Digest of important case law – March 2012

No time to read through voluminous case reports?

S.2(1A):Agricultural income- Seeds-Company- Company supplying seeds to farmers under agreement income derived by company is not agricultural income.

 

The assessee company is in the business of cultivation, production and marketing of open-hybrid seeds both for the domestic and international market and entered in to agreement with the farmers for production of open –hybrid seeds for its own benefit or on behalf of its overseas principals. Assessee Company supplied the seeds, supervised the cultivation of seeds. After harvesting, the company purchased from farmers at fixed price. Assessee company has done the process of cleaning, grading and converted into certified seeds. Assessee has claimed entire income is exempt under section 10(1). Assessing Officer denied the exemption. On appeal before the Tribunal the tribunal opined that 10 percent of the net profit should be treated as business income and balance 90 percent of the net profit as agricultural income exempt from tax. On appeal to High Court by revenue the court held that the income is not agricultural income.( A.Y. 1998-99 to 2004-05)

 

CIT v. Namdhari Seeds P. Ltd ( 2012) 341 ITR 342 (Karn) (High court)      

 

S. 2(17):Company-Free Zone Entity(FZE)-Income of Vega cannot be assessed as taxable income in India under section 5 (1) of the Income-tax Act.(S.5(1))

 

The assessee company has made outward investment in Emirates of Ajman in the form of a Free Zone Entity (FZE) ‘ Vega’ in the Ajman Free Zone . The assessee is the sole shareholder having 100 percent shareholding. The income of the said entity was not an income of the assessee. The assessing Officer has held that as the said entity did not have a separate legal identity vis –a-vis its sole shareholder and for any non compliance the owner is responsible legally where as under Indian Companies Act ,1956, shareholders are not legally liable for any act of the company or its board of directors . On this basis the assessing Officer treated the income of the Vega as income taxable in India in the hands of the assessee under section 5(1). In appeal before the Tribunal the Tribunal held that as per memorandum of incorporation , Vega UAE was established with corporate entity and independent and separate  entity, merely because Amiri Decree (No (3) of 1998 specifies a situation where the owner will be treated  as personally responsible , it could not be said that Vega UAE was not a separate legal entity . On facts Vega UAE had to be accepted as a company within definition of section 2(17) , and therefore addition made by the assessing officer by holding that Vega UAE was a sole proprietorship concern of assessee was not sustainable hence the addition was deleted.(A.Y.2006-07)

 

AIA Engineering Ltd v. Addl .CIT ( 2012) 50 SOT 134 (Ahd) (Trib)     

 

S. 2(22)(e):Deemed dividend-Journal entries-Journal  entries could not be said to be credit entries hence can be assessed as deemed dividend.

 

The accounts of directors were credited with various amounts by passing journal entries. The Assessing Officer treated the same as deemed dividend. In appeal Commissioner (Appeals) held that the amount credited by journal entries could not be held to be deemed dividends in the hands of assessee. On appeal to the Tribunal by revenue, the Tribunal held that, it is not proper on the part of the Commissioner (Appeals) to hold that credit entries made in accounts of the assessee by the company would not fall under section 2(22)(e), only on the reasons that the credits were provided through journal entries, which may not be proper. An assessee may avail benefit either by direct transfer of funds or by conferring credit by passing journal entry or through any other lawful method and still such benefit would amount to deemed dividend. As the assessing authority Commissioner (Appeals)  have not undertaken any such enquiry or verification, the matter remitted back to the Assessing Officer to re examine the nature and character of the journal entries passed by the company.(A.Y.2008-09)

 

Asst.CIT v. Gurbinder Singh ( 2012) 50 SOT 263 (Chennai) (Trib)      

 

S.2(24)(iv):Income-Deemed income- Interest on interest free deposit-Interest on interest free loans availed by assessee from two companies in which she was director could not be treated as deemed income.

 

The assessee has availed interest free loans from two companies. Assessing Officer taxed the alleged interest as deemed benefit under section 2 (24)(iv) of the Act, which was confirmed by the Commissioner (Appeals). Tribunal deleted the addition. On appeal by revenue the court held that the interest on interest free loans availed by assessee from two companies in which she was a director could not be treated as her deemed income in terms of section 2 (24)(iv) of the Act. (A.Ys 1990-91 to 1995-96)

 

CIT v. Madhu Gupta ( 2012) 205 Taxman 303 (P&H) (High Court)

 

S.4: Income-Salary –Performance incentive-Appeal- Same income cannot be assessed twice, and  claim of assessee has to be allowed as mistake apparent on record , though the income was offered by assessee in the return of income .(S., 139.154, 246A).

 

The assessee while filing the return for the assessment year 2007-08 in addition to regular income also admitted a sum of Rs 4,28,750/- as performance incentive from his employer. The assessment was completed under section 143 (3), which were accepted by the assessee. In the assessment year 2008-09 after going through the TDS certificates, the assessee realized that the correct assessment year should be assessment year 2008-09 and offered for taxation in the Assessment year 2008-09, which was accepted by the tax department. The assessee filed an appeal to Commissioner (Appeals) for the assessment year 2007-08, which was dismissed by Commissioner in-limine as appeal is not maintainable. The assessee preferred an appeal before the Tribunal. As there was difference of opinion the matter was referred to third member. The third member held that the Act does not authorize levy of tax on same amount more than once, therefore, when amount of performance incentive had been assessed for assessment year 2008-09, assessment of same amount for impugned assessment year 2007-08 was a mistake apparent on records. Accordingly the claim of assessee was allowed. (A.Y 2007-08)

 

R. Natarajan v. Asstt.CIT( 2012) 135 ITD 55 (Chennai) (TM ) (Trib)      

 

S.9(1): Income deemed to accrue or arise in India –Liaison offices- Permanent establishment-Agents merely carried out concluding step in embodied in contracts, there  was no PE in India and hence the assessee could not be taxed in India in respect of profits arising from its activities in India.- DTAA-India-USA-Art.5.

