenses-Support services -Acquiring a division on slump basis cannot be considered as splitting up or reconstruction, exemption under section 10A cannot be denied. Support services allocation on the basis of turnover is justified.
Assessee acquired a software division of Indian Organic Chemicals Ltd as a going concern on a slump sale basis. Assessee made claim under section 10A. The Assessing Officer rejected the claim on the ground that (1) if an STP undertaking was already engaged in manufacture of software programs before 1st April 1994 the benefit of section 10A cannot be extended (ii), it should not be formed splitting up or reconstruction of a business already in existence and it should not be formed by the transfer to new business of plant and machinery previously used for any purpose. The Assessing Officer also held that the undertaking was carrying on same business before 1995-96. The finding of Assessing Officer was confirmed by Commissioner (Appeals). On appeal to the Tribunal the Tribunal the Tribunal held that the entire software division was transferred as a going concern by an agreement dated 19th October, 1994. The soft ware unit has two sources of income viz. from the non STP activity and the STP activity . The assessee has made a claim only in respect Activity which was set up only on 24th May, 1994, hence the requirement of commencement of production on or after 1st April 1994 was fulfilled. The Court also affirmed the view of Tribunal. As regards concept of reconstruction of a business implies that the original business is not to cease functioning and its identity is not lost. Where the ownership of a business or undertaking changes hands that would not be regarded as reconstruction. As regards the splitting up of a business, the relevant test is whether an undertaking is formed by splitting up of a business already in existence. Unless the formation of the undertaking takes place by the splitting up of a business already in existence, the negative prohibition would not be attracted. In the present case, the entire business of the software undertaking was transferred to the assessee. The undertaking of the assessee was not formed by the splitting up of the business. Tribunal was therefore justified in holding that the assessee was entitled to exemption in respect of profits derived from the STP undertaking on the basis that conditions of section 10A(2) are fulfilled. As regards allocation of expenses the Court held that the Tribunal was justified in remanding the case with the direction allocate interest and depreciation of the support services division in the ratio of turnover between the section 10A and non section 10A activities. (A.Y. 1998-99).
CIT v. Sonata Software Ltd. (2012) 343 ITR 397 / 249 CTR 441 / 70 DTR 369 (Bom.) (High Court)
S.11: Charitable purpose-Members club- Providing cultural and educational activities for its members does not detract from the position that it advances a general public utility. [S.2(15)]
The assessee is a trust registered under the Bombay Public Trusts Act, 1950, and also registered under section 12 of the Income-tax Act. The Assessing Officer held that the assessee being mutual association computed the income as not charitable. In appeal the Commissioner (Appeals) confirmed the view of Assessing Officer. Tribunal reversed the finding of Commissioner (Appeals) and held that the activities of the club being to encourage or promote and to advance games, sports, athletic activities and cultural activities of the assessee which are of general public utility hence the requirement of section 2(15) is met and entitled to exemption. On appeal by the revenue the High Court also confirmed the order of Tribunal and held that the fact that the assessee provides services to its members does not detract from the position that it advances a general public utility. (A.Y. 1996-97)
DIT v. Chembur Gymkhana (2012) 70 DTR 163 (Bom.)(High Court)
S.11: Charitable or religious purposes- Exemption – Charitable Trust – Development Authority engaged in charitable activities is entitled to exemption if books of accounts are maintained for construction business
The grant of registration under section 12AA is not an empty formality as it has to be granted after satisfying that the objects are charitable in nature. The assessee, development authority is engaged on charitable activities and construction business of the assessee is merely incidental to the main object of town planning and therefore is entitled to exemption under section 11 if separate books have been maintained for construction business in accordance with the stipulation in section 11(4A). (A.Y. 2007-08)
ITO v. Moradabad Development Authority (2012) 145 TTJ 746 (Delhi)(Trib.)
S. 12A: Trust or institution-Charitable purposes-Contributions- Rejection of registration by Assessing Officer is without jurisdiction.
Once the registration is granted under section 12A by the Commissioner, the AO as subordinate authority cannot cancel the registration. The commissioner can cancel the registration on satisfaction of conditions laid down in Section 12AA(3). Thus, cancellation of registration under section 12A and completion of assessment under AOP by the AO is without jurisdiction. (A.Y. 2005-06)
Dy. DIT v. Kuttukaran Foundation (2012) 51 SOT 175 (Cochin)(Trib.)
S. 12A: Trust or institution-Charitable purposes-Contributions- Registration – Merely a surplus in one year over gross receipts not ground for rejecting registration
The assessee’s application under section 12AA for grant of registration under section 12A was rejected on the ground that assessee had shown a surplus over gross receipts in a particular year; that aims and objectives were not in charitable nature. Therefore, merely a surplus in one year cannot be a consideration for rejecting an application for grant of registration under Section 12A.
Make the Future of Country Education Society v. Dy. CIT (2012) 51 SOT 98 (Delhi) (Trib.)
S.14A: Business expenditure-Disallowance-Exempt income – Firm- Partner -Interest-Disallowance cannot made if there is no tax-free income. [S. 10(2A, 36(I)(iii)]
The assessee, a partner in a firm, borrowed funds and advanced it to the firm on terms that the firm would pay interest if it made a profit. For one year, the firm paid interest which was offered as income by the assessee while for the second year it did not pay interest as it made a loss. The assessee claimed the interest paid on the borrowing as a deduction u/s 36(1)(iii). The AO disallowed the claim on the ground that as the borrowings had been invested in the firm and the income from the firm was exempt u/s 10(2A), the interest expenditure was not allowable u/s 14A. This was reversed by the CIT (A). On appeal, the Tribunal upheld the CIT(A) on the ground that as there was no exemption claimed u/s 10(2A) by the assessee and there was no tax-free income, s. 14A could not apply. The department filed an appeal in the High Court in which it argued that as the profits derived by the assessee from the firm was exempt u/s 10(2A), the interest on the borrowed funds used to invest in the firm was disallowable u/s 14A. The court dismissing the appeal, held :
In so far as Question (A) is concerned, on facts we find that there is no (tax-free) profit for the relevant assessment year. Hence the question as framed would not arise.
CIT v. Delite Enterprises (Bom.)( High Court) www.itatonline.org
S. 14A: Business expenditure – Disallowance- Exempt income- Rule 8D prospective from AY 2008-09
Rule 8D is applicable prospectively w.e.f. A.Y.2008-09 and therefore, disallowance u/s 14A could not be made with reference to R. 8D in the relevant AY 2004-05; neither the assessee nor the revenue having challenged the estimation of the amount disallowable under section 14A as made by the AO @ 1% of the total exempt income, it is not open to the Tribunal to go into question of quantification of said amount disallowable and, therefore, the amount disallowable under section 14A is sustained to that extent. (AY 2004-05)
Dy. CIT v. Philips Carbon Black Ltd. (2012) 146 TTJ 175( TM )(Kol)(Trib))
S. 14A: Business expenditure-Disallowance-Exempt income – Firm- Partner – Depreciation – Disallowance applies to partner’s share of profits. Depreciation is not “expenditure” & cannot be disallowed u/s 14A. (S.10(2A), 28(v), 32 )
The Special Bench had to consider two issues: (i) given that a firm pays tax on its profits, whether the share of profit received by a partner from the firm, which is exempt in his hands u/s 10(2A), can be said to be not “tax-free” so as to not attract s. 14A & (ii) whether depreciation can be said to be “expenditure” so as to be disallowable u/s 14A. Held by the Special Bench:
(i) Though a firm and its partners are not different entities in general law, under the Act, they are treated as separate entities. The salary and interest paid by the firm to the partners is deductible in the hands of the firm and taxable in the hands of the partners u/s 28(v). The balance profits are taxed in the hands of the firm and exempt in the hands of the partners u/s 10(2A). As s. 10(2A) provides that the share of profit of the partner shall not be included in his total income, it is not possible to hold that the share income is not excluded from the total income of the partner because the firm has already been taxed thereon. When s. 10(2A) speaks of its exclusion from the total income it means the total income of the person whose case is under consideration i.e. the partner. As the share income is excluded from his total income, s. 14A would apply and any expenditure incurred to earn the share income will have to be disallowed (Dhamasingh M. Popat v. ACIT(2010 )127 TTJ 61 (Mum) approved; Sudhir Kapadia & Hitesh Gajaria reversed);
(ii) However, s. 14A applies only to “expenditure” incurred by the assessee. Depreciation u/s 32 is an “allowance” and not “expenditure” and so cannot be disallowed u/s 14A (Hoshang D. Nanavati approved) (A.Y. 2006-07)
Vishnu Anant Mahajan v. ACIT (SB)(Ahd)(Trib). www.itatonline.org.
S.22: Income from house property – Business income- Builder-Property dealer- Stock in trade-Unsold flats being house property rental income should be assessed as income from house property and not as business income ( S. 28(i) )
The assessee is a property developer and builder , in course of its business activities constructed a building for sale , in which some flats were un sold. During the year the assessee received rental income from letting out of the unsold flats which was shown as stock in trade in the balance sheet. It disclosed the rental income from letting out of the unsold flats as income from house property and claimed the statutory deduction. The Assessing Officer held that in the wealth tax proceedings the assessee had shown the unsold flats a stock in trade and not taxable for the purpose of wealth tax. The Assessing Officer assessed the rental income as business income. Commissioner (Appeals) has accepted the contention of assessee. On appeal to the Tribunal by revenue, the Tribunal restored the order of Assessing Officer. The Assessee filed an appeal to the High Court. The High Court held that under the Act the income of an assessee is one and various sections of the Act direct the modes in which the income is to be levied. No one of the sections can be treated as general or specific for the purpose of any one particular source of income. They all specific and deal with various heads in which an item of income, profits and means of an assessee falls. These sections are mutually exclusive and where an item of income falls specifically under one head, it has to be charged under that head and no other. On the facts since unsold flats being house property, rental should be assessed under the head ‘income from house property’. Appeal is decided in favour of assessee. (A.Y. 1998-99)
Azimganj Estate (P) Ltd. v. CIT (2012) 206 Taxman 308 (Cal.)(High Court)
S. 23: Income from house property – Notional Interest – Not to be added as the rent received by the assessee more than the reasonable expected value, the actual rent received should be the annual value of the property under section 23(1)(b ).
The assessee had shown the actual rent received, which was far more than the municipal ratable value. As the rent received by the assessee was far more than the sum for which property might reasonably be expected to let from year to year, the actual rent received should be the annual value of the property under section 23(1)(b). Notional interest on interest free security deposit / rent received in advance should not be added to the same in view of the decision of Bombay High Court in case of J.K. Investors (2001) 248 ITR 723 (Bom). (A.Y.2004-05)
ACIT v. Monisha R. Jaisingh (2012) 51 SOT 182 (Mum.)(Trib.)
S. 28(i):Business income- Business loss-Amalgamation- Advances to employees- Security deposit- Advances to employees by amalgamating company which could not be recovered allowable as business loss. Security deposit for obtaining lease of business premises is not allowable as a business loss.
The assessee company was Amalgamated with Gangeshwar Ltd. As per approved scheme the assessee wrote off unrecoverable advances paid to employees and security deposits given to land lords for lease of premises. The Assessing Officer disallowed the expenses written off. In appeal the Commissioner (Appeals) allowed the amount written off as business loss under section 28 of the Income-tax, which was confirmed by the Tribunal. On appeal to the High Court by revenue the Court held that, advances were given to the persons who had been employed by the assessee company and if they became irrecoverable, it would clearly be treated as business loss. As regards the security deposits were not given in the ordinary course of business. These were given for securing the premises on rent, albeit for the purpose of carrying on business therein, hence the amount written off was not a revenue loss and hence not allowable as deduction. (A.Y. 2000-01)
CIT v. Triveni Engineering and Industries Ltd. (2012) 343 ITR 245 / 250 CTR 277 (Delhi)(High Court)
S. 28(i): Business Income – Lease- Hostel facilities-Lease of hostel building with provision for hostel facility is assessable as business income
Where the assessee had constructed hostel for being let to lessee and under agreements, it had undertaken to provide hostel facilities to the lessee, entire income, the net of expenses, has to be treated as business income; even if lease agreement could not be considered in isolation, i.e. as independent and apart from the other agreements, all of which are qua and toward a single arrangement for the provision of hostel facilities to, the lessee. (A.Ys.2004-05 & 2006-07)
Kenton Leisure Services Pvt. Ltd v. DCIT (2012) 71 DTR 329 / 146 TTJ 589 (Cochin)(Trib.)
S. 32: Depreciation – Sale and lease back -Sale & lease back transactions are not “sham” transactions
The assessee purchased an igni-fluid boiler from its sister concern and on the same day leased it back. The AO & CIT(A) relied on McDowell & Co Ltd v.CTO (1985)154 ITR 148 and held the sale and lease back arrangement to be a sham & camouflage for a loan by the assessee to the sister concern and rejected the assessee’s claim for depreciation. However, the Tribunal allowed the claim on the ground that the transaction was not a “sham”. On appeal by the department, held dismissing the appeal:
(i) Though the machinery was embedded and was in possession of the seller, the assessee took constructive delivery of the machinery. As the law recognises constructive delivery as an acceptable mode of delivery and possession, physical possession is not necessary. Thus there is no material on record to show that the sale was a sham transaction and so its genuineness cannot be questioned. As regards the lease, the fact that some part of the funding came from Wipro Finance & that the lessee paid directly to Wipro in satisfaction of the assessee’s obligation does not make the agreement a sham because it is a matter of pure commercial understanding between the parties as to the modalities of lease rental payment. Given the freedom to enter into agreements with parties and guided by commercial considerations, even to invoke the theory of tax evasion, the Revenue must have sufficient material to draw an inference of what had been shown as an understanding on an agreement between the parties, is not, in fact, so.
(ii) In Vodafone International Holdings (2012) 341 ITR 1 (SC), McDowell was considered extensively and it was held that there is no conflict between McDowell & Co. Ltd. vs. Commercial Tax Officer (1985) 154 ITR 148 (SC); UOI v. Azadi Bachao Andolan & Anr. (2003) 263 ITR 706 (SC) & Mathuram Agarwal 8 SCC 667. It was pointed out that the task of the Revenue / Court is to ascertain the legal nature of the transaction and while doing so, it has to look at the entire transaction as a whole and not to adopt a dissecting approach. It was pointed out that “the Revenue cannot start with the question as to whether the impugned transaction is a tax deferment / saving device but that it should apply the “look at” test to ascertain its true legal nature. Genuine strategic tax planning has not been abandoned by any decision of the English courts till date.” It was held that while colourable devices cannot be a part of tax planning, it cannot be said that all tax planning is illegal / impermissible. Applying this ratio, the mere fact that what had been purchased had been leased out to the vendor or that vendor had undertaken to pay the hire charges on behalf of the assessee to the hire purchase company does not per se lead to a conclusion that the transaction is a sham one.
CIT v. High Energy Batteries (India) Ltd. (Mad)(High Court) www.itatonline.org
S.32:Depreciation – Tippers-Road transport vehicle-Tippers used by assessee in its construction work is entitled to depreciation at 40% .
Assessee is in the business of civil construction and contract work. The assessee claimed depreciation on Tippers, vibrator and vibrator soil compactor at 40% because the said vehicles are registered under Motor Vehicles Act, 1988 as road transport vehicles. The Assessing Officer allowed the depreciation at 15% as applicable to plant and machinery. In appeal Commissioner (Appeals) and Tribunal accepted the contention of the assessee. On appeal by the revenue , the Court held that Tippers , vibrator and vibrator soil compactor registered as road transport vehicles under the Motor Vehicles Act , 1988 are commercial vehicles entitled to depreciation @ 40 percent and not @ 15 percent applicable to plant and machinery. (A.Ys. 2006 -07 & 2007-08)
CIT v. Rakesh Jain (2012) 70 DTR 1 (P&H) (High Court)
S. 32: Depreciation – Lease-merely because the vehicles were used by the lessee in their business, the assessee cannot be denied the depreciation.
Assessee engaged in the business of leasing, producing bills showing consideration paid by him for acquiring vehicles as also lease agreement was owner of vehicles entitled to depreciation; merely because the vehicles were used by the lessee in their business, the assessee cannot be denied the depreciation. (A.Y. 1996-97)
Prakash Leasing Ltd. v. Dy. CIT (2012) 71 DTR 156 (Kar.) (High Court)
S. 32: Depreciation –Intangible- Website- Website is not a software hence CBDT Notification No. 890(E), dated 26/9/2000 cannot be applied to section 32 hence depreciation is allowable at the rate of 25% as intangible asset.
The CBDT Notification No. 890(E), dated 26/9/2000 including website services in software. Notified definition for purpose of sections 10A, 10B and 80HHE is for the specific purpose of those sections and cannot be imported for the purposes of depreciation under section 32 or Old Appendix- I applicable for A.Y. 2003-04 to 2005-06. Thus, website cannot be treated as software. It would fall under the definition of intangible asset on which depreciation at the rate of 25% is allowed. (AY 2004-05)
Makemytrip (India) P. Ltd v. Dy. CIT (2012) 51 SOT 19 (Delhi)(Trib.)
S. 32A: Investment Allowance- Machinery and plant-Job work-Investment allowance is allowable in respect of machinery and plant used in job work.
