Year: 2008

Archive for 2008


COURT:
CORAM:
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: August 13, 2008 (Date of publication)
AY:
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CITATION:

It is not possible to accept the submission of the Revenue that once the AO comes to the conclusion that there is a breach of the mandate of Section 158BFA(1), then the penalty has to be mandatorily imposed. The terminology of section 158BFA makes it clear that the AO has a discretion in the matter of levy of penalty.

COURT:
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SECTION(S):
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CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: August 13, 2008 (Date of publication)
AY:
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CITATION:

Writ petitions were filed challenging the constitutional validity of the provisions of Section 245HA of the Income Tax Act, 1961 under which the petitioners’ applications before the Settlement Commission are to be treated as having abated on account of failure of the Settlement Commission to pass orders under Section 245D(4) of the Act on or before 31.03.2008. In view of the fact that the Supreme Court was seized of an identical issue, the petitions were disposed of with the direction that the parties would abide by the decision of the Supreme Court and in the meanwhile the assessment proceedings would be stayed.

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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: August 13, 2008 (Date of publication)
AY:
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CITATION:

Even prior to the amendment to s. 43(5) by the Finance Act 2005 w.e.f 1.4.2006, dealings in Futures & Options and other derivatives products cannot be treated as speculative transactions as they are special kind of transactions, not involving purchase and sale of shares and consequently the loss arising therefrom cannot be treated as a speculation loss.

COURT:
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SECTION(S):
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COUNSEL:
DATE: (Date of pronouncement)
DATE: August 12, 2008 (Date of publication)
AY:
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CITATION:

Where the department had not disputed that the expenditure was deductible in principle but was only disputing the year in which the deduction could be allowed HELD, castigating the department, that as the tax rates were the same in both years, the department should not fritter away its energies in raising questions as to the year of deductibility/taxability.

COURT:
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SECTION(S):
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DATE: (Date of pronouncement)
DATE: August 7, 2008 (Date of publication)
AY:
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CITATION:

A development agreement is one where the land-holder provides the land. The Builder puts up a building. Thereafter, the land owner and builder share the constructed area. The builder delivers the `owner’s share’ to the land-holder and retains the `builder’s share’. The land-holder sells/transfers undivided share/s in the land corresponding to the Builder’s share of the building to the builder or his nominees. The land-holder will have no say or control in the construction or have any say as to whom and at what cost the builder’s share of apartments are to be dealt with or disposed of. Such an agreement is not a “joint venture” in the legal sense. It is a contract for “services”.

COURT:
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SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: (Date of pronouncement)
DATE: August 7, 2008 (Date of publication)
AY:
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CITATION:

Against the judgement of the Supreme Court in UOI vs. Azadi Bachao Andolan 263 ITR 706, a review petition was filed. That petition was dismissed by a division bench of 2 judges. Upon that dismissal, a curative petition was filed. That curative petition has been dismissed by a bench of 5 judges.

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DATE: (Date of pronouncement)
DATE: August 2, 2008 (Date of publication)
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CITATION:

In ACIT vs. Rogini Garments 108 ITD 49, the Chennai Special Bench of the ITAT held that in view of s. 80-IA (9), relief under s. 80-IA had to be deducted from the profits and gains before computing relief u/s 80-HHC. M/s SCM Creations was an intervener in that case and a common judgement was passed. The Madras has reversed the judgement of the Special Bench and held that relief u/s 80-IA should not be deducted from profits and gains of business before computing relief u/s 80-HHC.

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DATE: (Date of pronouncement)
DATE: July 30, 2008 (Date of publication)
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CITATION:

U/s 245A(b), as amended by the Finance Act 2007 w.e.f. 1.6.2007, “pendency of proceedings for assessment” before the AO for one or more assessment years is a necessary condition for invoking the jurisdiction of the Settlement Commission. Held in that context by Five Member Bench of the ITSC

COURT:
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COUNSEL:
DATE: (Date of pronouncement)
DATE: July 30, 2008 (Date of publication)
AY:
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CITATION:

It is clear from the reading of Section 36 (1) (vii) and Circular No. 551 dated 23rd January, 1990 that if the assessee has written off the debt as bad debt, that would satisfy the purpose of the Section.

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DATE: (Date of pronouncement)
DATE: July 28, 2008 (Date of publication)
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CITATION:

It is a precondition to invoking s. 158BD that the AO must, in the course of s. 158BC proceedings, record satisfaction that the income belongs to the other person. In the absence of such finding, s. 158BD cannot be invoked. The satisfaction must be objective and not subjective. It must be recorded before jurisdiction is exercised. Even though no time limit is prescribed, there is an implied time limit for giving such finding i.e. the period prescribed in s. 158BE for framing the s. 158BC assessment