 

The assessee, a foreign company incorporated in USA, was engaged in money transfer business worldwide. For the purpose of carrying on its business in India, the assessee entered into agreements with department of posts, commercial Banks, non financial companies, and tour operators and appointed them as agents. The agents had power to appoint sub agents/representatives. If a person in USA wanted to remit his money to a relative in India, he approach the assessee at USA and pays the money in dollars together with charges, thereupon he would be given a receipt by the assessee along with the computer generated unique Number(MTCN). The remitter would send the said unique number to his relative in India , who would approach the assessee’s agent in India. The Agent would feed the MTCN into the computer with the help of software and the main frame computer of the assessee in the USA and after matching the number and satisfying himself about the identity, of the recipient / claimant the money would be paid in India. For the services rendered by Agents they were paid commission at an agreed percentage, which was termed as base compensation agreement. The assessee also opened the liaison offices in India, at Mumbai, Bangalore and Gurgaon , with prior approval of RBI. For the assessment years 2002-03, 2003-04 and 2005-06 the assessee filed the return of income declaring the NIL income. The assessing officer held that the assessee the activities of liaison offices were not of preparatory and auxiliary in nature, as the assessee had the business connection in India the assessee is liable to tax under section 9(1) of the income -tax Act, to pay tax in India on the profits arising from its activities in India. The assessing Officer has also held that the work of liaison office is same as that of head office hence the liaison office constituted a permanent establishment within the meaning of article 5 of DTAA. On appeal the Commissioner(Appeals)following the order in assesses own case for the assessment year 2001-02, Western Union Financial Services Inc v. Asstt.DIT ( 2007) 104 ITD 34 (Delhi) , held that assessee had the business connection in India  for all the relevant years, but did not have PE in India , he accordingly set aside the levy of tax on assessee. On appeal by the revenue the Tribunal held that, the assessee did not have any PE in India therefore the assessee could not be taxed in India in respect of profits arising from its activities in India , for coming to the conclusion the Tribunal relied on following reasons (1) the assessee did not exercise any control over computer systems which were independently owned by agents and were not provided by assessee, (2) Activities of agents were not wholly or almost wholly devoted on behalf of assessee,(3) Agents  were not dependent agents of assessee (4) Agents were not party to contracts entered between remitter and assessee outside India (5) Agents merely carried out concluding step in arrangement embodied in contracts. Accordingly the revenue’s appeals were dismissed and cross objects were allowed. ( A.Y. 2002-03, 2003-04 & 2005-06)

 

DY.DIT v. Western India Financial Services Inc. ( 2012) 50 SOT 109(Delhi) (Trib)                   

 

S.9(1)(vi):Income deemed to accrue or arise in India-Software – Royalty- Payment received from distributors is to be treated as royalty- DTAA- India- Australia- Art 12.3

 

Applicant is a company incorporated in Australia engaged in business of providing software services, it has appointed Indian company as non –exclusive distributor for sale of its software products in India .The applicant submitted that right acquired by purchaser from sale is only to use copyrighted article and not right to use  copyright embedded in software and  therefore sum received by applicant from distributor from sale of software is nature of revenue  and cannot be classified as royalty as defined under section 9(1) (vi) or under Article 12 of Indo –Australian Treaty .The Authority for advance ruling held that whenever a software is assigned or licensed for use , there is involved an assignment of right to use embedded copyright in software or a license to use embedded an assignment of right , the intellectual property right in software , therefore it is not possible to divorce software from intellectual property right of creator of software embedded  therein, therefore the payments received by applicant from distributor for sale of software product is in nature of royalty within the meaning of section 9(1) (vi) and consideration paid for right to use a copy right from distributor is to be treated as royalty within the meaning of Article 12.

 

Citrix Systems Asia Pacific Pty Ltd , In re ( 2012) 205 Taxman 320 (AAR)

 

 

S.9(1)(vii):Income deemed to accrue or arise in India-Supply chain management-Services outside India-Fees for technical services- International services were rendered outside India provisions of section 9(1)(1), cannot be applicable.

 

The assessee is a foreign company incorporated under the laws of Hong Kong is engaged in the business of provisions of supply chain management , including the provisions of freight and forwarding and logistic services. It entered into a ‘Regional Transportation Services Agreement’ with an Indian Company for providing freight and logistics services to each other. The Assessing Officer held that the transportation fees received by assessee from Indian Company is taxable as ‘fees for technical services’ under section 9(1) (vii), as it was for services in the nature of ‘managerial ,technical or consultancy services’. The view of Assessing Officer was confirmed by the Commissioner (Appeals).On appeal, the Tribunal held that the role of assessee in entire transaction was to perform only destination services outside India by unloading and loading of consignment hence cannot be said to be managerial services. It has not rendered any consultancy services hence it cannot fall within the ambit of section 9(10) (vii).On the facts the assessee has rendered ‘International services’ outside India  the provisions of section 9 (1)(i) cannot be applied  hence cannot be taxed in India. (A.Y. 2006-07)

 

UPS SCS(Asia) Ltd v. Asst. DIT ( 2012) 50  SOT 268 (Mum) (Trib) .      