The assessee is in the business of manufacturing of forging products. They also undertake job work from Republic forge and other companies. The assessee claimed the investment allowance under section 32A. The Assessing Officer disallowed the investment allowance on the ground that the assessee is not manufacturing the products and they are engaged only on job works. The Commissioner (Appeals) also confirmed the view of Assessing Officer. On further appeal the Tribunal allowed the appeal of assessee. On appeal by revenue the Court up held the order of Tribunal and held that investment allowance can be claimed in respect of machineries and plant used in job work ( A.Ys. 1983-84, 1984-85)
CIT v. Firma Hi-Tech (2012) 343 ITR 507 (AP)(High Court)
S. 36(1)(iii):Deductions-Interest on borrowed capital-Wholly owned subsidiary – Borrowed funds not used by the assessee for purposes of investment in the shares of subsidiary or for making advances to RIL hence disallowance was not justified.
The assessee was engaged in the business of providing telecommunication infrastructure which mainly consisted of a Pan India Fibre Optic Network R. Ltd., wholly owned subsidiary of the assessee which is engaged in the business of providing telecommunication services. The CIT(A) and Tribunal held that the investment made by the assessee in its wholly owned subsidiary and the interest free advances given to RIL were for furthering the business interest of the assessee apart from their concurrent finding of fact that borrowed funds were not used by the assessee for purposes of investment in the shares of subsidiary or for making advances to RIL. There was no justification to make pro-rata disallowance out of deduction which is otherwise allowable u/s 36(1)(iii). (A.Y. 2003-04)
CIT v. Reliance Communications Infrastructure Ltd (2012) 71 DTR 237 / 207 Taxman 319 (Bom.)(High Court)
S.37(1):Business expenditure-Capital or revenue- Software expenditure- Expenditure for indigenization of software is revenue expenditure.
The assessee had undertaken expenditure for indigenization of software . The Tribunal noted that software is a product subject to high absolescence hence the same is allowable as revenue expenditure. High Court affirmed the view holding that no substantial question of law arises. (A.Y. 1998-99)
CIT v. Sonata Software Ltd. (2012) 343 ITR 397 / 249 CTR 441 / 70 DTR 369 (Bom.)(High Court)
S.37(1): Business expenditure- Fully convertible debenture Expenditure on issue of debentures is allowable as deduction.
Expenditure on fully convertible debentures could not be treated as expenditure on equity and was deductible even though the time and conversion price was fixed (CIT v. Secure Meters Ltd. (2003) 321 ITR 611 (Raj)(SLP dismissed) followed)
CIT v. Havells India Ltd (Delhi) (High Court) www.itatonline.org
S.37(1): Business expenditure- Capital or revenue- Construction of flyovers, pedestrain facilities – Expenditure on construction of flyovers, is of revenue expenditure.
The assessee was given license to conduct and carry on liquor trade in Delhi. On the basis of the minutes of the meeting construction of flyovers etc was a precondition or an obligation imposed and had to be complied with to enable the assessee to conduct business of sale of country liquor in Delhi. The Assessing Officer has held that the said expenditure is capital in nature. Tribunal held that the said expenditure is revenue in nature. On appeal by revenue the Court held that the assessee a corporation established by the Government NCT Delhi having constructed flyovers, etc as a precondition or obligation imposed by Delhi Administration for permitting it to carry on country liquor trade in Delhi which were to be transferred to the Delhi Government, no enduring benefit or advantages has accrued to the assessee and therefore, expenditure incurred by the assessee on the construction of flyovers etc. was revenue expenditure and not capital expenditure. (A.Ys. 1990-91 & 1991-92 )
CIT v. D.T.T.D.C. LTD ( 2012) 71 DTR 115 / 206 Taxman 507 (Delhi)(High Court)
D.T.T.D.C. LTD v.CIT ( 2012) 71 DTR 115 / 206 Taxman 507 (Delhi)(High Court)
S.37(1): Business expenditure- Education expenses of director- Expenditure could not be regarded as wholly and exclusively incurred for purpose of business hence not allowable.
The assessee company incurred certain expenditure on education of one of its directors , who had undergone a course at United Kingdom from University of Nottingham , and claimed deduction of the same as business expenditure. The Tribunal held that the expenditure in question was not expenditure wholly and exclusively incurred for the purpose of business. On appeal the High Court held that expenditure could not be regarded as wholly and exclusively incurred for the purpose of business. Accordingly the appeal was dismissed. (A.Y. 2006-07)
Natco Exports (P) Ltd. v. CIT ( 2012) 206 Taxman 491 (Delhi) (High Court)
CIT v. Career Launcher India Ltd. (2012) 71 DTR 161 / 207 Taxman 28 / 250 CTR 240 (Delhi)(High Court)
S. 37(I):Business expenditure- Expenditure-Know–how–Preliminary survey- agreement providing for preliminary survey in respect of existing facilities of the assessee and feasibility of proposed project , as no transfer of technical know-how section 35AB cannot be made applicable ,however the expenditure is allowable under section 37(1). ( S. 35AB ).
The agreement provided for a preliminary survey in respect of the existing facilities of the assessee and on feasibility of a proposed project. Commissioner (Appeals) and Tribunal held that, as there was no transfer of know how involved provisions of section 35AB cannot be applicable, however the same is deductible u/s 37(1). On appeal to the High Court, also confirmed the view of Tribunal (A.Y. 1994-95)
CIT v. Raymond Ltd. (2012) 71 DTR 258 (Bom.)(High Court))
S. 37(1): Business expenditure – Capital or revenue – Premium on redemption of debenture is held to be revenue expenditure.
The amount expended towards premium is, properly construed as liability which the assessee incurred for the purpose of business in order to obtain the use of funds for the period covered by the issue of non convertible debentures. Therefore the premium on redemption of debenture is allowable as revenue expenditure. (A.Y. 1992-93)
CIT v. Raymond Ltd. (2012) 71 DTR 253 (Bom.)(High Court)
S. 37(1): Business expenditure – Capital or revenue – Pre-operative expenses related to salary, wages, etc. held as revenue expenditure.
It was held that pre-operative expenses related to various item i.e. salary, wages, power, travelling, legal and professional fees constituted revenue expenditure. (AY 1997 -98)
CIT v. Raymond Ltd. (2012) 71 DTR 265 (Bom.)(High Court)
S.37(1): Business expenditure – Royalty – Associated enterprises – Payment of royalty to associated enterprises is not hit by provision of section 92 hence allowable as business expenditure. (S.92)
The Assessing Officer disallowed the claim of royalty payment of Associated enterprise holding that the Transfer Pricing Officer has determined the ALP of royalty paid at nil which was confirmed in appeal by the Commissioner (Appeals). On appeal the Tribunal held that for a transaction to come u/s. 92 of the Act, it is necessary to establish that the course of business between resident and non-resident is so arranged that the business transacted between them provides to the resident either (i) no profit or (ii) less than ordinary profits which might be expected to arise in the business. In the present case, the assessee had declared income and therefore it is not case of “no profit”. So are regards the adequacy of profits vis-à-vis ordinary profits which might be expected to arise in the business, the same can be found out only, when exercise is done to compare the income of the assessee with other comparable enterprises in India. In the present case, the TPO observed that no royalty was charged by other group entities and accordingly the Aris Length Price for royalty charges was inferred as nil. The findingof the Assessing Officer in considering the royalty charges as nil as arms length price cannot be accepted since the A.O. in the present case has not brought on record, the originary profits which can be earned in such type of business. Therefore in our view the payment of royalty is not hit by the provisions of Section 92 of the Act and there is no reason to hold that the expenses should not be allowed u/s. 37(1) OF THE Act, since the expenditure has been incurred by the assessee during the course of business and is having the nexus with the business of the assessee. (A.Y. 2004-05)
KHS Machinery (P) Ltd v. ITO (2012) 69 DTR 283 / 146 TTJ 692 (Ahd.)(Trib)
S.37(1):Business expenditure- Illegal purpose- Fact that payment is used for ‘illegal’ purpose does not attract Explanation to s. 37(1)
The assessee exported tea to Iraq under the ‘Oil for Food Program’, as sanctioned by the United Nations. It paid commission of Rs 1.28 crores to one Alia Transportation, a Jordanian company. The Volcker Committee, which was set up to expose the ‘Oil for Food scam’ found that this company was a front company for the Iraqi regime, meant to receive illegal kickbacks, and did not render any services. The AO, acting on the report, held that the commission paid by the assessee was “illegal” and not allowable under the Explanation to s. 37(1). This was reversed by the CIT (A). On appeal by the department to the Tribunal, held:
There was no dispute that the assessee had in fact paid Alia. Though the Volker Committee report stated that the amounts paid to Alia were actually kickbacks to Iraqi regime, that fact per se would not attract Explanation to s. 37(1). In order to fall within the Explanation to s. 37(1), the expenditure has to be for “for any purpose which is an offence or which is prohibited by law“. Alia was a Jordanian company and while the transactions between Alia and the Iraqi regime may be contrary to the UN sanctions, the transactions between the assessee and Alia were not hit by the UN sanctions. The Revenue has not pointed out any other specific violation of law. The assessee’s payment accordingly cannot be said to be for a purpose which is an offence or which is prohibited by law. What the recipient of the payment does is not important from this perspective because the assessee has no control over the matter. It is not the case that the assessee knew that the monies would be used for the purposes of kickbacks to the Iraqi regime. The onus of demonstrating that the assessee was aware that the payments were intended for kickbacks is on the AO which has not been discharged. The “purpose” of the expenditure has to be seen. If the payment is for bonafide business purposes, the fact that they end up being used as illegal kickbacks, will not attract Explanation to s. 37(1). The commercial expediency of the payments was not called into question by the AO (TIL Ltd (2007) 16 SOT 33 (Kol) referred).
DCIT v. Rajrani Exports Pvt Ltd. (Trib.)(Kol.)(Trib.)
S.37(1): Business expenditure – Capital or revenue – Market support service -Market support services do not result in acquisition of a capital asset hence allowable as revenue expenditure.
Assessee acquired personal computer business from IBM and entered in to a market support agreement with IBM with a view to retain a market share in the business. As per the marketing support agreement, IBM was to provide services to facilitate the sale of the products by the assessee and to extend services to the customers through one or more of its subsidiaries or third parties. The services to be rendered by the IBM are for a period of five years. The Assessing Officer treated the said expenses as capital in nature. The Tribunal held that services rendered by IBM to facilitate the sale of products by the assessee under market support agreement were meant for smooth and efficient running of the business of the assessee for a period of five years and it did not result in acquisition of a capital asset and therefore, fees paid by the assessee for the said marketing support services rendered by IBM is a revenue expenditure.(A.Y. 2006-07)
Lenova (India)(P) Ltd v. ACIT ( 2012) 71 DTR 90 / 147 TTJ 102 (Bang.)(Trib.)
S: 37(1):Business expenditure- Commission – Discount – Takeover of business -Liability pertaining to period prior to acquisition of business is allowable as business expenditure.
The assessee claimed the commission and discount payable to dealers as business expenditure. The Assessing Officer disallowed the expenditure on the ground that the expenditure relating to the period before acquisition of the business by assessee hence cannot be allowed for the relevant year. The Tribunal held that the assessee having taken over a running business from another company along with the liabilities which include the commission and discounts payable to the dealers ,it is bound to make payments thereof in order to maintain business relations with the dealers and therefore, such payments are allowable as business expenditure of the assessee. (A.Y. 2006-07)
Lenova (India)(P) Ltd v. ACIT (2012) 71 DTR 90 / 147 TTJ 103 (Bang.)(Trib.)
S.37(1): Business expenditure – Tax levied in foreign countries – Taxes levied in foreign countries on profits and gains are deductible. [S.40(a)(ii)].
The assessee paid tax in Belgium and claimed this amount as deduction. The Assessing Officer held that the term “tax” under section 40(a)(ii) is not limited to tax levied under Indian Income-tax , but is wide enough to include all taxes which are levied on profits of business, accordingly he disallowed the amount. On appeal the commissioner (Appeals) allowed the claim .On appeal to the Tribunal by revenue , the court referred the judgment of Mumbai Tribunal in South Asia Shipping co ITA no 123 of 1976 , which was up held by Bombay High Court in ITA no 123 of 1976 .The Tribunal also noted that in case of Tata Sons Ltd ITA no .89 of 1989 , the department’s reference application were rejected . The Tribunal held that the taxes levied in foreign countries on profits and gains or otherwise are deductible under section 37(1) , such taxes are not hit by section 40(a)(ii). (A.Ys 2003-04 , 2004-05).
Mastek Ltd v. DCIT 300 (2012) 44-A BCAJ -May –P.32 (Ahd.)(Trib.)
S. 40(a)(ia): Amounts not deductible – Deduction at source – Work contract- Printing and supply of diaries, catalogues, etc , material used by the assessee, procured from other parties does not amount to work contract under section 194C. (S. 194C)
Printing and supply of diaries, catalogues and folders by printers as per the requirements of the assessee by using materials procured from other parties did not amount to works contract within the meaning of Section 194C and, therefore assessee was not obliged to deduct tax at source from the payments made to the said printers and consequently, the payment could not be disallowed under section 40(a)(ia). (AY 2007-08)
DCIT v. Eastern Medikit Ltd. (2012) 71 DTR 241 / 146 TTJ 551 (Delhi)(Trib.)
S.40(a)(ia): Amounts not deductible-Deduction at source-Amendment by Finance Act 2010 is retrospective tax deducted at source deposited before due date of filing of return no disallowance can be made.
For A.Y. 2008-09, the assessee made a deposit of TDS after the due date for payment but before the due date for filing the ROI. The assessee claimed that the amendment to s. 40(a)(ia) by the FA 2010 w.e.f. 1.4.2010, which allows time for deposit of TDS upto the due date of the ROI, should be treated as being retrospective w.e.f. 1.4.2005. The AO rejected the plea though the CIT (A) allowed it. Before the Tribunal, the department relied on Bharati Shipyard lTD v. DCIT (2011)132 ITD 53(SB)(Mum.)(Trib.) where it was held that the amendment was not retrospective. Held by the Tribunal dismissing the appeal:
Though in Bharati Shipyard 132 ITD 53 (Mum)(SB), it was held that the amendment to s. 40(a)(ia) by the FA 2010 w.e.f. 1.4.2010 cannot be treated to be retrospective, a contrary view has been taken by the Calcutta High Court in CIT vs. Virgin Creations. As this is the sole High Court judgement on the point, it has to be followed in preference to the view of the Special Bench. Accordingly, the amendment to s. 40(a)(ia) by the FA 2010 is applicable retrospectively from 1.4.2005 and no disallowance u/s 40(a)(ia) can be made if the TDS is paid on or before the due date for filing the ROI (Piyush C. Mehta v. ACIT ITA No. 1321/M/2009, A.Y. 2005-06 date 11/4/2012 and ACIT v. M.K. Gurumurthy ITA No. 717/Bang/2011, A.Y. 2008-09 DT. 10/5/2012 followed) (A.Y.2008-09)
ITO v. Taru Leading Edge (P) Ltd. (Delhi)(Trib.) www.itatonline.org
S.41(1):Profits chargeable tax-Remission or cessation of trading liability- Liability shown in balance sheet- Merely because the liabilities are outstanding for many years provisions of section 41 (1) cannot be applied.
During the course of assessment it was Assessing Officer noticed that loans were very old and outstanding. The assessee failed to produce the confirmation and postal address. The Assessing Officer held that the liability have seized to exists and taxed under section 41, which was also confirmed by the Commissioner (Appeals). On appeal the Tribunal held that merely because the liabilities are outstanding it cannot be inferred that such liabilities have seized to exists. Accordingly the Tribunal allowed the appeal of assessee. On appeal to the High Court by revenue, the High also confirmed the view of Tribunal and held that merely because the liabilities are outstanding for last many years, it cannot be inferred that the said liabilities have seized to exists, hence section 41(1)cannot be applied. (A.Ys. 2001-02 to 2003-04 & 2006-07)
CIT v. Nitin S. Garg (2012) 71 DTR 73 (Guj.)(High Court).
