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Month: October 2018

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DATE: October 1, 2018 (Date of pronouncement)
DATE: October 6, 2018 (Date of publication)
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CITATION:
S. 244: The Dept should bring some order and discipline to the aspect of granting refunds. All pending refund applications should be processed in the order in which they are received. It is the bounden duty of the Revenue to grant refunds generated on account of orders of higher forums and disburse the amount expeditiously. In the absence of a clear policy, the Courts may impose interest on the quantum of refund at such rates determined by the Court

We hope and trust that all pending refund applications are processed in the order in which they are received by the Respondents. If refunds are generated on account of orders of Higher Forums, Authorities and Courts, then, it is the bounden duty of the Revenue to grant such refund and disburse the amount expeditiously

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DATE: September 25, 2018 (Date of pronouncement)
DATE: October 6, 2018 (Date of publication)
AY: -
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CITATION:
S. 5, 9, 163, 166: A representative assessee represents all income of a non-resident accruing or arising in India directly or indirectly from any business connection in India. It is wrong to contend that the representative assessee is not liable for income which has directly arisen or accrued in India. It is also wrong that if the department chooses to make an assessment of the person resident outside India directly, it cannot assess the agent or representative assessee. The Dept has the choice of proceeding against either

In my opinion the Tribunal has made a complete misunderstanding of the law in entertaining the opinion that since the income made by the non- resident Cricket Boards were held to have directly arisen in India, this income could not be deemed to have arisen or accrued to the non-resident in India and the responsibility of the representative assessee was confined to accounting for income which had directly arisen or accrued in India

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DATE: October 1, 2018 (Date of pronouncement)
DATE: October 6, 2018 (Date of publication)
AY: 2009-10
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CITATION:
Tax Planning: The fact that the assessee bought and sold shares of groups concerns with a view to book loss and off-set the capital gains from another transaction does not mean that the loss can be treated as bogus if the documentation is in order. The loss cannot be treated as "speculation loss" under the Explanation to s. 73 because the shares were held as investments

The claim of assessee-company is supported by the documents on record. Therefore, Ld. CIT(A) rightly came to the finding that the assessee-company has genuinely entered into purchase and sale of shares and if any, loss have been suffered by the assessee-company, A.O. cannot treat the same as non-genuine due to extraneous considerations or irrelevant reasons in the assessment order

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DATE: September 24, 2018 (Date of pronouncement)
DATE: October 5, 2018 (Date of publication)
AY: -
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CITATION:
Strictures: Court is pained by the manner in which the authority has passed the order just ignoring the applicable Notification and throwing it to winds. The said order is nothing less than suffering from malice-in- facts as well as malice-in-law. The responsible officer deserves to pay the exemplary costs for passing such whimsical order from her personal resources or by deduction from salary

this Court is surprised and is pained by the manner in which the authority has passed the impugned reassessment order in the second round of assessment for the period 01.04.0211 to March 2012 just ignoring the applicable Notification and throwing it to winds. The said order is therefore nothing less than suffering from malice-in- facts as well as malice-in-law. Therefore, the said responsible officer deserves to pay the exemplary costs for passing such whimsical order and the writ petition deserves to be allowed

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DATE: October 3, 2018 (Date of pronouncement)
DATE: October 5, 2018 (Date of publication)
AY: 2007-08
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CITATION:
S. 2(22)(e) Deemed Dividend: Law explained on whether only a proportionate addition of deemed dividend can be made taking into consideration the percentage of the shareholding in the borrowing company in cases where (a) there is only one shareholder that has a shareholding in the lending company as well as in the borrowing company & (b) two or more shareholders are shareholders of the same lending company and the same borrowing company

There cannot be any proportionate addition of deemed dividend taking into consideration the percentage of the shareholding in the borrowing company. Section 2(22)(e) of the I. T. Act, 1961 does not postulate any such situation. This is especially as there is only one shareholder that has a shareholding in the lending company as well as in the borrowing company. Different considerations may arise if two or more shareholders are shareholders of the same lending company and the same borrowing company. In such a factual position it could possibly be argued that the addition ought to be made on a proportionate basis.

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DATE: September 24, 2018 (Date of pronouncement)
DATE: October 5, 2018 (Date of publication)
AY: 2009-10
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CITATION:
S. 260A: Transfer Pricing disputes with regard to exclusion and inclusion of comparables to determine Arm's Length Price (ALP) would not necessarily give rise to substantial questions of law except if there is perversity of finding or failure to adhere to the settled principles of law while determining comparables

This Court was rather surprised as to why the Revenue brings such Appeals to this court and regularly. The Courts in India seem to be taking a view that the Revenue has routinely brought such matters before this Court knowing fully well that the Transfer Pricing particularly with regard to exclusion and inclusion of certain comparables to determine Arm’s Length Price (ALP) would not necessarily give rise to purely legal questions or substantial questions of law

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DATE: August 9, 2018 (Date of pronouncement)
DATE: October 5, 2018 (Date of publication)
AY: 1997-98
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CITATION:
S. 271(1)(c) Penalty: Law explained on whether penalty can be imposed where (i) income is added or disallowance is made on estimate basis, (ii) books of account cannot be produced for reasons beyond control, (iii) disallowance is made as per retrospective insertion of s. 37(1) Explanation & (iv) allegation regarding concealment vs. furnishing inaccurate particulars is vague & uncertain

Where income is estimated or disallowance of expenses i made on estimate basis, there can be no penalty. The raison d’etre for non-imposition of penalty in both the situations is that there is a lack of precision as to concealment of income or furnishing of inaccurate particulars of income. It is only an estimation shorn of any certainty or accuracy

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