 

S. 10 (14):Exemption- Special allowance- Development officer- Reimbursement of expenses certified by LIC can be held taxable.

 

The assessee a development officer of LIC filed the return of income claiming deduction in respect of incentive bonus, conveyance allowance and additional conveyance allowance received from LIC . The Assessing Officer rejected the claim of assessee. On appeal to the Tribunal , the Tribunal held that where LIC certified that reimbursement of  expenses incurred in performance of duties of Office , of employment  the same has to be held as not taxable for the purpose of exemption under section 10 (14).( A.Ys 1996-97 and 1997-98)

 

Satish Gupta v.ITO ( 2012) 134 ITD 686 ( Delhi) (Trib)

 

S. 10(23C)(iv):Exemption- Charitable purpose-Notification-The notification issued does not itself tantamount to allowing the claim of exemption- Assessing officer is entitled to look in whether the conditions are satisfied- The assessee not maintained separate books of accounts profits from provision of facilities is taxable as business income.

 

During the financial year 2000-01 , the assessee had organized  an exhibition called “International  Textile Machinery  Exhibitions 2000” (ITME) and earned a profit of Rs 12,52,75,120/-. The assessee filed the return of income declaring nil income. The assessment  was completed  treating the income as business income. The assessment was annulled by the  Commissioner (Appeals) only on the ground that the notice was  served after 12 months from the end of the month in which return of income was furnished . The assessment was reopened thereafter. The reassessment was held to be valid by the Tribunal. In quantum  appeal the Commissioner (Appeals) decided the issue in favour of assessee. On appeal the  Tribunal held that  the Assessing officer has jurisdiction to look into  whether the conditions of section 10(23C)(iv) has been complied with . On the facts as the assessee has not maintained the separate books of accounts for providing facilities to the participants the assessee charged the profit make up , the profits from provisions of facilities are taxable as business income . The assessee is entitled exemption only on accumulations and income from organizing exhibitions. Accordingly the appeal of revenue was partly allowed.( A.Y. 1997-98, 2001-02)

 

Asst.D.I.T. v. India ITME Society ( 2012) 14 ITR 519 (Mum) (Trib)    

 

S. 10(33): Exemption- Units 64- Long tem loss-Long term loss on conversion of units under US 64 scheme in to 6.75 percent tax free bonds , it was not entitled to carry forward same for set off in subsequent assessment years.

 

The assessee is engaged in the business of manufacturing auto mobile tyres and tubes valves  etc. It had acquired certain units under the US 64 Scheme of Unit Trust of India , during the assessment years 1992-93 to 2001-02 . The said units were converted by UTI in to 6.75 tax free bonds in the previous year relevant assessment year 2004-05, with effect from 1-6-2003 . The assessee worked  out indexed cost of acquisition arrived at a long term capital loss and carry forward the same  for set off in subsequent years . The said claim was rejected by the Assessing Officer holding that conversion of US 64 into 6.75 percentage tax free bond did not amount to ‘transfer’ . On appeal the Commissioner (Appeals) held that when capital gains accruing on US 64 were specially exempted from taxation under section 10(33),in similar manner capital loss accruing on transfer of US 64 was also to be disallowed . He directed the Assessing Officer to exclude the entire loss from the computation of income. The Tribunal also confirmed the view of Commissioner (Appeals)  and held that the assessee is not entitled to carry forward  same for set off in subsequent years.(A.Y. 2004-05)

 

Schrader Duncan Ltd  v. Addl.CIT ( 2012) 50 SOT 68 (Mum) (Trib)      

 

S.10A:Exemption –Free trade zone- Setting off loss- Profit for purpose of deduction under section 10A,  should be allowed without setting off unabsorbed loss and depreciation. (S.72).

 

The assessee claimed the  exemption under section 10A, without setting  off of unabsorbed loss and depreciation , which was allowed by the Assessing Officer. The said order was revised under section 263. In an appeal by the assessee the revision order was quashed . On appeal by the revenue  the High court on merit  held that profit for purpose of deduction under section 10A  should be allowed without setting off of unabsorbed loss and depreciation and refrained the opinion as regards the jurisdiction under section 263. The order of Tribunal was confirmed the appeal of revenue was dismissed.(A.Y. 2002-03)

 

CIT v. Tyco Electronics Tools India (P) Ltd ( 2012) 205 Taxman 403 (Karn) (High Court)

 

S.10A: Exemption- Free trade zone- Conversion-Conversion of existing unit to STP unit , rejection of claim was held to be justified.