S.41(1):Profits chargeable tax-Remission or cessation of trading liability- Liability of creditors-Liability to creditors shown as outstanding for more than four years not assessable as income
The assessee is in the business of manufacturing of rice from paddy and also selling rice after purchasing the same from the local market .In the books of assessee the amount payable was shown as outstanding . The Assessing Officer asked the assessee to file confirmation. The assessee could not file the confirmation. The Assessing Officer treated the outstanding in their accounts as unexplained credits under section 68 of the Income-tax Act. In appeal the Commissioner (Appeals) held that the Assessing Officer was justified in assessing the amount under section 41(1) of the Income-tax Act. Before Tribunal it was argued that additions cannot be made under section 41 (1). The Tribunal held that the applicability of section 68 was ruled out since no fresh amount was credited in the accounts of the creditors under consideration during the relevant accounting year. The Tribunal also held that since the liabilities were shown as outstanding in the balance sheet as on March 31, 2002, the onus had not been discharged, hence section 41(1) of the Act was not applicable. On appeal by revenue the High Court also up held the order of Tribunal and held that the liability shown as outstanding in balance sheet not assessable as income under section 41(1) though the liability to creditors were outstanding for more than four years. (A.Y. 2002-03)
CIT v. Shri Vardhman Overseas Ltd. (2012) 343 ITR 408 (Delhi)(High Court)
S.41(1):Profits chargeable to tax-Remission or cessation of trading liability- Waiver of loan-Business income- Loan taken on cash credit account used towards day to day basis operation waived by bank is assessable as income. [S. 28(iv)]
During the assessment proceedings the assessee realized that it had wrongly credited the total waiver of loan received from banks /financial institutions to the P& Loss account under the head miscellaneous income. In the course of assessment proceedings the assessee revised the claim by filing revised computation. . The Assessing Officer rejected the claim on the ground that the assesesse has not filed the revised return as per the provisions of section 139(5).On appeal the Commissioner (Appeals) accepted the claim of assessee and decided in favour of assessee. On appeal to the Tribunal by the revenue the appeal was partly allowed by the Tribunal. On appeal by the assessee to High Court the Court held that loan taken by assessee on cash credit account used towards day to day business waived by bank is chargeable to tax under section 28(iv) as also under section 41(1).
Rollatainers Ltd. v. CIT (2012) 250 CTR 25 (Delhi)(High Court)
S. 41(1): Profits chargeable to tax – Remission or cessation of trading liability- Unclaimed liability which is more than one year, addition cannot be sustained. (S. 68)
Unclaimed liabilities standing in the books of the assessee for more than one year being old liabilities, credits were not made in the relevant year and therefore, addition under section 41(1) or 68 cannot be sustained. (AY 2007-08)
DCIT v. Eastern Medikit Ltd. (2012) 71 DTR 241 (Delhi)(Trib.)
S.41(1): Profits chargeable tax-Remission or cessation of trading liability- Waiver by creditor - Amount not claimed as deduction in earlier years, hence waiver by creditor amount be treated as deemed business income.
The condition in section 41(1) is an absolute condition that the amount must have been claimed as deduction during the earlier assessment year. In the instant case the assessee had not claimed expenditure in any of the earlier years, the provisions of section 41(1) could not be invoked to bring the amount to tax which had been waived by the creditor. Therefore, the addition under provisions of section 41(1) was liable to be deleted. (AY 2003-04)
M.R. Banu (Smt) v. Dy. CIT (2012) 15 ITR 662 (Chennai)(Trib.)
S.43(5): Definitions – Speculative transaction- Non convertible security debentures – Commodities – Shares – Capital loss – Transactions relating to non-convertible security debentures would not come within definition of speculative transaction and loss there from could be claimed as capital loss.
The assessee claimed loss suffered on transfer of Non – convertible secured debentures as a capital loss. The Assessing Officer treated the said loss as speculation loss under section 43(5). In appeal Commissioner (Appeals) also confirmed the order of Assessing Officer. On appeal to the Tribunal it was held that the loss is allowable as capital loss. On appeal by the revenue, the High Court held that transaction relating to non –convertible security debentures would not fall within the definition of “Speculative transaction” as there was actual and constructive delivery . Further expression ‘commodity’ ‘shares’ and ‘stocks‘ used in section 43 (5) does not include non-convertible secured debentures purchased or before allotment. Pending allotment, non-convertible portion does not exists and the transaction relating to the partial non convertible security debentures will not come within the expression “commodity” or “shares” or “stocks”. And since there was no allotment the question of purchase or sale will not arise. The Court up held the order of Tribunal. ( A.Y. 1993-94)
CIT v. New Ambadi Estates (P) Ltd. (2012) 206 Taxman 286 (Mad.)(High Court)
S.44AE: Goods carriages-Computation – Presumptive income – No addition could be made by invoking section 56 on the ground that there were no withdrawals by the assessee (S. 56 )
The assessee is proprietor of Nitin Freight Carrier, he is also director of Northern Alkalies (P) Ltd. He disclosed the income under section 44AE of the income-tax Act. The Assessing Officer made addition under section 56 on the ground that he is not able to show how he is meeting his daily expenses. On appeal the Commissioner (Appeals) and Tribunal has deleted the additions made under section 56. On appeal by the Revenue to High Court the court held that section 44AE being applicable, no addition could be made by invoking section 56 on the ground that there were no withdrawals by assessee. (A.Y. 2001-02)
CIT v. Nitin Soni (2012) 71 DTR 1 (All.)(High Court)
S.44B: Shipping business-Non-residents-Computation-DTAA-India-Germany-Profits from participation of cargo and “slot arrangement” are not eligible for benefit of Article 8, therefore income earned by assessee through such business is taxable in India. (S. 90, 115VB, 115VI )
The assessee is a non-resident company engaged in the operation of ships in international traffic. The assessee is a tax resident of Germany. The assessee filed the return of income declaring nil income. The Assessing Officer held that the income of the assessee shall be assessed under the provisions of section 44B of the Income –tax Act @7.5%. The Assessing Officer passed under section 144C (1) for the consideration of DRP. The DRP passed the order granting partial relief, consequently the Assessing Officer passed the order. The assessee filed an appeal before the Tribunal. The Tribunal held that profits from participation of cargo under “slot arrangement” are not eligible for benefit of Article 8, since assessee, a Germany company is carrying on the business of operation of ships in India through an agent which concludes the cargo transportation of issuing bills of landing , it is having PE in India in terms of Article 5 of the DTAA and therefore, income earned by assessee through such business is assessable to tax in India; neither the Assessing Officer nor the DRP having undertaken the exercise of determining the profit attributable to the PE, matter is set aside to the Assessing Officer for de novo adjudication for this limited purpose in accordance with law. (A.Y. 2007-08)
Hapag –Lloyd Container Line Gmbh v. ADIT (2012) 51 SOT 299 / 146 TTJ 279 / 70 DTR 393 (Mum.)(Trib.)
S.44BB: Mineral oils-Computation – Non – Resident – Income deemed to accrue or arise in India – Business connection – Providing services or facilities in connection with prospecting for or extraction of mineral oil section 44BB is attracted. [S.9 (1)(i)]
The applicant approached the Authority for advance Ruling with the plea that it had entered in to a contract with ONGC for supply of manometer gauges, that the title to the goods passed outside India, that payment there for was received outside India and that the transaction of sale was not taxable in India. The Authority for Advance Ruling reframed the question and after examining the contract the Authority held that the a contract has to be read as a whole. The purpose for which the contract is entered in to by parties is to be ascertained from the terms of contract. On the facts applicant a foreign company, having entered in to a contract with ONGC for “services for supply, installation and commissioning of 36 manometer gauges” for the purpose of installation of the gauges at certain sites to enable ONGC to carry on its operations, it is a composite indivisible contract for supply and erection of manometer gauges at sites within territory of India and , therefore, all payments received by the applicant under the composite contract have arisen to the applicant in India and income is chargeable to tax in India. The applicant is providing services or facilities in connection with prospecting for or extraction of mineral oil hence section 44BB is attracted.
Roxar Maximum Reservoir Performance WLL (2012) 250 CTR 4 / 71 DTR 108 (AAR)
S.44D: Foreign companies – Royalties-Computation – Fees for technical services -Payments for services is fees for technical services and not as services in connection with extraction of mineral oil, hence taxable under section 44D and not under section 44BB (S. 9(I)(vii), 44BB, 115A)
An agreement was entered in to between the non-resident company /assessee represented by ONGC and in terms of the said contract , non-resident company rendered services for inspection of the existing control system of three units of RR avon gas generator driven process, gas compressor at SHP platform and for utilizing services of engineer for Y2K roll over time at off shore installation. The Assessing Officer taxed the receipts at 15% as per the DTAA between India and Singapore under section 44D, read with section 115A treating that services rendered by the non-resident company was technical services, which was confirmed by the Commissioner (Appeals). In appeal before the Tribunal the Tribunal held that the amount is taxable under section 44B. On appeal by revenue the court held that payment for services is fees for technical services and not as services in connection with extraction of mineral oil. The amount is taxable under section 44D and not under section 44BB. Appeal of revenue was allowed. (A.Y. 2001-02)
CIT v. ONGC (2012) 343 ITR 267 (Uttarakhand)(High Court)
S.45: Capital gains- Capital loss-Genuineness of transaction-Loss on sale of property purchased by partners wife is allowed as capital loss.
On the facts of the case the Tribunal has allowed the loss. The revenue contended that the finding of Tribunal is perverse. The Court directed the revenue to file the documentary evidence to prove that finding is perverse, however as the revenue has not provided any evidence, the High court up held the order of Tribunal. (A.Y. 2004-05)
CIT v. Bharti Overseas Trading Co. (2012) 249 CTR 554 (Delhi)(High Court)
S.50: Capital gains – Block of Assets – Land and building- Land having been held for a period of more than 36 moths, surplus of sale price over indexed cost of acquisition of land was to be taxed as long term capital gains. (S.2 (11), 2(42A) 32, 45, 54EC)
The assessee had purchased a property in March, 2001. It sold said property in the assessment year 2006-07. In the return of income, the assessee bifurcated the property in to land and building. According to assessee, the capital gain arising from sale of land was taxable as long term capital gain, since the entire capital gain from sale of land was invested in specified bonds under section 54EC, same was not liable to tax. The Assessing Officer held that land and buildings were not sold separately the land was not long term capital asset and it was purchased together with building for a consolidated sum and not separately shown in the balance sheet hence provisions of section 50(2) is applicable. On appeal Commissioner (Appeals) and Tribunal held that provisions of section 50(2) is not applicable hence directed the Assessing Officer to allow deduction under section 54EC. On appeal by the revenue the Court held that since the land is not depreciable asset and cannot form part of block of assets in the absence of a rate of depreciation having been prescribed therefore, provisions of section 50 could not be invoked . As the land being held more than 36 moths, surplus of sale price over indexed cost of acquisition of land was to be taxed as long term capital gain. (A.Y. 2006-07)
CIT v. I. K. International (P) Ltd. (2012) 206 Taxman 622 / 72 DTR 70 (Delhi)(High Court)
S.50: Capital gains – Depreciable assets – Plant and machinery – Plant and machinery which was not in use and no depreciation was claimed and assets were held for more than 36 moths assets were to be treated as long term capital gains (S. 2(11), 2(29B), 45)
The assessee had sold the plant and machinery in the assessment year 2006-07 and claimed the same as assessable as long term capital gain. The plant and machinery was acquired partly in the financial year 1997-98 and partly in the year 1998-99. The assessee contended that as the plant and machinery was not in use, the assessee had not claimed depreciation. The Assessing Officer held that the section 50 is applicable hence assessable as short term capital gain. The Commissioner (Appeal) also confirmed the order of Assessing Officer. On appeal to the Tribunal, the Tribunal held that section 50 did not apply and plant and machinery which was not in use had to be regarded as long term capital gain. On appeal by revenue the Court held that once Tribunal had recorded a finding of fact that plant and machinery, which is covered by section 50, would be a depreciable asset and not one on which no depreciation was ever claimed, then such assets, which were not depreciable, could not ever be assessed under section 50. Since assessee held assets as defined under section 2 (28A) and capital gain arising on transfer is required to be assessed as long term capital gain. (A.Y. 2006-07)
CIT v. Santosh Structural & Alloys Ltd. (2012) 206 Taxman 616 / 72 DTR 65 (P&H)(High Court)
S.50: Capital gains – Block of assets – Short term capital gain on sale of plant and machinery of one unit cannot be assessed if the assessee has one more unit where the rate of tax is the same. (S. 2(11), 45).
The assessee sold the entire plant and machinery of their paper division and stopped and ceased to carry on business in their paper division with effect from 2nd June, 1987. The Assessing officer held that section 50 of the Act is not applicable as the entire division, i.e. plant and machinery belonging to the paper division had been sold. He differentiated the block of assets belonging to the paper division and the block of assets belonging to other divisions of the assessee. The view of Assessing Officer is also confirmed by the Commissioner (Appeals) . On appeal to the Tribunal the Tribunal held that section 2 (11) defines the term “block of assets” to mean group of assets in respect of which same percentage of depreciation is prescribed. The definition does not make distinction between block of assets of one division or other. The block of assets held by assessee cannot be differentiated on this ground. Further income of an assessee under the Act was calculated under different heads of capital gains has to be computed as per the provisions contained in Chapter IV-E relating to capital gains and not in accordance with the provisions of chapter IV-D relating to profit and gains of business or profession . Reference was made to section 32, which provides for deduction of depreciation in respect of block of assets in such percentage as is prescribed provided the asset is owned by the assessee and was used for the purpose of business. The Tribunal allowed the appeal of assessee. On appeal by the revenue the court held that, all assets, which may be of different types, but in respect of which same percentage of depreciation is prescribed, are to be treated and forming part of block of assets. On the facts the block of assets carrying on same rate of depreciation does not cease to exist and provisions of section 50 was not applicable. Appeal of revenue was dismissed. (A.Ys. 1989-90, 1990-91)
CIT v. Ansal Properties & Infrastructure Ltd. (2012) 207 Taxman 61 (Delhi)(High Court)
S. 68: Cash Credits – Gift – None of the donors being available at the addresses given in their returns or PAN cards – addition is held to be justified.
Where none of the donors being available at the addresses given in their returns or PAN cards, AO was justified in making addition of alleged gifts under section 68 for failure of assessee to produce the donors though assessee produced their acknowledgements, PAN cards, IT returns, Bank Passbooks, etc. (A.Y. 2002-03)
Prakashchandra Singhvi (HUF) v. ITO (2012) 146 TTJ 121 (Ahd.)(Trib.)
S. 69: Unexplained Investments – unaccounted income – Statement-In the absence of evidence, mere statement of DGM of company surrendering deficit for cash, is not a ground to sustain addition. [S. 132 (4)]
Detection of shortage in cash ipso facto does not lead to inference of earning unaccounted income and, therefore, in absence of any evidence of undisclosed income, mere statement of Director cum DGM (finance) of the assessee company surrendering the deficit of cash for taxation during the survey proceedings cannot be a ground for sustaining the addition. (A.Y. 2007-08)
DCIT v. Eastern Medikit Ltd. (2012) 71 DTR 241 (Delhi)(Trib.)
S. 69A:Unexplained money - Jewellery – HUF-Reasonable amount of jewellery may be accepted as accumulated and explained and additions cannot be made.
Assessee HUF neither furnished item-wise details of the jewellery owned by it nor adduced any reliable evidence to show that it was the owner and in possession of the jewellery on 31st March 2005, as it had filed the WT Return before an incompetent AO and produced an undated valuation report, it could not be accepted that the whole of the jewellery was acquired by it from the deceased father of the Karta and, therefore, provisions of Section 69A are attracted to the sale proceeds of the jewellery and it is not assessable as capital gains; however, it would be reasonable to accept that jewellery was received by the assessee from the deceased and accumulated on other occasions and thus, only the remaining jewellery to be treated unaccounted. (A.Y. 2006-07)
Naveen Bansal (HUF) v. ITO (2012) 146TTJ 207 (Delhi) (Trib.)
S. 80HHC: Deduction – Export business – Trading goods-Indirect cost – Only indirect cost attributable to export have to be reduced first and not all costs other than direct costs.
Only indirect cost attributable to export have to be reduced for computing the deduction under section 80HHC in respect of export of trading goods and not all costs other than direct costs. In other words, first, attribution of indirect costs to the export of trading goods is to be made and then only scaling down in proportion is to be resorted to. (A.Y. 2003-04)
B. Parameswaran Bharathan v. Dy. CIT (2012) 136 ITD 119(TM)(Cochin) (Trib.)
S. 80HHC: Deduction – Export business-Trading goods – Only indirect cost attributable to export have to be determined
While computing deduction under Section 80HHC, indirect costs attributable to export of trading goods has to be first determined and then proportion of trading goods turnover to total turnover be applied to it. (A.Y. 2002-03 and 2003-04)
Dy. CIT v. Kerela Nut Food Co. (2012) 136 ITD 219 (Cochin)(Trib.)
S.80IA: Deductions – Industrial undertakings – Infrastructure development – Industrial park – Application for notification was not made before cutoff date i.e 31 St March 2006 on which date the 2002 scheme came to an end, the assessee is not entitled to claim benefit under section 80IA(4)(iii).
The petitioner company filed an application on 23rd September, 2006 with the Ministry of Commerce and Industries for registration of the Industrial park under the Industrial Park Scheme, 2002, to avail of benefits / exemption under section 80IA of the Income-tax Act. On the said date the 2002 Scheme was not in operation and was not applicable. On the facts the industrial park set up by it not being operational by 31st March 2006 and completion certificate for the park having been issued on 29th August, 2007, the petitioner’s industrial park could not be notified /approved under Industrial Park Scheme, 2002 for claiming benefit of section 80IA(4) (iii). The Court also rejected the plea of promissory estoppels. The Court held that Application for notification was not made before cutoff date i.e 31st March 2006 on which date the 2002 scheme came to an end, the assessee is not entitled to claim benefit under section 80IA (4)(iii).
Regency Soraj Infrastructures v. UOI (2012) 249 CTR 280 (Delhi)(High Court)
S. 80 IA: Deductions – Industrial undertaking – Infrastructure Development – Deduction allowed in initial year (A.Y.2004-05), hence deduction cannot be disallowed in AY 2006-07 on ground of fulfillment of conditions of sub-section (3) thereof r/w cl.(ii) of sub-s (4) of S. 80IA inserted w.e.f. 1/4/2005.
