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Month: March 2015

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DATE: March 17, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: -
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CITATION:
While an amendment to overrule a judgement is not valid, it is permissible to retrospectively alter the character of the levy so as to save it from illegality

In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively

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DATE: March 23, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: -
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CITATION:
S. 37(1): Expenditure on an aborted capital project is revenue in nature & can be claimed as deduction in year of abandoning the project

Expenditure made for construction/acquisition of new facility subsequently abandoned at the work-in-progress stage is allowable as incurred wholly or exclusively for the purpose of assessee’s business. It is revenue expenditure as it does not result in the acquisition of an asset or an advantage of an enduring nature

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DATE: January 20, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2009-10
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CITATION:
S. 147: Reopening an assessment on the ground that there is need of an inquiry which may result in detection of an income escaping assessment is not valid

The important point is that even though reasons, as recorded, may not necessarily prove escapement of income at the stage of recording the reasons, such reasons must point out to an income escaping assessment and not merely need of an inquiry which may result in detection of an income escaping assessment

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DATE: February 25, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2002-03
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CITATION:
S. 147/151: Merely stating "Approved" is not sufficient sanction of CIT and renders reopening void

A simple reading of the provisions of Sec. 151 (1) with the proviso clearly show that no such notice shall be issued unless the Commissioner is satisfied on the reasons recorded by the AO that it is a fit case for the issue of notice which means that the satisfaction of the Commissioner is paramount for which the least that is expected from the Commissioner is application of mind and due diligence before according sanction to the reasons recorded by the AO

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DATE: March 11, 2015 (Date of pronouncement)
DATE: March 26, 2015 (Date of publication)
AY: 2004-05
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CITATION:
S. 68: Assessment proceedings under the Income Tax Act are not a game of hide and seek. If AO does not conduct proper inquiry, the obligation to do so is on the CIT(A) & ITAT

The AO here may have failed to discharge his obligation to conduct a proper inquiry to take the matter to logical conclusion. But CIT (Appeals), having noticed want of proper inquiry, could not have closed the chapter simply by allowing the appeal and deleting the additions made. It was also the obligation of the first appellate authority, as indeed of ITAT, to have ensured that effective inquiry was carried out, particularly in the face of the allegations of the Revenue that the account statements reveal a uniform pattern of cash deposits of equal amounts in the respective accounts preceding the transactions in question

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DATE: March 24, 2015 (Date of pronouncement)
DATE: March 25, 2015 (Date of publication)
AY: 1989-90, 1991-92
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CITATION:
S. 143(1A): As the object of s. 143 (1A) is to prevent tax evasion, it can apply only to tax evaders and not to honest assessees. The burden of proving that the assessee stated a lesser amount in the return in an attempt to evade tax is on the revenue

The object of Section 143 (1A) is the prevention of tax evasion. Read literally, both honest asessees and tax evaders are caught within its net. We feel that since the provision has the deterrent effect of preventing tax evasion, it should be made to apply only to tax evaders. Section 143 (1A) can only be invoked where it is found on facts that the lesser amount stated in the return filed by the assessee is a result of an attempt to evade tax lawfully payable by the assessee. The burden of proving that the assessee has so attempted to evade tax is on the revenue

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DATE: March 23, 2015 (Date of pronouncement)
DATE: March 24, 2015 (Date of publication)
AY: 1996-97
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CITATION:
S. 36(1)(iii)/ 37(1): Normally revenue expenditure incurred in a particular year has to be allowed in that year and if the assessee claims that expenditure in that year, the Department cannot deny the same. Fact that assessee has deferred the expenditure in the books of account is irrelevant. However, if the assessee himself wants to spread the expenditure over a period of ensuing years, it can be allowed only if the principle of 'Matching Concept' is satisfied

U/s 36(1)(iii) when the interest was actually incurred by the assessee, which follows the mercantile system of accounting, the assessee would be entitled to deduction of full amount in the assessment year in which it is paid. The High Court wrongly applied the “Matching Concept” to deny the deduction of the upfront interest payment in the first year.

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DATE: March 13, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2003-04
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CITATION:
S. 147/ 151: Sanction of CIT instead of JCIT renders reopening void. The error cannot be saved u/s 292BB

Since the approval was not obtained from the competent authority, notice issued under section 148 of the Act is void ab-initio and the assessment framed consequent thereto is not a valid assessment. The error is fatal and cannot be saved under section 292BB

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DATE: March 13, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: -
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CITATION:
S. 10A/10B: loss suffered in s. 10A/10B units cannot be set-off against the profits of taxable units

The Act of Parliament in consciously retaining this section in Chapter III indicates its intention that the nature of relief continues to be an exemption. Chapter VII deals with the incomes forming part of the total income on which no income-tax is payable. These are the incomes which are exempted from charge, but are included in the total income of the assessee. Parliament, despite being conversant with the implications of this Chapter, has consciously chosen to retain section 10A in Chapter III

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DATE: March 19, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2006-06 to 2008-09
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CITATION:
(i) Modification to client code of client is not necessarily a mala fide act, (ii) Disclosure made in a statement recorded at unearthly hours cannot be given credence, (iii) if a voluntary disclosure is retracted, the AO has to make addition on the basis of documentary evidence

If a statement is recorded at midnight, much credence cannot be given to such statement because the person would not be in a position to make any correct or conscious disclosure in a statement recorded at odd hours. When the statement made during the course of search has been retracted, then it is duty of the Assessing Officer to make further inquiries

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