 

The assessee company has set up its industrial undertaking in the assessment year 1996-97 in domestic tariff area. The assessee received approval of STPI on 28-3-2000. The claim of deduction under section 10A was rejected by the assessing officer on the ground that there was conversion of the undertaking established in assessment year 1996-97 in to STPI unit and the ownership/beneficial interest had been transferred in the year under consideration in terms of section 10(A)(9),read with Explanation 1.On facts the Tribunal found that in the application for conversion of existing unit , the assessee had included infrastructure , staff and skilled labour etc of existing unit in STP unit which cannot conversion of a unit already set up. The Tribunal also held that beneficial share holdings were less at 47.70 % as on 31-3-2001 as against shares  held by them as on 31-3-2006.As the beneficial share holdings were less than 51 percent , provisions of section 10(A) (9) is applicable . Accordingly the Tribunal confirmed the order of assessing officer rejecting the claim under section 10A. (A.Y. 2002-03)

 

Infrasoft  Technologies Ltd ( 2012) 135 ITD 19/ 144TTJ 622 (Delhi) (Trib)     

 

S.10A: Exemption- Free trade zone- Depreciation-Deduction under section 10A/ 10B  has to be allowed only after deducting depreciation from profits of eligible business though such a claim for depreciation has not been raised by assessee. ( S.10B, 32 ).

 

The assessee claimed deduction under section 10A /10B without claiming depreciation. The Assessing Officer held that in the past the assessee has claimed the depreciation , accordingly  the Assessing Officer has allowed the depreciation , which was confirmed in appeal by Commissioner (Appeals). On   appeal to the Tribunal , the  Tribunal following the ratio of decision in Indian Rayon Corporation Ltd v. CIT ( 2003) 261 ITR 98 (Bom ) , up held the order passed by the Assessing Officer.(A.Y. 2006-07)

 

Siemens Information Systems Ltd v. Dy.CIT (2012) 135 ITD 196 (Mum) (Trib)

 

S.10AA:Exemption- Special Economic Zones- Manufacture- Precious and semi precious stones – Trading in re-export of imported goods is entitled to deduction.

 

The assessee firm was engaged in the business of  trading and manufacturing of precious and semi precious stones , diamond and studded gold  jewellery.It claimed deduction under section 10AA , in respect of profits from Surat  Unit .The Assessing Officer has disallowed the claim . The Commissioner (Appeals) allowed the claim  of the assessee. On appeal to the Tribunal by revenue , the Tribunal held that vide instruction no 1/2006 dated 24-3-2006  of Ministry of Commerce , it was clarified that trading unit can be set up in SEZ . Further , modification was made to it by another instruction dated 24-5-2006, in which it was made clear that deduction under section 10AA will be available in respect of trading in nature of re-export of imported goods. Since the said instruction modifying it was not yet withdrawn or Board has not issued any other instruction modifying it that the same would not be applicable for purpose of allowing under section 10AA, assessee is entitled deduction under section 10AA .The order of Commissioner(Appeals) is confirmed .(A.Y. 2008-09)

 

Dy. CIT v. Goenka Diamond & Jewellers Ltd ( 2012) 50 SOT 307 (Jaipur) (Trib)     

 

S.10B:Exemption-Software development-Computation-Exemption to be allowed separately in respect of each unit without setting off of losses of the units.

 

The assessee has five units which are developing the software. Four units suffered the loss and  one unit earned the profit .Assessee claimed the exemption under section 10B on the income of  profit making unit and carried forward the losses  of other units. Assessing Officer computed the gross total income after setting off the losses of other units against the profit making  unit. On appeal Commissioner (Appeals) confirmed the view of Assessing Officer. On appeal to Tribunal ,the Tribunal held that the assessee is entitled to deduction in respect of eligible units , while the loss of other units could not be set off against normal business income. i.e. Deduction under section 10B(4)  can be allowed in respect of each unit separately without setting off losses of other units , matter remanded for consideration.(A.Y.200-2003)

 

Aithent Technologies (P) Ltd v. ITO ( 2012) 144 TTJ 731 (Delhi) (Trib)

 

S.10B:Exemption- Export oriented undertaking-Interest on income tax refund- claimed netting off same against interest paid  netting off is not allowable as income tax refund has no connection with the business of assessee .

 

During the year the assessee earned interest during year on  income tax refund .  The assessee claimed the exemption under section 10B . The Assessing Officer disallowed the claim . On appeal the Commissioner (Appeals) allowed the claim . On appeal by revenue the Tribunal held that, since interest received by assessee from department on income tax refund had no connection with business of assessee no deduction could be allowed under section 10B . (A.Y. 2002-03)

 

Dy. CIT v. American Express (India) (P) Ltd ( 2012) 135 ITD 211 (Delhi) (Trib)       

 

S. 10B: Exempt incomes-Export oriented undertaking-Commercial production-  Extension of relief period available for existing units.