Assessee engaged in providing fax and email services was granted license for carrying on internet and internet telephony services w.e.f. October 2000. The assessee having been allowed deduction under Section 80IA in A.Y. 2004-05 as an undertaking engaged in business of internet and internet telephony services, same could not have been disallowed in A.Y. 2006-07 on the ground of fulfillment of conditions of sub-section (3) thereof r/w cl.(ii) of sub-s (4) of S. 80IA inserted w.e.f. 1/4/2005. (A.Y. 2006-07)
CIT v. TATA Communications Internet Services Ltd. (2012) 71 DTR 303 (Delhi)(High Court)
S.80IA: Deductions – Industrial undertakings – Infrastructure Development – Commencement of commercial production-Installation of new plant and machinery will amount to new industrial undertaking hence the assessee entitled to deduction.
The assessee has claimed deduction under section 80IA of the income-tax Act , in respect of its Silvasa Unit and its Achhad Unit . The Assessing Officer has rejected the claim .The Commissioner (Appeals) also up held the order on the ground that the deduction under section 80IA is applicable only on those undertakings which had commenced commercial production before March 31, 2000. The Tribunal held that the assessee had started manufacturing some new items of the same nature and for the purpose installed some new plant and machinery along with the old plant and machinery, in the same unit, at the same factory site without any basic change in the administrative set up or business organisation. The Tribunal also noted that earlier the assessee had engaged in the manufacture of stationery items and the new products were of the same nature. The Tribunal held that the assessee is entitled to deduction. On appeal by the revenue the High Court also held that on subsequent installation of new plant and machinery deduction cannot be denied as the commencement of commercial production was before 31-3-2010.
CIT v. Hindustan Pencils Ltd. (2012) 343 ITR 379 (Bom.)(High Court)
S.80IB: Deductions – Industrial undertakings – Small Scale – Computation- Cost of equipments such as tools, jigs dies, moulds, spare parts and consumable stores as well as vehicles have to be excluded for determining the status of assesses industrial undertaking as a small scale industrial undertaking.
The assesse claimed the deduction under section 80IB as a small scale industrial under taking treating the investment in Plant and machinery being less than 1 crore if items are considered as per notification dated 10 the December, 1999 issued under section 11B of the IDR Act i.e. tools, jigs, dies, moulds, fixtures patterns and spare parts for maintenance and cost of consumable stores are excluded and its net balance of plant and machinery comes to Rs.34,80,428 .
The Assessing Officer has not accepted the contention of assessee. In appeal the Tribunal held that cost of equipments such as tools, jigs dies, moulds, spare parts and consumable stores as well as vehicles value has to be excluded while computing the status as a small scale industrial undertaking and allowed the claim of assessee. (A.Y. 2004-05)
KHS Machinery (P) Ltd. v. ITO (2012) 69 DTR 283 (Ahd.)(Trib.)
S. 80IB: Deduction – Industrial undertakings – Factory licence – Deduction is available only in cases where application for license was made before the end of previous year (31st March , 2004) and not where it was not made at all or made after the end of previous year.
The assessee had started to manufacture its article or things before 31st March 2004, however the factory license was not obtained on the date of manufacture, the license was issued on 3rd May 2005. The assessee claimed deduction under section 80IB for the assessment year 2005-06. The Assessing Officer disallowed the claim, which was confirmed by Commissioner (Appeals). On appeal to the Tribunal, the Tribunal decided in favour of assessee holding that the conditions of section 80IB is satisfied. On appeal to the High Court the Court held that before starting a factory, intending manufacturer has to obtain license under Factories Act, running a factory without a valid licence is not only prohibited but is also personal offence, deduction under section 80IB was therefore allowable only in cases where application for license was made before end of previous year (31st March, 2004) and not where it was made at all or made after the previous year (A.Y. 2005-06)
CIT v. Jolly Ploymers ( 2012) 249 CTR 421 (Guj) (High Court)
CIT v. Jitsan Enterprse (2012) 249 CTR 421 (Guj) (High Court)
CIT v.Adarsh Packaging (2012) 249 CTR 421 (Guj) (High Court)
CIT v. Padmey Impex (2012) 249 CTR 421 (Guj) (High Court)
CIT v. Samrath Health Care (2012) 249 CTR 421 (Guj) (High Court)
S.80IB(10): Deduction – Undertaking – Developing and Building – Housing project-Built up area- Common area- Common area has to be excluded from the built up area.
The assessee is engaged in the business of construction. The assessee claimed the deduction under section 80IB (10). The Assessing Officer has rejected the claim for the reasons that the built up area of some of the flats exceeded 1500 sq. ft. On appeal the Commissioner (Appeals) held that the assessee is entitled to deduction on pro rata basis. The appeal of revenue was dismissed by Tribunal. On appeal by the revenue to the High Court, the court held that if the area does not exclusively belong to the owner of residential unit and if he has to share that common area with the owner of another residential unit, then that common area has to be excluded from the built up area, it is not necessary for such exclusion whether that area is shared by all the owners of the building. The Court held that if balcony space is excluded all the 160 units are less than 1500 sg .ft therefore the assessee is entitled to 100 percent exemption on the project. As the assessee has not preferred any appeal against the said order, it will not be appropriate for Court to extend the said benefit in these proceedings, however as the law stands today the assessee has not violated the provisions of section 80IB (10) hence entitled to exemption. (A.Y.2007-08)
CIT v. Raghavendra Constructions (2012) 70 DTR 257 (Kar.)(High Court)
S.80I(IB)(10): Deduction – Undertaking – Development Building – Housing project- Areas of open and land / garden and also merger of flats exemption cannot be denied- Revision of order held to be invalid. (S.263)
The assessee firm started construction of residential project at Aundh, Pune. The total area of the plot was shown to be 3995.34 mts. i.e. marginally less than the prescribed area of 1 acre. The assessee submitted that an additional area of land measuring 5 ‘Are’ was also acquired by the assessee for the approach road to the said project vide separate agreement with same land lord . On including this area it exceeded 1 acre. The assessee further submitted that without this local authority area would not have sanctioned the plan and issued commencement certificate. Assessing Officer visited the site and allowed the deduction. Commissioner found this order to be erroneous and prejudicial to the revenue on the ground that (1) the area of the plot of project is less than 1 acre; (2) As per sale agreement of row house, the saleable area mentioned is more than 1500 sq. feet; (3) in A.Y.2005-06 the Assessing Officer in order passed under section 143 (3) denied deduction under section 80IB (10) and (4) flats have been merged together and the modification is not as per approved plans. The assessee filed an appeal before the Tribunal against the order under section 263. The Tribunal held that, Areas of open land /garden /store /gym room meant for common use are not to be included for calculating built up area of the residential unit- Merger of flat after purchase , by owners thereof to make it larger flat for their convince cannot be denied exemption . Tribunal held that the revisional order is not valid. ( A.Ys. 2004-05, 2005-06, 2006-07)
Baba Promoters & Developers v. ITO 40 (2012) 44-A. BCAJ – April – Pg. 40 (Pune) (Trib.)
S.90: Double taxation relief – Business income-Non-resident-Permanent establishment- Dependent agent-Advertisement collection-TV Channels-DTAA-India – Mauritius – Tax implications of a “Dependent Agent Permanent Establishment” explained-On the facts it was held that there was no PE in India hence income cannot be taxed.
The assessee, a Mauritius company, was engaged in telecasting TV channels. It had an advertisement collection agent in India who collected revenue from time slots given to Indian advertisers. The assessee claimed that its profits from India were not chargeable under the DTAA because (i) it did not have a PE and (ii) assuming the agent was a PE, the agent had received an arms’ length fee from the assessee and further profits could not be attributed. The department relied on DHL Operations B.V. (2005) 142 Taxman 1 (Mag.) (Trib.)(Mum.) and claimed that as the assessee was dependent on the Indian agents, the Indian agents constituted a “Dependent Agent PE” and that despite arms’ length fee to the agents, profits were attributable to the DAPE. Held by the Tribunal:
(i) Under Article 5(4) of the DTAA, an “agent” (other than one of independent status) is deemed to be a PE if he “habitually exercises” the authority to conclude contracts. On facts, the agent was not the decision maker and had no authority to conclude contracts or to fix the rate or to accept an advertisement. It merely forwarded the advertisement to the assessee. Accordingly, there was neither legal existence of authority, nor evidence to show “habitual exercise” of authority.
(ii) Under Article 5(5), an agent is deemed not to be of independent status when his activities are devoted exclusively or almost exclusively to the non-resident enterprises. Though in CITv. DHL Operations B.V. (2005) 142 Taxmman 1 (Mag.) (Trib.)(Mum.) it was held that the question whether the agent is “dependent” has to be seen from the perspective of the non-resident principal, this view cannot be followed because it is contrary to the language of Article 5(5). The wordings refer to the activities of an agent and its devotion to the non-resident and not the other way round. The perspective should be from the angle of the agent and not of the non-resident. As the income from the assessee was only 4.69% of the agent’s income, the agent was not a “dependent agent” (Morgan Stanley &Co. International Ltd. (2005) 272 ITR 416 (AAR) & Rolls Royce (Singapore) Pvt. Ltd. (Delhi)(High Court) (2011) 202 Taxman 45 (Delhi)(High Court) followed;
(iii) Even assuming that there was a DAPE, as the agent had been remunerated at arms’ length basis, no further profit is attributable to the PE as per Circular No. 742 dated 2.5.1996, Set Satellite (Singapore) Pte Ltd. v. Dy. CIT (2008) 307 ITR 205 (Bom.) & DIT v. BBC Worldwide (2011) 203 Taxman 554 (Delhi)(High Court) (A.Y. 2001-02)
DDIT v. B4U International Holdings Ltd. (Trib.)(Mum) www.itatonline.org
S. 90: Double Taxation Relief – Management fee – Service PE - DTAA – India –US – Fees for rendering marketing and management services in India held to be attributable to service PE and chargeable on net basis. [Art. 5, 12(4) (b)]
Fees received by the assessee, a US company, for rendering marketing and management services to WNS, an Indian Company, is not in the nature of fees for included services within meaning of art. 12(4)(b) of India US DTAA, employees of the assessee having visited India for providing services to WNS in India, the presence of the employees constituted a Service PE of assessee in India within meaning of art. 5(2)(I) of the DTAA and, therefore, the marketing and management fee for services rendered in India is attributable to service PE and chargeable on net basis. (A.Y. 2005-06)
ADIT (IT) v. WNS North America Inc. (2012) 71 DTR 161 (Mum.)(Trib.)
S. 92C: Avoidance of tax – Transfer Pricing – Business expenditure – TPO has no authority to disallow the payment for the purpose of business, on the ground that the assessee has suffered continuous losses. [S. 37(I)]
So long as an expenditure or payment has been demonstrated to have been incurred or laid out for the purpose of business, TPO has no authority to disallow the expenditure on the ground that the assessee has suffered continuous losses; disallowance of the brand fee/ royalty payment while determining the ALP was not justified. (A.Ys. 2002-03 & 2003-04)
CIT v. EKL Appliances Ltd. (2012) 71 DTR 345 / 250 CTR 264 (Delhi)(High Court)
S.92C: Avoidance of tax – Transfer pricing-Arms’ length price – Expression “shall” used in Rule 10B(4), makes it clear that only current year’s data is to be used.
The expression “shall” used in the Rule 10B(4) makes it clear that it is mandatory to use the current year’s data first and if any circumstances reveal an influence on the determination of arm’s length price in relation to the transaction being compared than other data of the period not more than two years prior to such financial year may be used. The assessee did not raise any objection before the first appellate authority or before TPO during the proceedings, that the TPO failed to take cognizance of the difference in the accounting policies followed by the assessee company and alleged comparable companies selected by them by not allowing the depreciation adjustment made by the assessee. Therefore, ground could not be entertained by the government. (AY 2004-05)
Dy. CIT v. Deloitte Consulting India P. Ltd. (2012) 15 ITR 573 (Bang.)(Trib.)
S. 92C: Avoidance of tax – Transfer Pricing – Computation of ALP – Information – Information cannot be used against the assessee without giving an opportunity.
ALP has to be determined by the TPO by taking into consideration contemporaneous data relevant to the previous year in which the transaction has taken place and he is not from using the information available in public domain beyond any cut-off date; though the TPO is not under any obligation to furnish the entire information to the assessee, when any information is sought to be used against the assessee, it has to be given a reasonable opportunity of hearing on that material; TPO having not considered various defects pointed out by assessee in the selection of additional comparables by TPO and other infirmities in the computation of ALP. (A.Y. 2006-07)
Kodiak Networks (India) Pvt. Ltd v. ACIT (2012) 71 DTR 114 (Bang.)(Trib.)
S. 92C: Avoidance of tax – Transfer Pricing – Computation of ALP – AO has made a reference to the TPO for determination of ALP, adoption of ALP suggested is sufficient compliance
Once the AO has made a reference to the TPO for determination of ALP and he has adopted the ALP as suggested by the TPO that would be sufficient compliance with the requirements of Section 92C(3) even if there is no specific finding in this regards in the order of AO. (A.Y. 2007-08)
Tevapharm Pvt. Ltd. v. Addl. CIT (2012) 71 DTR 209 / 147 TTJ 35 (Mum.)(Trib.)
S. 92C: Avoidance of tax- Transfer pricing-Arms’ length price-While Computing of Arm’s Length Price the data is to be restricted to AEP.
The assessee, part of a group company, exported its services to its associated enterprises and other clients. The assessee received payments from its clients for providing the software development services and information technology enabled services. The assessee filed a transfer pricing study based on transactional net margin method, and using filters arrived at comparables and as the margin earned by it was more than the adjusted mean margin, submitted that price charged by its international transactions was at arm’s length. The Hon’ble Tribunal held that the AO was to make transfer pricing adjustment restricting the adjustments to the transactions of the associated enterprise. It was further held that as the TPO had furnished the information gathered from the selected comparables and the assessee had submitted a detail submission along with its objections to their selection and thus, there was no violation of natural justice. (A.Y. 2006-07)
Genesys Intergrating Systems (I) Pvt. Ltd. v. Dy. CIT (2012) 15 ITR 475 (Bang.)(Trib.)
S. 92C: Avoidance of tax – Transfer pricing – Arm’s length price – Arm’s length price is to be done in accordance with Rule 10B.
In the transfer pricing analysis done by both assessee in its TP report and by TPO in its TP order it was found that neither of them spelt out functions performed, risks borne and assets used by assessee as well as its associated enterprises; it was found that FAR analysis had not been performed between assessee and comparable companies as mandated by Rule 10B. Therefore, held that determination of ALP by assessee or revenue authorities was not in accordance with law. (A.Y. 2006-07)
Trigent Software Ltd. v. Asst. CIT (2012) 51 SOT 113 (Mum.)(Trib.)
S.92C: Avoidance of tax – Transfer pricing-Arms’ length price – Rule of consistency – Matter was remitted to ascertain whether similar transactions of the assessee with Associated enterprise have been accepted as ALP by the TPO in subsequent years if yes the Assessing Officer is directed to follow the same.
The Assessee has followed the internal CUP method for arriving at ALP for the import of raw material, where as the TPO in his order mentioned that the assessees has adopted the external CUP method. Similarly, for the royalty payment, the assessee has adopted the external CUP method as it was a single payment, where as the TPO observed that it is recurring payment, there were many flaws in the TPO’s order which demonstrated that the facts have not been properly appreciated by the TPO while making the TP study analysis .Where as similar transactions have been accepted to be at ALP for the subsequent years even though the same method is followed by the assessee . Considering the facts the Tribunal remitted the matter to the Assessing authority with the direction to ascertain as to whether similar transactions of the assessee with AEs have been accepted to be ALP by the TPO in subsequent years, and if it is so, then the Assessing Officer to adopt the TP analysis conducted by the assessee for the relevant assessment year and make the assessment accordingly. (A.Y. 2006-07)
Lenovo (India) (P) Ltd v. ACIT ( 2012) 71 DTR 90 (Bang.)(Trib.)
S. 92C: Avoidance of tax – Transfer pricing - Arms length price – Loss – Turnkey contracts – Law on taxability of “turnkey contracts” for offshore & onshore supply explained and matter set-a-side for redetermination.