 

The assessee, a 100 % EOU, commenced commercial production in AY 1992-93 and was entitled to claim exemption u/s 10B(3) in any 5 consecutive assessment years falling within the period of 8 years. The assessee did not claim a deduction in the first 3 assessment years as there was a loss and claimed it for the first time in AY 1995-96. The eligibility period was upto AY 1999-2000. With effect from 1.4.1999, the period of exemption prescribed u/s 10B(3) of 5 years was substituted by 10 years. The assessee claimed that it was entitled for exemption u/s 10-B for a further period of two years i.e. AY 2000-01 and 2001-02. Thereafter, w.e.f. 1.4.2001, s. 10B was substituted by the Finance Act, 2000. The assessee’s claim was resisted by the AO & CIT (A) on the ground that the benefit applied only to “new undertakings” set up after that date and not to existing units. Held by the Special Bench:

 

(i) In AY 1999-2000, before expiry of the original time limit of five consecutive assessment years for which deduction was available as per then applicable law, the amended law became applicable and the assessee was accordingly eligible for deduction for the extended period of 10 years, as against 5 years allowed under the preamended law (DSL Software Ltd followed);

 

(ii) If there is only one decision of a non-jurisdictional Hon’ble High Court on the issue, it is binding on the Special Bench in view of the settled principle of judicial proprietary;

 

(iii) The department’s argument that the new units set up by the assessee was a mere “capacity extension” and not a separate industrial undertaking on the basis that the certificates granted by the EOU authorities was for enhanced capacity and not for setting up a new industrial undertaking is not acceptable because S. 10B does not stipulate the issue of a separate approval for each unit from the competent authority. The only requirement is that the undertaking should be approved (Saurashtra Cement & Chemical Industries (2003)260 ITR 181 (SC) distinguished)

 

(iv) On the question whether export incentives are “derived” from the undertaking and are eligible for deduction u/s 10B, s. 10B(4) stipulates a formula by apportioning the profits of the business of the undertaking in the ratio of turnover to the total turnover. Thus, though s. 10B(1) refers to profits “derived” by the EOU, the manner of determining such eligible profits has to be done as per the formula. S. 10B(4) does not require an assessee to establish a direct nexus with the business of the undertaking and once an income forms part of the business of the undertaking, the same would be included in the profits of the business of the undertaking and be eligible for deduction.

 

Maral Overseas Ltd v. ACIT (Indore) (SB)(Trib)www.itatonline.org

 

S.11:Exemption-Charitable or religious trust- Local Act-Fund received under section 33C of the local Act is not an income under section 2 (24), hence the trust is entitled to exemption. (S. 2 (24), 12).

 

The assessee is a statutory body in terms of the Bihar Agricultural Produce Markets , Act , 1960.The Assessing Officer rejected the claim  for exemption beyond 15 percent of its receipts under the provisions of section 12 of the Act . The Commissioner (Appeals) and Tribunal up held the order of  Assessing Officer. On appeal to High Court , the Court held that , the assessee is not engaged in the any commercial activity and no part of its activity was inspired by profit motive . The Court also held that Board’s fund received under section 33C of Local Act of was not an income under section 2 (24) . Accordingly the order of Tribunal set aside and assessee claim for exemption was allowed.   

 

Bihar Agricultural Produce Marketing Board v.CIT ( 2012) 205 Taxman 378 (Patna) (High Court)

 

S.14A:Business expenditure-Disallowance-Exempt income- Stock in trade-Disallowance under section 14A, does not apply to shares held as stock-in-trade. Disallowance on notional basis is invalid.(Rule 8D)

 

 The assessee availed of an interest-free loan of Rs.14 crores and paid brokerage of Rs.28 lakhs for purchasing shares. The shares were held as stock-in-trade and the assessee earned dividend of Rs. 46.67 lakhs thereon. The assessee claimed that no expenditure had been incurred to earn the dividend though the AO made a disallowance of Rs. 27.34 lakhs u/s 14A & Rule 8D. The Tribunal held that the brokerage on the loan, though incidental to the trading of shares, was indirectly incurred to earn dividend and had to be disallowed u/s 14A. On appeal by the assessee, Held  by the High Court allowing the appeal:

 

When no expenditure is incurred by the assessee in earning dividend income, notional expenditure cannot be disallowed u/s 14A. The assessee had not retained shares with the intention of earning dividend. The dividend income was incidental to the business of sale of shares, which remained unsold by the assessee. It cannot be said that the expenditure incurred in acquiring the shares had to be apportioned to the extent of dividend income and that should be a disallowance u/s 14A.

 

CCI Ltd v. JCIT (Karn)(High Court)www.itatonline.org

 

 S.14A:Business expenditure- Disallowance- Exempted income-In remand, disallowance under section 14A  cannot exceed original disallowance.

 

 The Assessing Officer  has  made a disallowance u/s 14A of Rs. 45 Lakhs on the ground that the assessee had not been able to segregate expenses relating to earning of dividend income and that borrowed funds had been used to fund the investments. The CIT (A) reduced the quantum of disallowance & the department accepted that. In the assessee’s appeal, the Tribunal totally deleted the disallowance. On appeal by the department, Held:

 

The Assessing Officer  should examine & compute the disallowance on the basis of what is laid down in Maxopp Investment L0t ( 2011 )203 TM 364 (Del). However, the quantum of disallowance, if any, to be made by the AO will not exceed the disallowance which was made in the original assessment order as reduced by the CIT(Appeals).

 

 CIT v. Machino Plastic Ltd (Delhi) (High Court)www.itatonline.org

 

S.14A:Business expenditure-Disallowance-  Exempted income-Management fee-Fund management fee-Key man insurance policy are taxable under section 28(vi) hence  expenditure incurred relating to same can not be disallowed under section 14A.