The assessee, a Chinese company, entered into two contracts with WBPDCL, one for the offshore supply of equipment and the other for onshore supplies, design, engineering and construction etc. Separate consideration was specified for each activity. The assessee claimed, relying on Ishikawjima-Harima Heavy Industries Ltd v. DIT (2007) 288 ITR 408 (SC), that the profits from offshore supply was not taxable in India. The AO rejected the claim on the ground that the project was a “turnkey” one with “cross-fall breach clause” and “single point responsibility” and that the split contracts were entered into only for convenience. It was held that the project office PE played a role in the offshore supplies. He referred the matter for determination of ALP of the onshore supplies to the TPO who determined a profit of Rs. 24 crores as against the loss of Rs. 67 crores offered by the assessee. This was upheld by the DRP. On appeal by the assessee to the Tribunal, held;
(i) As regards the assessee’s claim, relying on Ishikawajima-Harima, that offshore supply contracts cannot be taxed, there is a school of thought as advocated in Alstom Transport SA (AAR) that in view of the later & larger bench judgement in Vodafone International Holdings B.V. v. UOI (2012) 341 ITR 1, the Ishikawajima -Harima principle is not good law and a “dissecting approach” cannot be adopted. While it is arguable that the observations in Vodafone regarding “looking at the transactions as a whole and not adopting dissecting approach” cannot be applied in all cases where separate contracts are entered into for offshore supplies and onshore services, the observations are applicable in cases where the values assigned to the onshore services are prima facie unreasonable vis-à-vis values assigned to the offshore supplies, which make no economic sense when viewed in isolation with offshore supplies contract. The transactions have to be looked at as a whole, and not on standalone basis, when the overall transaction is split in an unfair and unreasonable manner with a view to evade taxes. In order that such a situation can arise, it is sine qua non that while the assessee submits the bids for different segments (e.g. offshore and onshore) separately, these bids are considered together, as a single cohesive unit, by the other party, and this fact must be apparent from material on record. The fact that there is a “cross fall breach clause” which provides that a breach in one contract will automatically be classified as breach of the other contract give an indication that the “offshore supplies” contract and “onshore supplies” contract have to be viewed as an integrated contract, this fact by itself does not indicate that the onshore services and supplies contract is understated so as to avoid tax in the source country. That would be the situation in which while offshore supplies show unreasonable profits while onshore supplies and services result in unreasonable losses;
(ii) The fact that the assessee claims to have made a loss on its entire project, including the onshore activities, is not reason enough to show that the value of the onshore activities was deliberately kept at a lower amount to avoid taxability in India because it may make commercial sense that the offshore supplies are made at loss, as long as these supplies are at less than incremental costs i.e. marginal costs of offshore supplies, and thus overall losses of the assessee are minimized (matter remanded for the AO to examine the assessee’s claim regarding overall loss on the project) ( A.Y.2007-08).
Dongfang Electric Corporation v. DDIT (Kol.)(Trib.) www.itatonline.org
S. 92CA: Avoidance of tax – Reference to Transfer Pricing Officer – Transaction based and not entity based.
The reference by the AO under section 92CA(1) is transaction based and not entity based. There may be several international transactions with the same entity, but reference made by the AO is each transaction specific i.e. only the international transaction which have been referred to by the AO after taking the approval of the Commissioner can be looked into by the TPO. (A.Y. 2006-07)
GlaxoSmithkline Consumer Healthcare Ltd v. Addl. CIT (2012) 51 SOT 52 (Chd.)(Trib.)
S.115E: Non – residents – Capital gains – Not ordinary resident- Interest –Declaration – Interest on deposits in banks are entitled benefit not required to filing of declaration under section 115H. (S. 6(6)(a), 115H).
The assessee had been a ‘non-resident’ for 12 years prior to return to India. He has been in India only for 323 days during the previous seven years preceding in the assessment year 1993-94. The Tribunal held that assessee falls within scope of section 6 (6) (a), hence the status of the assessee is ‘not ordinary resident’ and non –resident up to assessment year 1992-93 .The Assessing Officer denied the exemption under section 115E on the ground that the assessee has not filed the declaration under section 115H. The Tribunal held that there is no requirement of filing of declaration under section 115H.In appeal to the High Court held that the Tribunal has correctly justified in holding that the exemption under section 115E of the Income-tax Act and there is no requirement of filing of declaration under section 115H. (A.Ys. 1994-95 to 1996-97)
CIT v. N.Sundarraman ( 2012) 70 DTR 9/206 Taxman 364 (Mad) (High Court)
S. 115E: Non-residents – Capital gains – Bonus shares resulted out of original investments in shares made out of convertible foreign exchange, concessional rate in section 115E can be applied to LTGC on such bonus shares.
There can be no differentiation whatsoever between definition of the ‘foreign exchange asset’ as applied to section 115E and 115F since both the sections fall under chapter XII-A. That being so, the assessee cannot be deprived of the concessional rate available under section 115E just because the sale of the shares were bonus shares. Coordinate Bench of the Tribunal rightly relied on the decision of Apex court in the case of CIT v. Dalmia Investment Co. (1964) 52 ITR 567 for holding that such bonus shares were covered by sub-clause (b) of section 115C and was a foreign exchange asset. This being so, income by way of long term capital gains on transfer thereof was well eligible for application of concessional rate of tax specified under sub-clause (b) of section 115E. It is held that the authorities below fell in error when they applied higher rate of tax. Thus AO was directed to give assessee benefit of concessional rate under Section 115(E). (A.Y. 2008-09)
Deivanayagam Maruthini(Smt) v. Dy. DIT(IT) (2012) 51 SOT 163 (Chennai) (Trib)
S. 115JA: Company – Book profit – Deemed income – Adjustment of debenture redemption reserve, the amount held not to be reserve within the meaning of expln. (b) to S. 115JA
It was held that mere fact that the debenture redemption reserve is labeled as a reserve will not render it as a reserve in the true sense or meaning of that concept. An amount which is retained by way of providing for a known liability is not reserve. Accordingly order of Tribunal affirmed and appeal of revenue was dismissed. (A.Y. 1997 -98)
CIT v. Raymond Ltd. (2012) 71 DTR 265 (Bom.)(High Court)
S.119: Income-tax authorities- Instructions to subordinate authorities- Waiver of interests – Due to financial difficulties there was delay in payment of advance tax, interest levied under section 234B, and 234C cannot be waived. (S. 234B, 234C)
The assessee was acting as a real estate agent. Due to financial difficulties, there was delay in payment of advance tax. The assessee filed application for waiver of interests levied , which was rejected . The assessee filed writ petition against the said order, and contended that it had made out a case for grant of waiver / refund and the same had been declined by misinterpretation and / or narrow interpretation of the order F.NO 400/29/2002 –IT (B) dated 26-6-2006 (Said order) issued by the Central Board of Direct Taxes (CBDT). In the alternative, it was contended that paragraph 3 of the said order, to that extent it declined the benefit of waiver of interest charged under section 234B, and 234C to the class or classes referred to in paragraphs 2(a) and 2(d) of the said order dated 26-6-2006 , was arbitrary and unequal and was in violation of Article 14 of the Constitution of India. The High Court held that said order specifically mentioned that it would not apply to sections 234B and 234C , in view of above , the assessee was not entitled to any waiver / reduction of interest. Accordingly the writ petition was dismissed. (A.Y. 2008-09)
De Souza Hotels (P.) Ltd. v. Chief CIT (2012) 207 Taxman 84 (Bom.)(High court)
S.132: Income – tax authorities – Powers – Search and seizure – Warrant of authorization – Validity-Writ- Warrant of authorization which had been issued in the name of dissolved firm as well as in the name of assessee and his wife cannot be said to be invalid. (Art 226 )
The assessee and his wife formed a partnership. The firm was dissolved on 19/4/2004. The assessee continued the business of the firm as sole proprietor. Warrant of authorization were issued under section 132 at the business premises and residential premises of assessee and his wife. The notice was issued to file the return for the assessment years 2001-02 to 2004-05. The assessment was done and when the appeal was pending the assessee challenged the validity of search issue of warrant of authorization by way of writ petition on the ground that the DIT (Investigation ) did not entertain a bonafide belief as required under section 132 (1) and secondly , warrants of authorisation were issued in name of a dissolved firm which was not in existence in law . The court held that the warrant of authorization was issued in the name of assessee as well as his spouse hence the issue of warrant of authorization was held to be valid. Accordingly the writ petition was dismissed.
Hemedra Ranchhoddas Merchent v. DIT (2012) 206 Taxman 596 / 71 DTR 361 / 250 CTR 229 (Bom.)(High Court)
S. 132B: Income-tax authorities – Powers – Search and seizure – Application of seized or requisitioned assets – Pendency of penalty proceedings – Expression “penalty levied” in S.132B(1) should be read as penalty to be levied in a proceeding under Section 271(1)(c ). [S. 271(1)(c )].
Expression “penalty levied” in S. 132 B(1) should be read as penalty to be levied in a proceeding under Section 271(1)(c); S.132B(1) therefore entitles the I.T. department to retain the seized gold in question with them until penalty is levied and apply the same towards the liability so determined, provided the assessee is in default or deemed to be in default. (A.Ys. 2003-04 to 2009-10)
Sree Balaji Refinery v. Dy.CIT (2012) 71 DTR 297 (Ker.)(High Court)
S.144C: Assessment - Reference to dispute resolution panel – Non speaking Order passed by DRP – Matter restored back to file of DRP
Order passed by DRP under section 144(5) being a non-speaking order not stating the objections raised by the assessee and the reasons have also not been given as simply the order of TPO and AO are referred, matter restored back to the file of DRP for afresh disposal after giving germane reasons for adjudication of the objections of the assessee. (A.Y. 2006-07)
Evalueserve.com (P) Ltd v. ITO (2012) 145 TTJ 763 / 16 ITR 442 (Delhi)(Trib.)
S. 145: Assessment – Method of Accounting – Valuation of Closing Stock – Addition on account of under valuation of goods in process as there is no independent application of mind, matter remanded back.
Addition on account of under-valuation of goods in process and on account of non-inclusion of direct cost could not be deleted by Tribunal without independent application of mind by merely observing that CIT(A) had elaborately discussed the issue. The matter therefore remanded for reconsideration. (A.Y.1990-91)
CIT v. Raymond Ltd. (2012) 71 DTR 249 (Bom.)(High Court)
S.145 : Assessment – Method of accounting – Loss on valuation of interest swap – Deduction of loss on account of valuation of interest swap is allowable as deduction in current year is subject to verification of corresponding adjustment
The valuation of interest rate swap as on the balance sheet date only indicates computation of profit or loss on account of these profits as on that date. The assessee is entitled to deduction of loss on account of valuation of interest rate swap subject to the rider that allowability of deduction in the current year is subject to verification of corresponding adjustment in the year in which next settlement date falls. (A.Y.2003-04)
ABN Amro Securities India (P) Ltd v. ITO (2012) 145 TTJ 702 (Mum.)(Trib.)
S.147: Reassessment - Full and true disclosure – Notice after expiry of four years – As there is no allegation of failure on the part of assessee to state fully and truly all material facts reopening after four years held to be not sustainable.
The assessment was completed on 30th October under section 143(3). The Assessment was on 16th August 2001 on the ground that the assessee has claimed meling loss in excess of 7.24 percent. The assessee objected for reopening , which was rejected by the Assessing Officer. The assessee challenged the order by writ petition. The Court allowed the petition and held that there is no allegation in the reasons of failure on the part of the assessee to state fully and truly all material facts necessary for assessment and the assessment having made after verification of records, reopening after four years was not sustainable. (A.Y.2004-05)
Shriram Foundry Ltd v. Dy.CIT ( 2012) 70 DTR 201 / 250 CTR 116 (Bom.)(High Court)
S.147: Reassessment – Full and true disclosure – Notice after expiry of four years – As there is no allegation in the reasons for failure to disclose material facts necessary for assessment reopening beyond four years was held to be not valid.
The assessment was completed under section 143 (3) on 14th December, 2007 accepting the melting loss at 7.75 percent. The notice for reopening was issued on the ground that in the similar line of business other assessee have claimed the melting loss at 5.5 percent. The objection of assessee was rejected by the Assessing Officer. The assessee challenged the reopening by writ petition. The court allowed the writ petition and held that there is no allegation in the reasons which have been disclosed to the assessee that there was any failure on his part to fully and truly disclose material facts necessary for assessment and therefore reopening beyond four years was not valid. (A.Y. 2005-06)
Sound Casting(P) Ltd v. Dy.CIT (2012) 70 DTR 204 / 250 CTR 119 (Bom.)(High Court)
S.147: Reassessment- Full and true disclosure- Notice after expiry of four years- Reassessment is not permissible notwithstanding subsequent decision of Court or retrospective amendment.(A.Y.2005-06)
On the facts the Assessing Officer reopened the assessment on the ground that set off of brought forward unabsorbed depreciation loss was allowed against the income from other sources and capital gains, which is not in accordance with law as explained by special bench in the case of Times Guarantee Ltd and while giving effect to the order of Tribunal no addition was made while computing the income under section 115JB on account of provision for diminution in the value of investment charged to P& L account as the law is amended by Finance Act . 2009 with retrospective effect from the Assessment year 2001-02.The Objection raised by the assessee was rejected by the Assessing Officer. The assessee filed the writ petition . The Court held that there being full and true disclosure by assessee reopening of assessment beyond four years was not permissible not withstanding subsequent decision of Court or retrospective amendment. (A.Y. 2005-06).
Voltas Ltd. v. ACIT (2012) 70 DTR 433 (Bom.)(High Court)
S.147: Reassessment – Full and true disclosure – Notice after four years – Reassessment is not permissible not withstanding retrospective amendment of law.
The assessment was completed under section 143 (3) on 30 the August , 2006 under the provisions of section 143(3) read with section 115JB. Reassessment notice was issued under section 148 on 8 the August 2011 for the Assessment year 2004-05 because of retrospective amendment of law which was introduced by Finance Act, 2009 with retrospective effect from 1st April 2001 due to introduction of Explanation (1) (i) to section 115JB as regards diminution in the value of investment. The reassessment notice was challenged by way of writ petition. The Court held that reasons for reopening contain absolutely no reference to there being any failure on the part of the assessee to fully and truly disclose all material facts Assessing Officer may have reason to believe that income has escaped assessment, but that itself is not sufficient for reopening an assessment beyond the period of four years . There must be failure on the part of assessee to fully and truly disclose all material facts necessary for assessment, therefore reassessment was held to be not valid, notwithstanding retrospective amendment of law. (A.Y. 2004-05)
DIL Ltd. v. ACIT ( 2012) 343 ITR 296 / 70 DTR 429 (Bom.)(High Court)
S.147: Reassessment – Reason to believe – Reassessment on the presumption that provisions of section 115AD would stand attracted is not valid – Succeeding Assessing Officer cannot improve upon the reasons which were originally communicated to the assessee. (S.148 )
The assessee company filed its return of income for the A.Y. 2006-07 on 31st Oct. 2006 declaring nil income. The assessee claimed that profits earned from the transactions in Indian securities are not liable to tax in India in view of art 7 of the India- Singapore treaty because the assessee company did not have PE in India. The assessment was reopened on the ground that no foreign companies are allowed to invest through stock exchange in India unless it is approved as FII by the regulatory authorities Viz- RBI, SEBI. Etc .According to the Assessing Officer the gain earned on investment as FII is liable to be taxed under section 115AD. The reassessment notice was challenged before the Court, the Court held that the attention was drawn to the notice of Assessing Officer that the assessee is not an FII and that provisions of section 115AD would not be attracted. The Assessing Officer attempted to improve upon the reasons which were originally communicated to the assessee. Those reasons constitute the foundation of action initiated by the Assessing Officer for reopening of assessment .Those reasons cannot be supplemented or improved upon subsequently . The court held that in the absence of any tangible material assessment could not be reopened under section 147, further succeeding Assessing Officer has clearly attempted to improve upon the reasons which were originally communicated to the assessee which was not permissible. ( A.Y.2006-07)
Indivest PTE Ltd v. ADDIT (2012) 250 CTR 15 / 206 Taxman 351 (Bom.)(High Court)
S. 147: Reassessment-Deduction at source- Software – Change of opinion -Assessing Officer has applied his mind as regards applicability of section 9(1) (vii), hence reassessment held to be bad in law. (S. 9(I)(vii), 195)
The assessee made payment towards software consultancy services to a foreign company, without deduction of tax at source. In the course of original assessment proceedings the assessee explained that payment made for consultancy services outside India were not chargeable under Act as per section 9 (1) (vii) , hence not liable for deduction of tax at source, which was accepted by the Assessing Officer. The Assessing Officer thereafter reopened the completed assessment on the ground that the assessee had neither any sale of software outside India nor earned any income from outside India and consumed all software in house and therefore consultancy charges paid to foreign company was to be disallowed. On writ petition challenging the reassessment, the court held that the Assessing Officer during the original assessment proceedings had gone in to and examined applicability of section 9 (1) (vii) and thereafter did not invoke section 9(1) (vii), therefore it being a change of opinion, reassessment is bad in law. The court also held that even otherwise since it was found that Assessing Officer had incorrectly recorded reasons by presuming that payments were made to Artech Software Information Systems LLC, where as the said transaction was in respect of software purchase from Micrografx, and assessee had given all details in respect of same, it could be said that the Assessing Officer had proceeded on wrong factual basis also, therefore, reopening proceedings was to be quashed. (A.Y. 2003-04)
Artech Infoystems (P) Ltd. v. CIT (2012) 206 Taxman 432 (Delhi)(High Court)
S. 147: Reassessment – Reasons-Validity – Reasons for reassessment was not furnished to the assessee before completion of assessment, held reassessment not valid.