 

The Tribunal held that the proceeds of Keyman Insurance Policy are fully taxable under section 28(vi) of the Act , therefore ,the expenditure relating to the same can not come with in the ambit of section 14A ,therefore disallowance was not justified.  Fund management  fee paid  had no nexus with the earning od dividend disallowance under section 14A  can not be made. (A.Y. 2005-06)

 

Deputy CIT v. Noble Enclave & Towers (P) Ltd( 2012) 50 SOT 5 (Kol) (Trib)

 

S. 14A:Business expenditure- Disallowance-Exempted income- Rule 8D Disallowance Cannot Exceed Total Expenditure

 

In AY 2008-09, the assessee earned tax-free dividend income. Its’ total expenditure as per the P&L A/c was Rs. 49 lakhs. The AO applied Rule 8D and made a disallowance u/s 14A of Rs. 2.37 crores which was reduced by the CIT (A) to Rs. 1.78 crores. Before the Tribunal, the assessee claimed that even assuming that the entire expenditure had been incurred to earn the dividend, the disallowance u/s 14A & Rule 8D could not exceed the expenditure incurred. held accepting the plea:

 

U/s 14A read with Rule 8D, disallowance can be made for the expenditure incurred for earning of exempt income. From the assessee’s P&L A/c, it is evident that the total expenditure incurred was Rs. 49 lakhs only which was claimed as a deduction. The disallowance u/s 14A & Rule 8D cannot exceed the expenditure actually claimed by the assessee. Accordingly, the action of the AO & CIT (A) in making disallowance in excess of total expenditure debited to P&L A/c is unjustified.

 

Gillette Group India Pvt.Ltd. v. ACIT ( Delhi)(Trib)www.itatonline.org

 

S.22:Income from house property- Terrace-Society-Rent for letting out portion of terrace of its building is assessable as income from house and not as income from other sources (S.56)

 

The Assessee is a co-operative housing society , it has received the rent from Reliance Telecom to use of  portion of the terrace . It has shown the income from house property and claimed the deduction under section 24 of the income-tax Act. The assessing officer assessed the income as income from other sources. On appeal the commissioner (Appeals) also confirmed the assessment as income from other sources. On appeal to the Tribunal . The  Tribunal followed the order of Tribunal in Sharda Chamber Premises v.ITO ITA no 1234/Mum/2008 dt 1st Sept ,2009 (A.Y.2003-04) ,ITO v. Cuffe Parade Sainara Premises Co-Operative Society Ltd ITA no 7225/Mum/2005 dt 28th April ,2008 ( A.Y. 2002-03), S. Sohan Singh v.ITO (1986) 16 ITD 272 (Delhi) (Trib), and held that rent is assessable   as income from house property and assessee is entitled to deduction under section 24 of the Income-tax Act.(A.Y. 2004-05)

 

Matru Ashish Co-Operative Society Ltd v. ITO (2012) 144 TTJ 446 (Mum) (Trib)          

 

S.23(2):Income from House property-Annual value –Exemption-A HUF is “owner occupying house for own residence hence exemption is available.

 

 The assessee, a Hindu Undivided Family (HUF), claimed deduction u/s 23(2). The AO & CIT (A) took the view that as s. 23(2) applied to “a house or part of a house in the occupation of the owner for the purposes of his own residence“, a HUF was not eligible. The Tribunal took a contrary view and allowed the assessee’s claim. In view of the apparent conflict amongst various High Courts, the matter was referred to a Full Bench:

 

 S. 23 (2) confers benefit “Where the property consists of a house or part of a house which (a) is in the occupation of the owner for the purposes of his own residence …“. A Hindu Undivided Family is not a fictional entity. It is nothing but a group of individuals related to each other by blood relations, or in a certain manner. A Hindu Undivided Family can be seen being a family of a group of natural persons. There is no dispute that the said family can reside in the house, which belongs to Hindu Undivided Family. A family cannot consist of artificial persons. U/s. 13 of the General Clauses Act, the words in masculine gender shall be taken to include females and words in singular shall include plural and vice versa. Therefore, the word ‘owner’ would include ‘owners’ and the words ‘his own’ would include ‘their own’. There is nothing, therefore, in the words used in s. 23(2), which excludes application of such provision to HUF, which is a group of individuals related to each other.

 

CIT v. Hariprasad Bhojnagarwala ( 2012) 342 ITR 69 (Guj) (High Court) (FB)  

 

S.24(b):Income from house property-Deductions- Interest on borrowed funds-Lease rent-Interest paid on borrowed amount for paying no refundable premium for acquiring lease right is allowable as deduction. Lease rent is not allowable.

 

The assessee acquired lease rights in a property by paying non-refundable premium of sum and lease also monthly lease rent. The lease premium was paid by taking the interest bearing loan. The interest was claimed as deduction. The Assessing Officer has disallowed the interest which was also confirmed in appeal by Commissioner (Appeals) . On appeal to Tribunal the Tribunal held that as the premium is not refundable and the borrowed fund has been utilized for paying premium, the interest paid or payable on such borrowed capital is allowable under  section 24(b).As regards the lease rent expenses is concerned the Tribunal held that since there is no provision for allowing any other claim of expenditure other than standard deduction of 30% , the said expenditure cannot be allowed.(A.Y. 2001-02 to 2006-07)

 

Radio Components & Transistors Co Ltd v. ITO ( 2012) 50 SOT 237 (Mum) (Trib)     

 

S.27(iiib):Income from house property- Deemed owner- Lease-Lease period  was for ten years with option of further renewal , assessee will be treated as deemed owner.