The Tribunal following the judgment of Bombay High Court in CIT v. Fomento Resorts and Hotels Ltd ITA no 71 of 2006 dated 27th November, 2006 , has held that though the reopening of assessment was within three years from the end of relevant assessment year, since the reasons recorded for reopening of the assessment were not furnished to the assessee till date the completion of assessment, the reassessment order cannot be up held, moreover, special leave petition filed by revenue against the decision of this court in the case of CIY v. Fomento Resorts and Hotels Ltd , has been dismissed by Apex Court, vide order dated July 16, 2007. The court dismissed the appeal of the revenue.
CIT v. Videsh Sanchar Nigam Ltd. (2012) 340 ITR 66 (Bom.)(High Court)
Editorial : Refer Tata International Ltd. vs. Dy. CIT ITA Nos. 3359 to 3361/M/2009, A.Ys. 2001-02 to 2002-03, Bench “E” dated 29/6/2012.
S. 147: Reassessment – Reason to believe – Non submission of schedules to the balance sheet along with its income and expenditure account and balance sheet, does not form reasonable belief for reassessment.
The fact that the assessee, a charitable trust, has not submitted the schedules to the balance sheet along with its income and expenditure account and balance sheet or that it earned substantial rental income or that it earned income from sale of books and a printing press or that two societies are donating a fraction of their profits to the corpus of the assessee – trust did not constitute reason to believe that some taxable income had escaped assessment, moreso and therefore, initiation of reassessment proceedings as well as the assessment proceedings made under section 147 r.w.s. 143(3) in furtherance thereto were not valid. (A.Y. 1999-2000)
Bharati Vidyapeeth v. ACIT (2012) 146 TTJ 238 / 70 DTR 375 (Pune)(Trib.)
ACIT v Bharati Vidyapeeth (2012) 146 TTJ 238 / 70 DTR 375 (Pune)(Trib.)
S. 147: Reassessment – Reason to believe – Assessing Officer –Reasons to be formed only by Jurisdictional Assessing Officer and not any other Assessing Officer ,and issuance of notice is mandatory.
The basic requirement of section 147 is that the assessing officer must have a reason to believe that any income chargeable to tax has escaped assessment and such belief must be belief of jurisdictional assessing officer and not any other assessing officer or authority or department. Therefore the jurisdiction of AO to reopen an assessment under section 147 depends upon issuance of a valid notice and in absence of the same entire proceedings taken by him would become void for want of jurisdiction. (A.Y. 2006-07)
ACIT v. Resham Petrotech Ltd. (2012) 136 ITD 185 (Ahd.)(Trib.)
S. 148 : Reassessment – Notice-Jurisdiction – Assessment in Kolkata – Reassessment notice in Delhi, such reassessment is held to be without jurisdiction. (S. 127 )
Assessment having been made by AO in Kolkata, in the absence of any order under section 127 transferring the case, reassessment notice issued by AO at Delhi and all subsequent proceedings based on said notice are without jurisdiction. (A.Y. 1999-2000)
Smriti Kedia (Smt.) v. UOI (2012) 71 DTR 245 / 250 CTR 221 (Cal.)(High Court)
S. 148: Reassessment – Notice-After expiry of four years – Material and information provided by Investigation Wing to the AO on basis on which reasons recorded and assessment reopened, Issue of notice IS held to be valid.
Material and information provided by Investigation Wing to the AO, on the basis of which he recorded reasons and reopened the assessment, throw considerable doubt on the veracity, correctness, completeness and truth of particulars furnished by the assessee at the time of the original assessment and therefore notice issued by AO under Section 148 was valid. (A.Y.2004-05)
Money Growth Investment & Consultants (P) Ltd. v. ITO (2012) 71 DTR 317 (Delhi)(High Court)
S. 154: Assessment – Rectification of mistake – Set off of loss – E-Return – Department is hauled up for Central processing return (CPC) fiasco & unnecessarily harassing assessee but spared of costs on the ground that AO & CIT(A) were “only doing their duty”- Copy of order served on CBDT for necessary action.
The assessee filed an e-return disclosing income of Rs. Nil which was arrived at after setting off against the current year’s income of 9.53 crores, the brought forward losses of Rs. 12.43 crores. In the electronic processing, the loss set off was shown at Zero and a demand of Rs. 3 crores was raised. The assessee filed a rectification application u/s.154. The AO rejected the application on the ground that the assessee had “not claimed any loss” while the CIT (A) rejected it on the ground that “set off of losses cannot be a matter of rectification”. The assessee filed an appeal before the Tribunal and demanded costs u/s 254(2B) for the hardship. Held by the Tribunal:
(i) The AO & CIT (A) were not justified in rejecting the assessee’s claim because as the losses had already been determined in the earlier years, the same were required to be allowed as set off against current income of the assessee. The CPC itself later issued a rectification order setting off losses of Rs. 9.53 crores though it still did not mention carry forward of losses. The assessee’s plea for costs u/s 254(2B) for “unnecessary hardship” cannot be accepted because the lower authorities were only “doing their duty”.
(ii) As regards the CPC, observed:
We would like to take this opportunity to bring to the notice of CBDT that after the procedure of Central processing of returns, many issues have come before various forums where unnecessary demands have been raised due to non-grant of TDS, wrong computation of income, adjustment of the previous year demand which have already been deleted by the jurisdictional assessing officer. Therefore, we would like to urge the CBDT to take up this matter urgently and establish proper coordination between the assessing authority and Central Processing Authority so that these problems are immediately solved and unnecessary litigation can be avoided. Copy of this order should be forwarded to the Chief Commissioner of Income-tax, Chandigarh and Chairman of CBDT for necessary action.
Ambala Central Cooperative Bank Ltd v. ITO ( Chandigarh)(Trib.)
S. S.158BC: Block assessment- Procedure-Search and Seizure – Warrant - Undisclosed income of any other person - As there was no warrant in the name of assessee block assessment in the name of assessee was set aside. ( S. 158BD)
A warrant was issued in name of “C” a partner of assessee firm for initiation of search proceedings . There was nothing in the said warrant indicating that it had been issued in name of “C” in capacity as partner of firm. More over the assessment was made in the hands of “C” u/s.158BC . Subsequently the assessment order was passed in the name of firm also u/s.158BC. Before the Commissioner (Appeals) the Assessee challenged that the assessment under section 158BC in the hands of firm is illegal. However the Commissioner (Appeals) dismissed the ground and up held the order. On appeal to the Tribunal the tribunal held that is a treaty law that the assessment has to be completed under Section 158BC in the case of a person whose name search warrant is issued and in the case of ‘Other persons’, the assessment should be made under Section 158BD r.w.s. 158BC. When it is crystal clear from the panchanama that the warrant was issued in the case of ‘C’ only and the assessee – firm had been mentioned as the place to be searched it cannot be said that the warrant was in the case of assessee firm. The Tribunal held that the assessment under section 158BC is bad in law and set aside the order.
Kothamangalam Aggregates Nelkrishi v. Dy. CIT (2012) 136 ITD 244 (TM)(Cochin)(Trib.)
S. 158BE: Block assessment – Time limit - Panchnama – A panchnama which does not record a search does not extend limitation, hence order held to be invalid.
The AO issued two authorizations for search, one dated 17.2.2002 and the other 20.12.2002. In respect of the first authorisation, the last panchnama was drawn on 3.1.2003 while in respect of the second authorization, the last panchnama was drawn on 27.2.2002. The s. 158BC assessment order was passed on 31.1.2005 on the basis that the “last panchnama” was drawn on 3.1.2003. The assessee claimed that as the panchnama dated 3.1.2003 was merely for revocation of a s. 132(3) order, it was not a “panchnama of search” and so could be taken into account. The “last panchnama” was the one dated 27.2.2002 according to which the assessment order was barred by limitation u/s 158BE read with Explanation 2 thereof. held by the Special Bench upholding the plea:
(i) S. 158BE (1) prescribes the time limit for completion of the block assessment with reference to the end of the month in which the “last of the authorisations for search” was executed. Explanation 2 provides that the authorisation shall be deemed to have been executed “on the conclusion of search as recorded in the last panchnama drawn“. The “panchnama” referred to in Explanation 2 (a) to s.158BE is a panchnama which documents the conclusion of a search. If a panchnama does not reveal that a search was at all carried out on the day to which it relates, it would not be a panchnama relating to a search and consequently would not be relevant to determine the time limit for passing the assessment order (CIT v. S.K. Katyal (2009) 308 ITR 168 (Delhi)(High Court), CIT v. White & White Minerals Pvt. Ltd. (2011) 330 ITR 172 (Raj.) (High Court) & C. Ramaiah Reddy v. CIT (2011) 244 CTR 126 (Kar.)(High Court) followed;
(ii) On facts, the panchnama dated 3.1.2003 was drawn as a formality to lift the prohibitory order. There was no conclusion of search. Whatever material was required to be seized or impounded was already seized/impounded by the Department. It was merely a release order and could not extend the period of limitation. Consequently, the s. 158BC assessment order is barred by limitation;
ACIT v. Shree Ram Lime Products Ltd. (SB)(Jodhpur)(Trib.) www.itatonline.org.
S. 194A: Deduction at source – Interest other than interest on securities – Interest – Definitions-Discount-Discounting charges is not “Interest” hence not liable to deduct tax at source. (S. 2(28A), 40(a)(ia), 195).
The assessee paid Rs. 3.97 Crores to an associate concern in Singapore on account of discounted charges for getting the export sale bills discounted. The AO held that that the discounting charges was “interest” u/s 2(28A) and that as there was no TDS, the expenditure had to be disallowed u/s 40(a)(i). This was reversed by the CIT(A) and Tribunal. The High Court also up held the order [CIT v. Gargill Global Trading P. Ltd. (2011) 335 ITR 94 (Delhi)] Relied on Circular No.65 dated 2.09.1971, Circular No.674 dated 22.03.1993 & Vijay Ship Breaking Corporation v. CIT ( 2009) 314 ITR 309 (SC) and held that as the discounting charges were not in respect of any debt incurred or money borrowed and were merely discount of the sale consideration on sale of goods, it was not “interest” u/s.2(28A) and there was no obligation to deduct TDS thereon. On appeal by the department to the Supreme Court, held that, delay is condoned. The Special Leave Petitions are dismissed. (A.Ys. 2004-05, 2005-06)
CIT v. Cargil Global Trading Pvt. Ltd. (SC) www.itatonline.org.
Editorial- Affirmed ACIT v. Cargill Global Trading (I) P. Ltd. (2009) 34 SOT 424 / 126 TTJ 516 / 31 DTR 289 / (2011) 9 ITR 558 (Delhi)(Trib.) / (CIT v. Gargill Global Trading P. Ltd. (2011) 335 ITR 94 (Delhi) (High Court)
S. 194C: Deduction at source – works contract – Copy right- Amounts not deductible-Franchisee agreement to utilize the copy right is held not be a works contract hence provisions of section 40(a) (ia) is not applicable [S. 40(a)(ia)].
Agreement between assessee and franchisees was an agreement for permitting payee to utilize the name and copyright of the assessee in the study material and in running the coaching centres, and there were mutual rights, duties and obligations and it was not a work contract. The provisions of S. 194C and consequently S. 40(a)(ia) not applicable. (AY 2004-05 & 2005-06)
CIT v. Career Launcher India Ltd. (2012) 71 DTR 161 / 207 Taxman 28 / 250 CTR 240 (Delhi)(High Court)
S.194H: Deduction at source- Commission-Brokerage – Sale of milk and milk products – Agents – TDS is not deductible on sale of milk and milk products at concessionaires.
Assessee has sold the products to the concessionaires on a principal to principal basis ,that the concessionaries buy the products at a given price after making full payment for the purchases on delivery, that the milk and other products once sold to the concessionaires became their property and cannot be taken back from them, that any loss on account of damage, pilferage and wastage is to the account of the concessionaires and that in these circumstances the payment made to the concessionaires cannot be treated as “commission” for services rendered and consequently there was no liability on the part of assessee to deduct tax. Assessing Officer held that the relationship of assessee and concessionaries are agent hence liable to deduct tax at source. The view of Assessing Officer was followed by the Commissioner (Appeals). On appeal to the Tribunal, the Tribunal held that the real test to be applied is whether the property in the milk and products passed to the concessionaries at the time of delivery .On applying the test the Tribunal came to the conclusion that difference between the price at which the assessee sold the milk and other products to the concessionaries were to sell them to consumers was not liable to be treated as commission within the meaning of section 194H. On appeal to the High Court by revenue the Court also confirmed the view of Tribunal and held that sale of milk and milk products by assessee dairy to concessionaries /agents who hold the same from the booths owned by the assessee was on principal to principal basis and therefore assessee dairy was not liable to deduct tax at source under section 194H from the payments made to concessionaires. Appeal of revenue was dismissed. (A.Ys. 2004-05 & 2005-06)
CIT v. Mother Dairy India Ltd. (2012) 70 DTR 223 (Delhi)(High Court)
CIT v. Mother Dairy Food Processing Ltd. (2012) 70 DTR 223 (Delhi) (High Court)
S. 194H: Deduction at source – Commission – Brokerage – Failure to deduct tax at source the defaulter is liable only for interest and penalty and not the tax.
The assessee, a publisher of newspapers, gave 10-15% trade discount to advertising agencies as per rules of the Indian Newspaper Society. The AO held that the said discount constituted “commission” and that the assessee ought to have deducted TDS u/s 194H and was liable as assessee-in-default u/s 201. The assessee filed a Writ Petition to challenge the said order. Held by the High Court:
(i) Though the assessee has an alternate remedy of appeal against a Sec. 201 order, a writ is maintainable if the authority has wrongly assumed jurisdiction. Also, a huge demand has been raised and multiplicity of proceedings will increase the assessee’s sufferings even though s. 194H is clearly not applicable;
(ii) To constitute “commission or brokerage” u/s 194H, it is necessary that person receiving payment should be acting as agent and rendering services. The relationship between the assessee and the advertising agency in accordance with the INS Rules is that of a principal to principal because (a) the assessee has no control over the advertising agency, (b) the advertising agency is responsible for payment even if the advertiser has not paid the advertising agency, (c) the advertising agencies are rendering service to the advertisers/ customers & other terms. The “discount” was not “commission”;
(iii) The deductor cannot be treated an assessee in default till it is found that the assessee (recipient) has also failed to pay such tax directly. To declare a deductor who failed to deduct the tax at source as an assessee in default, condition precedent is that assessee has also failed to pay tax directly. However, even then, the short deducted tax cannot be realised from the deductor and he is at best liable for interest and penalty only;
(iv) The Department’s practice of hurriedly passing assessment orders shortly before the limitation period is about to expire and justifying this practice by saying that there was shortage of time and hence facts could not be verified properly is not appreciated because it puts citizens to great harassment as exorbitant demands are raised and it breaches the principles of natural justice.
Jagran Prakashan Ltd. v. DCIT (TDS) (All (High Court) www.itatonline.org.
S. 194 J : Deduction at source – Fees for professional or technical services – Rent - Transmission charges – Transmission charges paid is neither fees for technical services nor rent hence not liable to deduct tax at source. (S.194I)
Transmission charges paid by the assessee, an electricity distribution company, to the transmission company neither in nature of fees for technical services nor rent and, therefore the same do not come under the purview of Section 194J and 194I, and thus, assessee not liable to deduct TDS from the transmission charges. (A.Ys. 2005-06 to 2007-08)
Bangalore Electricity Supply Co. Ltd. v. ITO (2012) 71 DTR 186 (Bang.)(Trib.)
S. 194 J: Deduction at source – Fees for professional or technical services- State Load Dispatch Centre charges is not in the nature of fees for technical services hence not liable to deduction of tax at source.
In the said case, the assessee was granted distribution and retail supply of power by Karnataka Electricity Regulatory Commission. In pursuance of the mandate of Electricity Act, 2003, the government of Karnataka formed the State Load Dispatch Center (SLDC) for smooth flow of operations amongst the power generation company. It was held that the provisions of S. 194J are not attracted to SLDC charges paid by the assessee, a power distribution company as the assessee or its employees do not receive or derive any benefit of technical nature from SLDC in their sphere of work. The said charges paid by it are only reimbursement of actual expenses, and therefore, no deduction of tax was to be made thereon. (A.Ys. 2005-06 to 2007-08)
Bangalore Electricity Supply Co. Ltd. v. ITO (2012) 71 DTR 186 (Bang.)(Trib.)
S. 195 : Deduction at source – Non-resident – Other sums – Income deemed to accrue or arise in India – Foreign agent – Commission – Business connection – Permanent establishment. (S. 4(1), 40(a)(ia), 195).
A foreign agent of an Indian exporter operates in his own country and his commission is directly remitted to him. Such commission is not received by him or in his behalf in India, and such agent is not liable to income tax in India on commission received by him. As there was no right to receive income earned in India nor there was any business connection between assessee and ETUK, therefore when income was not chargeable to tax in India under section 4(1), there was no question of invoking provisions of section 195 hence no disallowance can be made under section 40(a)(ia). (A. Y. 2007-08).
CIT v. Eon Technology (P) Ltd. (2011) 203 Taxman 266 / 64 DTR 257 / (2012) 343 ITR 366 (Delhi)(High Court).
Editorial: Affirmed view of Tribunal in Dy. Eon Technology (P) Ltd. (2011) 46 SOT 323 (Delhi)(Trib.)
S. 195 : Deduction at source –Non-resident – Other sums – Interest- Interest payment to Swedish company is not taxable in India hence the assessee has no obligation to with hold the tax .
The assessee is engaged in the business of providing telecommunication services across different circles in India . During course of its business, it entered in to a contract with Ericsson India (P) Ltd. and Ericsson AB for procuring cellular telecommunication equipment, soft ware services and documentation. To facilitate the financing for such procurements, the assessee availed the of a loan facility from ABN Amro Bank Stockholm Branch and NORDEA Bank AB Sweden. Loans taken from Swedish Banks guaranteed by Swedish Export Credits Guarantee Board. The assessee approached the Authority for advance ruing on the plea that all the agreements relating to the transaction were negotiated and concluded outside India. It takes the stand that loan having been guaranteed by EKN , the interest paid under the transactions is not liable to charge to tax in India under the income-tax Act in view of article 11(3) of Double Taxation Avoidance Convention Between India and Sweden. The Authority held as under
(i) That guaranteeing a loan is not the same as extending a loan or endorsing a loan. Thus, on the basis of article 11(3) of the DTAA between India and Sweden, the applicant could not claim that the interest paid or payable could not be taxed in India.
(ii) That in view of the Protacol to the DTAA in which there was a most favoured nation clause covering interest dealt with in article (11)(3) of the DTAA , even a loan or credit guaranteed by EKN would come within the purview of the exemption contained in article 11(3) of the DTAA. Therefore, the payment of interest by the applicant to SEK through NORDEA Bank AB was not taxable in India under article 11 (3) of the Double Taxation Avoidance Agreement between India and Sweden.
(iii) That since it was claimed that SEK had no permanent establishment in India, there would be no obligation on the applicant to with hold taxes under section 195 of the Income-tax Act, 1961, on the interest payable on the transaction.
Idea Cellular Limited (2012) 343 ITR 381 (AAR)
S. 195 : Deduction at source – Non-resident – Other sums – DTAA-India-Japan- Informatics software and services- Royalty- Payment received from the sale of software products to the end users/customers through its independent reseller in India is royalty ,hence tax is deductible. (Art. 7, 12 )
The applicant, a Japanese scientific informatics software and services company for life sciences, chemical and material research and development was a subsidiary of a company incorporated in the U.S.A.. It had a liaison office in India which acted as a co-ordinator. No sales were carried through the liaison office. The applicant sought an advance ruling on the questions whether payment received by the applicant from sale of software products to end users / customers through an independent resellers in India were taxable as business profits under Article 7 of the DTAA between India And Japan, whether payments received by the applicant from sale of software products to end user / customers through its independent reseller in India would not constitute “royalties and fees for technical services” as defined in article 12 of the DTAA and whether any tax needed to be deducted by the customers while making remittances to the applicant as consideration. The Authority ruled that:
- That what was paid by the reseller to the applicant and for updates and maintenance was royalty and not business income covered by article 7 of the DTAA.
- That the payments received by the applicant from the sale of software products to the end users/customers through its independent reseller in India were royalty as defined in article 12 of the DTAA.
- That tax needed to be deducted by the customers while making the remittances to the applicant as consideration for the software supplied to them.
Acclerys kk (2012) 343 ITR 304 (AAR)
S. 201: Deduction at source – Failure to deduct or pay- Limitation-For initiating proceedings under section 201, issuance of notice beyond reasonable time period of 4 years, barred by limitation .
Even if no period of limitation is mentioned or prescribed, the statutory power must be exercised within reasonable period. Therefore, notice under section 201 and 201(1A) issued beyond the reasonable period of four years were barred by limitation. (A.Y. 1996-97)
CIT v. Satluj Jal Vidyut Nigam Pvt. Ltd. (2012) 71 DTR 145 (HP) (High Court)
S.206AA: Require to furnish Permanent Account Number-Deduction at source- PAN law read down to not apply to assessees without taxable income – (S. 139A, Article, 226 Constitution of India)
The assessee, whose income was below taxable limit, filed Form 15G and requested that no TDS be deducted on the interest on fixed deposit. However, she was informed that in view of s. 206AA inserted by FA 2009, TDS would have to be deducted in the absence of PAN. The assessee filed a writ petition to challenge s. 206AA as being arbitrary and unconstitutional to the extent that it compelled persons with no taxable income to obtain a PAN. Held upholding the challenge:
U/s 139A, only persons whose income is chargeable to tax are required to obtain a PAN. However, s. 206AA compels even persons without a taxable income to obtain a PAN to avoid TDS. This creates difficulty for poor and illiterate persons who make small investments and discourages them to invest money. S. 206AA runs counter to s. 139A and is discriminatory. Though the Legislature’s intention is to bring maximum persons under the income-tax net, it may not insist that even persons whose income is below the taxable limit have to compulsorily obtain a PAN. If any tax avoidance is detected, that can be taken care of by penal provisions. Accordingly, s.206AA is read down as being inapplicable to persons whose income is less than the taxable limit. Banks & financial institutions should not insist upon PAN from such small investors. It continues to apply to persons whose income is above the taxable limit.
A Kowsalya Bai v. UOI (Karn.)(High Court) www.itatonline.org
S.226: Collection and recovery- Modes of recovery-Garnishee proceedings – Assessee can approach the Assessing Officer against garnishee proceedings and request for withdrawal, writ is not the remedy.
Against the garnishee proceedings the assessee filed a writ petition on the ground that once the money is recovered under garnishee order the revocation of the notice will be of no consequences. The court held that such a presumption is without any legal base because of the reasons that with the withdrawal of the notice of garnishing, the action taken in furtherance of garnishing order falls down and possession of the property is required to be restored to the assessee and if the Assessing Officer by exercising power under sub –clause (vii) of sub section (3) of section 226 of the said Act obtains money from the payee of the assessee, he has been given power to withdraw the notice and it cannot be interpreted to mean that notice can be withdrawn only before giving effect to the garnishing order and receiving the money by the Assessing Officer. Otherwise the words at any time or from time to time will be of no consequence in sub clause (vii) of sub section (3) of the said Act. The Court held that the assessee is free to challenge the order of non – revocation of the garnishee order under sub clause (vii) of sub section (3) of section 226. Commissioner was directed to hear the appeal expeditiously.
Central Coal Fields Ltd v. CIT (2012) 249 CTR 523 (Jharkhand)(High Court)
S. 234A: Interest – Default in furnishing return of income – Charge – Assessment order – Interest, though mandatory, is not payable if Assessing Officer does not direct it to be charged in assessment order (S. 234B & 234C)
The AO passed assessment order u/s. 143(3) in which he omitted to direct that interest u/s 234A, 234B & 234C should be levied. The Tribunal, relying on CIT v. Ranchi Club Ltd (2001) 247 ITR 209 (SC) held that in the absence of a specific direction, interest was not leviable. Before the High Court, the department relied on the larger bench decision in CIT v. Anjum M. H. Ghaswala and Ors. (2001) 252 ITR 1 (SC) and argued that as interest u/s. 234A, 234B & 234C was mandatory, there was no need for the assessment order to specifically direct that interest should be charged. Held dismissing the appeal:
In CIT vs. Ranchi Club Ltd. (2001) 247 ITR 209 (SC) it was held that the order of the AO in the assessment order to charge interest has to be specific and clear and the assessee must be made to know that the AO after applying his mind has ordered charging of interest. In Anjum M.H. Ghaswala (2001) 252 ITR 1 (SC), it was held, in the context of whether the Settlement Commission could waive interest, that the levy was mandatory and could not be waived. Subsequently, in Insilco Ltd. (2005) 278 ITR 1 (SC), the Supreme Court remanded the matter to decide whether the law laid down in Ranchi Club had been changed by Anjum M.H. Ghaswala or not. Ranchi Club Ltd has not been expressly overruled nor has a different view been taken in Anjum M.H. Ghaswala‘s case. There is also no force in the department’s argument that even if assessment order or computation sheet does not provide for interest, since interest is mandatory, it can be charged in the demand notice which is signed by the A.O. Even if a provision of law is mandatory and provides for charging of tax or interest, the view taken in Ranchi Club Ltd is that such charge by the AO should be specific and clear and assessee must be made to know that the AO has applied his mind and has ordered charging of interest. The mandatory nature of charging of interest and the actual charging of interest by application of mind and the mention of the proviso of law under which such interest is charged are two different things. Consequently, if the assessment order is silent, interest u/s 234A, 234B & 234C cannot be levied.
CIT v. Awadh Hotels (P) Ltd (Allah) (High Court)www.itatonline.org
S. 245: Refunds – Set off of refunds – against tax remaining to be payable -Deduction at source - TDS refund - High Court takes notice of TDS refund harassment by department and demands answers. (S.199)
One Anand Parkash, FCA, addressed a letter dated 30.4.2012 to the High Court in which he set out the numerous problems being faced by the assesses across the Country owing to the faulty processing of the Income Tax Returns and non-grant of TDS credit & refunds. He claimed that because of the department’s fault, the assessees were being harassed. The High Court took judicial notice of the letter, converted it into a public interest writ petition and directed the CBDT to answer each of the allegations made in the letter. In addition, the Court demanded an answer to the following issues:
(1) Whether procedure under Section 245 of the Income Tax Act, 1961 is being followed before making adjustment of refunds and whether assessees are being given full details with regard to demands, which are being adjusted.
(2) Whether the Revenue is taking caution and care to communicate rejection of TDS certificates and intimation under Section 143(1) in case any adjustment or modification is made to taxes paid, either as advance tax, self assessment tax or TDS.
(3) Whether and what steps are taken to verify and ascertain that the old demands against which adjustment is being made was communicated to the assessee?
(4) What steps have been taken to ensure that the deductors correctly upload the TDS details/particulars on the Income Tax website?
(5) What is the remedy available to the assessee and can he/she approach the Department in case the deductor fails to correctly upload the particulars in his/her cases?
(6) Whether an assessee can get benefit of TDS deducted or/and paid but not uploaded by the deductor and procedure to claim the said benefit?
Court On Its Own Motion v. CIT (Delhi)(High Court) www.itatonline.org
S. 246: Appeal – Commissioner (Appeals) – Appealable orders-Company whose name struck off from the register by ROC the director of erstwhile company is authorized to sign Form 35 and file an appeal
In case of a company whose name has been struck off the register by the Registrar of Companies can file an appeal under Section 246 and in that situation the Director of erstwhile company is authorized to sign the requisite form. (A.Y. 2006-07)
Ajay Ispat (P.) Ltd v. ITO (2012) 136 ITD 145 (Ahd.)(Trib.)
S. 249: Appeal – Commissioner (Appeals) – Form of appeal and limitation – Payment of tax due on returned income mandatory, however no time limit is prescribed for the same.
Only requirement of Section 249(4) is payment of tax due on returned income. There is no such time limit is prescribed for payment of such taxes. If an appeal has been filed has been filed after making payment, it cannot be said that the requirement of section 249(4) has been complied with. (A.Y. 1996-97)
ITO v. Ankush Finstock Ltd. (2012) 136 ITD 168 (Ahd.)(Trib.)
S.254(1): Appellate Tribunal –Orders-Binding precedent- Tribunal cannot come to conclusion contrary to earlier order, or alternatively, can refer the matter to larger bench.
The Tribunal is to follow the decision of another bench where the facts are same, this is a treaty law. The only other alternative is to refer the matter to larger bench if the Members of this Bench are not willing to follow the earlier order. However, the Bench cannot come to a conclusion contrary to conclusion reached in earlier order of Tribunal. (A.Ys. 2003-04 to 2005-06)
A CIT v. Chandragiri Construction Co. (2012) 136 ITD 133 (TM )(Cochin)(Trib.)
S. 254(1) : Appellate Tribunal Orders – Power – Additional ground – Entire law on what is “Additional Ground” & power of Tribunal to admit it reviewed. (S.253(1), Income-tax (Appellate Tribunal ) Rules, 1963 – Rule 11
The assessee filed an appeal before the Tribunal in which it raised the ground (in Form 36) that u/s.153A, the AO was not entitled to make additions which were not based on incriminating material found during the search. This ground was not raised before the AO or the CIT(A). Before the Special Bench, the department argued that as the ground was not raised before the lower authorities, it was an additional ground and could not be entertained. Held by the Special Bench:
(i) The assessee’s argument that as the ground was taken in the memorandum of appeal, it was not an “additional ground” for which leave was required from the Tribunal is not acceptable because s. 253(1) permits an assessee “aggrieved” to file an appeal. A person can be “aggrieved” only if a ground had been raised and it is decided against him. S. 253(1) bars a ground which was not raised and not decided by the CIT(A) because there can be no grievance in respect of a matter which is not raised at all Pokhraj Hirachand v.CIT (1963) 49 ITR 293 (Bom.) followed;
(ii) On the question whether such a ground can be raised for the first time before the Tribunal, the subject matter of an appeal consist of three elements (a) the grounds taken in the memorandum of appeal, (b) the grounds for which leave is allowed by the Tribunal and (c) grounds taken by the respondent for supporting the order of the CIT(A). The Tribunal is not confined only to issues arising out of the appeal before the CIT(A) but has the discretion to allow a new ground to be raised. If a pure question of law arises for which facts are on record of the authorities below, the question should be allowed to be raised if it is necessary to assess the correct tax liability. The submission that the ground could not be raised earlier as the assessee did not have the services of an advocate at its command is reasonable and bona-fide National Thermal Power Co. Ltd v.ITO (1998 )229 ITR 383 (SC) followed). ( A.Ys. 2004-05 to 2009-10)
All Cargo Global Logistics Ltd v. DCIT (2012) 72 DTR 1 / 146 TTJ 657 / 16 ITR 38 (SB)(Mum.)(Trib.)
S.260A : Appeal- High Court – Power of review- Review petition is dismissed against the order of High Court in tax appeals.
Revenue filed application seeking review the order passed by the High Court in the tax appeal. The assessee relying on judgment in the case of CIT v. West Coast Paper Mills Ltd (2009) 319 ITR 390 (Bom.) (High Court), contended that no review is maintainable , enabling review of the order by the High Court in tax appeal and sub section (7) of section 260A does not permit such a course. The revenue contended that the power of review is a akin to section 100 of the C.P.C. and if an appeal lies on the substantial question of law under section 100 of the C.P.C., the High Court while exercising the appellate power in terms of this provision, is empowered to review its own orders. The revenue submitted that section 114 of the C.P.C. read with order XL.VII, Rule (1) of the C.P.C. specifically confers power of review in appeal and in these circumstances all provisions enabling the High Court, in exercise of its appellate, power, to deal with first appeals and second appeals have been made applicable, that would include power of review. The Court held that power of review cannot be read in to sub-section (7) of section 260A and therefore, review petition is not maintainable against order passed by High Court in tax appeals by invoking sub section (7) of section 260A.
CIT v. Automobile Corporation of Goa Ltd. (2012) 206 Taxman 640 (Bom.)(High Court)
S.263: Commissioner – Revision of orders prejudicial to revenue – Cess on green tea leaves – Revision of order on the basis of Guwahati High Court which was not approved by Jurisdictional High Court is not valid.
The Assessing Officer while making assessment under section 143(3) has allowed, cess paid green leaf to the Government as business expenditure . After wards the proposal was sent by the Assessing Officer for revising the order under section 263 on the ground that the Guwahati High Court in Jorehaut Group Ltd. v. Agri ITO (1997) 226 ITR 622 (Gau) held that the cess should be deductible from agricultural income-tax proceedings. Commissioner revised the order , which was up held by the Tribunal. On appeal to the High Court there was no justification for commissioner to invoke section 263 to disallow the cess on green tea leaves on the basis of decision of the Guwahati High Court when the said decision was not approved by the Jurisdictional High Court in CIT v. A.F.T. Industries Ltd (2004) 270 ITR 167 (Cal ) (High Court) and it has been held that the amount of cess so payable is deductible. The revision order was set aside. (A.Y.1995-96)
Hindustan Lever Ltd v. CIT (2012) 70 DTR 182 / 249 CTR 367 (Cal.)(High Court)
S.263: Commissioner – Revision of orders prejudicial to revenue – limitation -Limitation from the original assessment order under section 143 (3).