 

The assessee acquired the lease rights by paying a premium for a period ten years , with the option to renewal further. The Assessing Officer treated the assessee as deemed owner and assessed the income as income from house property as against the said income was shown as income from other sources. In appeal the Commissioner (Appeals ) confirmed the view of Assessing Officer. On appeal to the Tribunal , the Tribunal held that , the lease period was for 10 years with option of further renewal. The assessee has let out the said premises for a period of five years with option of renewal . Since the assessee was in possession of property with full transferrable rights and had been receiving rent from sub –tenant in his own capacity being owner of property , assessee will be deemed owner under section 27(iiib) and the income was rightly assessed as income from house property. (A.Y. 2001-02 to 2006-07)

 

Radio Components & Transistors Co Ltd v. ITO ( 2012) 50 SOT 237 (Mum) (Trib)       

 

S.28(i):Business income-Amounts received for three agreement for rendering hospitality services are considered as  business income and it can be segregated separately.(S. 22)

 

The assessee is engaged in the hospitality business , it entered in to three separate agreements with TCS ,ie. For construction of hostel building , lease of hostel facilities , maintenance of amenities and facilities during the period of lease. The assessee claimed the entire receipts as business receipts . The assessing officer held that lease rent of hostel building to be assessed as income from house property . In appeal Commissioner (Appeals) confirmed the order of assessing officer. In an appeal to Tribunal , the Tribunal held that the three agreements had to be considered as part of one agreement undertaken by assessee with TCS for provision of hostel facilities ,therefore entire receipt to be considered as business income. (A.Y.2004-05 , 2006-07)

 

Kenton Leisure Services (P) Ltd v. Dy.CIT ( 2012) 135 ITD 10 (Cochin) (Trib)       

 

S. 28(i): Business loss- Construction business- Project completion-Method of accounting- Estimated expenditure for entire project cannot be accepted.(S.145)

 

Assessee is in the business of slum rehabilitation projects approved by Slum Rehabilitation Authority (SRA). The assessee was required to construct and provide free of cost tenements of size 225 sq.ft  to all slum dwellers and in consideration was entitled to TDR or right to construct  additional area over and above  normal permissible which the assessee could sell in open market . All the projects were initial stages of construction. The assessee estimated total revenue from entire project to be completed in future and also cost involved in the completion of project, including the contingencies etc. The resultant loss was claimed as deduction as per Accounting Standard -7. The Assessing Officer did not accept the claim of assessee. He allowed the losses only attributable to the WIP at the end  of the year and not losses of the entire projects which were yet to be completed . On appeal Commissioner (Appeals) also confirmed the order of Assessing Officer. On appeal to the Tribunal the Tribunal held that  there is no special provisions for computing of income for purpose taxation therefore the income of rehabilitation projects were required to be computed under normal provisions of Act. Income from current year accrue only on account of TDR released  and sold or in respect of any additional  space constructed for which the agreement for sale had been entered in to and only in respect of such accrued income if any expenditure had to be incurred in future , assessee would incur liability in current year its self. The Tribunal held that since no agreement for sale had been entered in to by assessee , method followed by assessee to show estimated income and expenses in respect of entire project most of which was yet to be executed could not be accepted as proper method to compute income under provisions of Act . Accordingly the assessee would be allowed losses only proportionate to work in progress at end of relevant year and claim of assessee for entire anticipated losses from entire project could not be accepted. The Tribunal confirmed the view of Assessing Officer.( A.Y 2000-01 to 2003-04)

 

Shivshahi  Punarvasan Prakalp Ltd v. ITO ( 2012) 135 ITD 51 (Mum) (Trib)          

 

S.30: Rent rates taxes repairs and insurance for buildings- Tenanted premises –Revenue expenditure- Cost of repairs of tenanted premises is allowable as revenue expenditure.

 

The assessee company is a tenant in a building occupying 5000 sq.ft . The building was declared by the municipal corporation to be unsafe for occupation. Under the terms of tenancy assessee assumed an obligation to contribute a sum of Rs.1.50 crores for the work of repairs and restoration of the structure .The Assessing Officer held that the assessee had secured rights for an area of 5000 sq f t. on payment of sum of Rs 1.50crores and the assessee became deemed ownership of the premises hence the expenditure is of capital in nature. On appeal Commissioner (Appeals) reversed the view of Assessing Officer, which was confirmed by the Tribunal. On appeal by revenue the Court held that the assessee obtained a commercial advantages of securing tenancy of an equivalent area of premises on the same rent as before. Since there was no acquisition of a capital asset and the occupation of the assessee continued in the character of a tenancy, the expenditure could not be regarded as being of a capital in nature. Accordingly the decision of Tribunal was confirmed and appeal of revenue was dismissed. (A.Y.2003-04)

 

CIT v. Talathi and Panthaky Associated (P) Ltd ( 2012) 205 Taxman 309 (Bom) (High Court)     

 

S.32: Depreciation- Intangible assets- Business information- Business information, contracts, records etc are “intangible assets” and  eligible for depreciation

 