The order under section 143(3) was passed on 10th March 1999. The said order was revised under section 147 read with section 148, the issues which was allowed under section 143(3) was not the subject matter of reassessment. The Commissioner passed the order under section 263 revising the order passed under section 143(3) dated 10th March 1999. Second order of reassessment was passed on 26th March 2002 . The order under section 263 was passed on 28th March 2003. The said order was quashed by the Tribunal. On appeal to the High Court, the Court held that where the jurisdiction under section 263(1) is sought to be exercised with reference to an issue which is covered by the original order of assessment under section 143 (3) and does not form the subject matter of the reassessment . Limitation must necessarily begin to run from the order under section 143 (3). The order of Tribunal is up held. (A.Y.1996-97)
CIT v. ICICI Bank Ltd. (2012) 70 DTR 419 (Bom.)(High Court)
S.263: Commissioner- Revision of orders prejudicial to revenue-Housing project- Areas of open land / garden and also merger of flats exemption cannot be denied- Revision of order held to be invalid .( S.80IB (10)
The assessee firm started construction of residential project at Aundh, Pune. The total area of the plot was shown to be 3995.34 mts. i.e. marginally less than the prescribed area of 1 acre. The assessee submitted that an additional area of land of measuring 5 ‘Are’ was also acquired by the assessee for the approach road to the said project vide separate agreement with same land lord . On including this area it exceeded 1 acre. The assessee further submitted that if this area would not have sanctioned the plan and issued commencement certificate. Assessing Officer visited the site and allowed the deduction. Commissioner found this order to be erroneous and prejudicial to the revenue on the ground that (1) the area of the plot of project is less than 1 acre ; (2) As per sale agreement of row house , the saleable area mentioned is more than 1500 sq. feet; (3) in A.Y. 2005-06 the Assessing Officer in order passed under section 143 (3) denied deduction under section 80IB (10) and (4) flats have been merged together and the modification is not as per approved plans . The assessee filed an appeal before the Tribunal against the order under section 263.The Tribunal held that, Areas of open land /garden /store /gym room meant for common use are not to be included for calculating built up area of the residential unit- Merger of flat after purchase , by owners thereof to make it larger flat for their convince cannot be denied exemption . Tribunal held that the revisional order is not valid . ( A.Ys. 2004-05, 2005-06, 2006-07 )
Baba Promoters & Developers v. ITO 40 (2012) 44-A.BCAJ –April –P40 (Pune) (Trib.)
S. 271 (1) (C ): Penalties- Concealment- Book profit -Despite concealment, u/s. 271(1)(c) – Penalty cannot be levied if income is assessed under section 115JB .
For A.Y. 2001-02, the assessee filed a ROI declaring loss of Rs.43.47 crores under the normal provisions of the Act and book profits of Rs.3.86 crores u/s.115JB. The AO assessed a loss at Rs.36.95 crores as per normal provisions and book profits at Rs.4.01 crores. As there was a reduction in the loss under the normal provisions owing to various additions and disallownaces, the AO levied penalty u/s. 271(1)(c) in accordance with Explanation 4 & CIT v. Gold Coin Health Food P. Ltd (2008) 304 ITR 308 (SC). Before the High Court, the assessee argued that even if there was a concealment u/s 271(1)(c) with respect to the normal assessment, the same was not relevant because the assessee’s income was assessed u/s 115JB. The High Court accepted the plea and held that as the s. 115JB “book profits” were by a legal fiction deemed to be the “total income”, the furnishing of wrong particulars had no effect on “the amount of tax sought to be evaded” as defined in Explanation 4 to s. 271(1)(c). On appeal by the department to the Supreme Court, held that delay condoned. The Special Leave Petition is dismissed. (A.Y. 2001-02)
CIT v. Nalwa Sons Investment Ltd. (SC) www.itatonline.org.
S. 271(1) (c ): Penalties – Concealment- Lease and finance-Depreciation- Penalty held to be not justified.
The assessee entered in to a transaction of leasing. The assessee claimed the depreciation. It was found that the documents were fabricated and bogus. The assessee filed the complaint in the police station. The claim of depreciation was disallowed and penalty for concealment was levied . The penalty was deleted by the Commissioner (Appeals) and which was confirmed by the Tribunal. On appeal further appeal to the High Court by revenue the Court confirmed the order of Tribunal and held that the order of Tribunal being not perverse there is no concealment .( A.Ys. 1990-91 , 1991-92)
CIT v. Sangeeta Leasing (2012) 343 ITR 428 (Delhi)(High Court)
S. 271(1)(c): Penalties – Concealment – Legal opinion – Compensation for alternative accommodation-Simply because the claim of assessee has not been accepted by tax authorities levy of penalty is not justified.
The assessee claimed in the return of income compensation on account of failure to provide alternative accommodation as capital receipt. The assessment was reopened and the addition was confirmed by the Tribunal. In the penalty proceedings it was contended that the a proper note was put in the accounts based on the opinion of the counsel stating that the receipt is not taxable. The penalty was levied by the Assessing Officer and the same was confirmed by the Commissioner (Appeals). Tribunal held that assessee having claimed that the amount received by it from its landlord as compensation on account of land lord’s failure to provide an alternative accommodation to the assessee on vacating its premises is a capital receipt on the basis of legal opinion given by senior advocate and distinctly showed the said amount as an extraordinary receipt by giving separate note to the annual accounts as well as in the computation of income attached with the return, the claim of the assessee cannot be categorized as not bonafide in any manner and therefore, it cannot be said to be a case of concealment of income or furnishing of inaccurate particulars simply because the claim of the assessee has not been accepted by the tax authorities ; penalty under section 271(1)(c ) deleted. (A.Y. 1994-95)
Pfizer Ltd v. Dy.CIT ( 2012) 70 DTR 239 / 146 TTJ 385 (Mum)(Trib.)
S.272A(2)(f): Penalties-Form no 15H-Proviso-Prior to 1st June 1992 no penalty can be levied for failure to file form no 15H, Proviso being remedial operation will have retrospective operation and penalty could not exceed the tax deductible.(S.197A )
The assessee was required to obtain and file the declarations in form no 15H , which were to be filed with Commissioner under section 197A(2) of the Act.
In response to show cause notice the assessee pleaded that he was under the bonafide belief that till 1st June, 1992 the Income-tax Act 1961 did not require form no 15H of the Act to be filed and in any case there was no loss to the revenue. The Commissioner levied the penalty. In appeal the Tribunal held that for assessment years 1991-92 and 1992-93 no penalty can be levied under section 272A(2)(f) till 1st June 1992 because there was no statutory obligation to file the prescribed form under section 197A. For the assessment year 1994-95 the penalty should be calculated in accordance with the proviso to section 272A of the Act where in it is stipulated that the penalty levied should not exceed the tax deductible as the said proviso was held to be retrospective in operation .On appeal by revenue the High Court also confirmed the order of Tribunal and dismissed the appeal. (A.ys. 1991-92, 1992-93 and 1994-95)
CIT v. Krishna Cold Storage (2012) 69 DTR 345 / 207 Taxman 1 (Guj.)(High Court)
S. 281: Certain transfers to be void- Priority of dues to Government –Secured creditor- Income-tax department by way of attachment of assets cannot claim for priority over secured creditor for realization of Income-tax due.(S.13, 35, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002).
Property of borrower Company mortgaged to secured creditor (Bank). Charge created without notice to Bank of pending income-tax recovery proceedings against company. The Income tax department informed the petitioner stating that substantial tax due for the assessment years 1993-94 to 1996-97 . This fact was informed the official liquidator and outstanding due and property has been attached by the Income tax department , therefore the claim of Income tax department on the assets of the assessee company should be exhausted before the sale of assets of the company. The Court held that transfer or charge would not be void . Income-tax department by way of attachment, of assets covered by section 13 (2) cannot claim for priority over secured creditor for realization of Income–tax dues. It will be open for the secured creditor for realization of income tax dues. It will be open for secured creditor to exercise his right under SARFAESI Act and Rules made there under and Income-Tax department can not in any manner hamper or restrain secured creditor in proceedings further under SARFAESI Act. Accordingly the attachment of property by Income-tax department was held to be illegal. The petition was allowed.
Asset Reconstruction Co (India) Ltd. v. CIT AIR 2012 (NOC) 196 (Guj.)(High Court)
Wealth –Tax Act, 1957.
S. 34A: Refund – Interest – Self assessment tax – Assessee is entitled to interest on refund of excess payment of self-assessment tax.
Assessee paid more amount by way of self assessment tax. After giving effect to the order of Appellate Authorities the assessee was entitled for refund .The Assessing Officer denied the interest on refund on the aground that the tax was paid by assessee as self assessment tax and not in pursuance of notice under section 30 .On appeal to the High Court the court held that assessee having filed a revised return declaring correct net wealth which was ignored by the Assessing Officer and was finally accepted after appeal .therefore the assessee is entitled to interest on refund as provided under section 34A(4B) (a) on the excess payment of self assessment tax; accordingly claim of interest could not be denied on the ground that such interest is payable only if payment of tax is effected pursuant to a demand notice issued under section 30. ( A.Y.1991-92)
Nasser Zackeria & Ors v. CWT ( 2012) 249 CTR 303 (Ker.)(High Court)
Foreign Judgment-Information cannot be disclosed u/A 28 of DTAA in absence of strong connection between requested information & India’s tax laws
The Indian tax authority seized documents from an Indian national which were believed to indicate the existence of undeclared income deposited in a company’s bank accounts in Singapore. Pursuant to Article 28(1) of the India-Singapore DTAA, the Indian tax authority sent a request for information to its Singapore counterpart (the Comptroller of Income-tax). In support of the request, the Indian tax authority relied on unsigned transfer instructions allegedly issued by the Indian national as evidence that the Indian national remitted monies to the Singapore Company’s bank accounts. The Comptroller filed an application in the High Court u/s 105J of the Singapore Income-tax Act for an order requiring the bank to produce the company’s bank records. HELD dismissing the application:
(i) Article 28(1) of the DTAA provides that “the Contracting States shall exchange such information as is forseeeably relevant for carrying out the provisions of the DTAA or to the administration or enforcement of the domestic laws concerning taxes… imposed on behalf of the Contracting States …” S. 105J(3) of the ITA imposes two other conditions, namely that, (a) the making of the order is justified in the circumstances of the case; and (b) it is not contrary to the public interest for a copy of the document to be produced or that access to the information be given. These three conditions must be satisfied before the High Court will grant an order u/s 105J(2) of the ITA for access to the information requested or for a copy of the document containing the information requested to be given.
(ii) The first requirement of “foreseeable relevance” requires the Comptroller (on behalf of the requesting state) to show some clear and specific evidence that there is a connection between the information requested and the enforcement of the requesting state’s tax laws. Clear and specific evidence is necessary to prevent unwarranted disclosure of information that could not otherwise be sought from any party including the requested state. Spurious or frivolous requests for information are not acceded to and nor are “fishing expeditions” allowed. These procedures are not meant to frustrate or delay the information exchange process but are intended to provide a fair and independent assessment of the validity of requests.
(iii) On facts, the Indian tax authorities had relied on an unsigned transfer instruction as evidence that the Indian national remitted monies to the Singapore bank account and claimed that this was evidence of the connection between the Singapore company and the Indian national for the purposes of the investigations. The transfer instruction was a letter to Bank S to transfer monies to an account purportedly held by the Singapore Company with a bank in Dubai. There was no evidence that monies had been transferred to or from the account. There was also no evidence of any transaction between the Singapore Company and the Indian national. Accordingly, the Request and the supporting was not sufficiently clear and specific to say that the information requested would be foreseeably relevant to the enforcement of India’s tax laws and the ongoing investigations on the Indian national. Even if a tenuous connection between the Indian national and the Singapore Company could have been shown such that the requirement of foreseeable relevance was satisfied, consideration as to whether the application was justified is a process that envisages more evidence than presently adduced. This should include evidence of the use of the accounts for the purposes complained of in India.
Comptroller of Income Tax v AZP (Singapore)( High Court)www.itatonline.org.
Finance Act , 2011;
Circular no 2 of 2012 dated 22 May, 2012-Explnantory notes to the provisions of the Finance, Act, 2011 (2012) 343 ITR 157 (ST)
Finance Bill -2012.
Speech of the Finance Minster while introducing the Finance Bill 2012 for consideration (2012) 343 ITR (St) 37
Finance Bill, 2012 Notice of amendments ( 2012) 343 ITR (st) 40
Referencer – Articles
S. 4: Income- Resident- Unpleasant Vodafone Experience –A great lesson by R. Santhanam ( 2012) 250 CTR (Articles) 1
S.9(1)(vi): Controversy on taxability of cross –Border software payments by Rajan Vora and Hemen Cahndariya – 9( 2012) 44-A-BCAJ –April 9
S.11: Scope of the words “application of income” under section 11 of the Income-tax Act ,1961 by K.Kumar Advocate ( 2012) 343 ITR 25 (Journal)
S.12: Charitable Trust- AO not authorized to change Character ordinary of donation from “Corpus to contribution ” by Sandeep Bagmar R. ( 2012)206
Taxman 84 (Mag) (Article)
S. 40(a) (ia): A critical analysis the provisions of section 40(a) (ia) by Nrayan Jain (2012)AIFTPJ –January –P. 15
S.80GGB(80GGC): Donations to political parties –Whether serving the desired objects by T.N.Pandey ( 2012) 343 ITR 33 (Journal)
S.80 HHC: Income tax benefits on export incentives by R. Santhanam (2012) 249 CTR (Articles) 110
S. 92C: Transfer Pricing Regime in India : An over view by Ishan Bhatt & Muravne (2012) AIFTPJ –April – P. 41
S.143(2): Service of notice-Issue for consideration by Pradip Kapashi, Gautam Nayak, Ankit Virendra Sudha Shah -181 (2012) 44-A BCAJ –May -49
S.145: Does section 145 of the income -tax Act render section 5 (2) Otisose by Ramu Krishnamurthi (2012) 249 CTR (Articles)115
S. 147: Reopening of Assessment u/s 147 on “mere change of opinin” by Deepakh March (2012) AIFTP J – P. 30 S. 246A: How to draft appeal and procedure in Income tax Appeals before Commissioner (Appeals) and ITAT by Sachin Jain (2012) 206 Taxman 75 (Mag.)(Article)
S. 263: Scope of revision of orders by Commissioner by Pradip Kapashi, Gautam Nayak, Ankit Virendra Sudha Shah – 315 (2012) 44-A BCAJ –June -47
Finance Bill, 2012- Tax collection at source on cash purchase of gold –Whether unsustainable by Minu Agrwal (2012) 249 CTR (Articles) 49
Finance Bill, 2012- Some key tax incentives and reliefs by .M.S Prasad (2012) 249 CTR (Articles) 61
Finance Bill, 2012 – Discriminatory penalty for undisclosed income by Minu Agarwal (2012) 249 CTR (Articles) 72
Finance Bill 2012- Issue Shares at premium at your own peril by R.Raghunathan (2012) 249 CTR (Articles) 101 .
Finance Bill 2012- Service tax-Ignorance of tight “Recovery” will the service tax achieve the target – by Minu Agarwal ( 2012) 249 CTR (Articles) 108
Finance Bill 2012- Amendments to section 68 relating to share application moneys by R. Raghunathan ( 2012) 249 CTR (Articles) 77
Finance Bill 2012- Transfer pricing regulations hit domestic transactions by T.N.C.A. Rangarjan (2012) 249 CTR (Articles) 86
Finance Bill 2012- Benevolant provisions by T.C.A. Sangeetha (2012) 249 CTR (Articles) 91
Finance Bill 2012- Tax residency Certificate –A Hindrance in claiming tax treaty benefit by Prashant Apte ( 2012) 249 CTR (Articles) 97.
Finance Bill, 2012 – ( 2012) Income tax review-April-Special issue.
Appeal Before Tribunal, High Court and Supreme Court (2012) Income Tax Review- March- Special issue.
Chartered Accountants can practice in LLP format by P.N. Shah – 142 (2012) 44-A- BCAJ – May 10
Entertainment Industry- Special issue – Part- 1-Income tax review , May 2012
Entertainment Industry – Special ISSUE –Part-2-Income tax –review- June, 2012
First Appeal and Stay of demand (2012) Income tax review –January- Special Issue
GAR-Are safeguards adequate by Ajit Korde -278 (2012) 44-A BCAJ – June -P.10
International taxation- Recent global development in International taxation by Mayar B. Nayak, Tarun G.Singhal , Anil D.Doshi -61 (2012) 44-A-BCAJ –April 61
Revised schedule VI to the Companies Act, 1956 (2012) Income tax review-February-Special issue.
Tax Avoidance- How Vodafone has overruled Azadi Bachao Andolan decision by Taun Jain ( 2012) 250 CTR (Articles) 8
Vodafone Judgement and its implications by S.R. Wadawa (2012) AIFTJ –June- P.13
S. 80IB(10): Allotment of multiple flats in a Housing Project by Pradip Kapasi (2012) AIFTPJ- June P. 46
March of the professional-Speech:
“Role of Professionals in Tax manangement” by Honourable Mr. Justice Deepak Verma , Judge Supreme Court of India ( 2012) AIFTPJ-January –P. 8
Advocacy is the art of persuation by Honourable Mr .Justice R.Jasimbh Babu (Retd) (2012) AIFTPJ –Janauary- p.12
Qualities of a Judge and principle of Natural Jurtice by Honourable Mr .Justice R.V.Easwar (2012)AIFTPJ- March – P. 7
Art of writing Judgment by Honourable Shri D.Manmohan , Vice President ITAT, Mumbai-(2012) AIFTPJ –March –P. 19
“Globalisation –Emerging Opportunities in Corporate and Tax laws” by Honourable Mr .Justice Adarsh Kumar Goel, Chief Justice, Guwathai High Court (2012) AIFTPJ –April-P. 10
Recent trends in taxation –Challenges and opportunities –Role of Tax Practioners by Honourable Mr. Justice F.I. Rebello (Retd)(Former Chief Justice Allhabad High Court) ( 2012)AIFTJ –June –P. 8
Pendency of appeals- ITAT , as on 1-1-2012 ( 2012) AIFTPJ –January –P 51
Minutes of the meeting on 2nd March 2012- E-Court-( 2012) AIFTPJ –March –P.5
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