 The assessee, vide slump sale agreement, acquired a transmission and distribution business as a going concern for a lump sum consideration of Rs.44.7 crores. The net tangible assets were valued at Rs.28.11 crores and the balance Rs. 16.58 crores was allocated by the transferee towards acquisition of bundle of “business and commercial rights” being business information; business records; contracts; employees etc, compendiously termed as “goodwill”. The assessee claimed that the said “business and commercial rights” were an “intangible asset” and eligible for depreciation u/s 32(1)(ii). The assessee’s claim was rejected by the AO, CIT(A) & Tribunal on the ground that depreciation was not allowable on “goodwill”. On appeal by the assessee, Held reversing the lower authorities:

 

S. 32(1)(ii) allows depreciation on “intangible assets” which are defined to mean “know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature”. Applying the principle of ejusdem generis, the expression “business or commercial rights of similar nature” need not answer the description of “knowhow, patents, trademarks, licenses or franchises” but must be of similar nature as the specified assets. The specified intangible assets are not of the same kind and are clearly distinct from one another. The nature of “business or commercial rights” cannot be restricted to only the aforesaid six categories of assets but can be of the same genus in which all the aforesaid six assets fall and form part of the tool of trade of an assessee facilitating smooth carrying on of the business. The intangible assets, viz., business claims; business information; business records; contracts; employees; and knowhow, are all assets, which are invaluable and result in carrying on the transmission and distribution business by the assessee without any interruption. These intangible assets are comparable to a license to carry out the existing transmission and distribution business of the transferor. In the absence of the aforesaid intangible assets, the assessee would have had to commence business from scratch and go through the gestation period whereas by acquiring the aforesaid business rights along with the tangible assets, the assessee got an up and running business. Accordingly, the intangible assets acquired under slump sale agreement were in the nature of “business or commercial rights of similar nature” and eligible for depreciation u/s 32(1)(ii) (Techno Shares 327 ITR 323 (SC) followed) (Q whether goodwill per se is eligible for depreciation u/s 32(1)(ii) left open).

 

Areva T&D India Ltd v. DCIT (Delhi)( High Court)www.itatonline.org

 

S. 32: Depreciation-Discarded –Machinery- Machineries discarded due to obsolescence and which have not been used in manufacturing of product  depreciation is not allowable.

 

The assessee had been claiming depreciation on block of assets . The Assessing Officer held that two machineries  had been discarded and that once the assets had been discarded treating them as obsolete , the same should have been considered for reduction of the block for computing the depreciation on the same . The Assessing Officer has added back the  depreciation in the total income. On appeal the Commissioner (Appeals)  conformed the order of Assessing Officer. On appeal to the Tribunal , the Tribunal allowed the claim  of assessee. On appeal by revenue the Court held that depreciation is not allowable in respect of machineries which have been discarded due to obsolescence and which have not been used in manufacturing of product. Order of tribunal reversed. ( A.Y. 1997-98)

 

CIT v. Luwa India Ltd ( 2012) 205 Taxman 342 (Karn) (High Court)

 

S.32:Depreciation-BSE Card- Corporatization and demutualization- Commercial rights-Depreciation is not allowable as the cost of acquisition of such right was taken as nil hence no cost on acquisition.

 

The Assessing Officer disallowed the depreciation on BSE card and Foreign Exchange Dealers Association of India (FEDAI) . On appeal the Commissioner (Appeals) allowed the depreciation following the judgment of Supreme Court in Techno shares & Stocks Ltd (2010) 327 ITR 323 (SC).The Tribunal held that after corporatization of the Bombay Stock Exchange Membership is no more in existence and the Card holders has been issued 10000 shares of BSE of face value of Rs 1 each . As per the scheme of de-mutualisation, the card ceased to exist and in lieu of membership , the card holder has been issued 10000 shares of BSEL. As per section 55(2)(ab), the cost of the shares allotted to the card  holders of a recognized stock exchange under a scheme of demutualization  shall be the cost of acquisition of his original membership of exchange .As per the proviso to the said clause , the cost of the capital asset being trading or clearing rights of the recognized Stock Exchange acquired buy as a share holder on allotment of equity or under the scheme of demutualisation or corporatization shall be deemed to be nil. Since the shares are not a depreciable asset and also independent from rights to trade , no depreciation is allowable . When the membership card ceased to exist and in lieu of card , new capital asset came in to existence being 1000 shares as well as right to trade and  clearing in the Stock Exchange and the acquisition cost of trade and clearing has been explicitly provided as nil by the statute then the entire cost of Membership as stands in the books of account of the assessee would be treated as cost of acquisition of 10000 shares which is not depreciable asset .As per clause (3) Explanation 5 to section 32 (2) if any shortfall of amount between the value realized and written down value of a particular asset , the same is allowable. On the facts the assessee received the shares in lieu of BSE Membership Card then whatever written down value was standing in the books of account of the assessee has been received by assessee by way of shares and therefore , no shortfall arises to be claimed as depreciation. Hence depreciation is not allowable. The Tribunal followed the ratio of Sino Securities (P) Ltd v.ITO (2012) 134 ITD 321 (Mum) (Trib). As regard the FEDAI, no facts are allowable, the matter was set aside to the Assessing Officer. (A.Y.2006-07)

 

Sunidi Consultancy Services Ltd v. Dy.CIT ( 2012) 50 SOT 223 (Mum)(Trib)

 

S. 32: Depreciation- Non compete fee- Intangible asset- Depreciation is allowable in respect of non compete fee- Stools, tables stainless steel racks, trolley  etc, which were required for laboratory purpose are considered as plant and machinery  and eligible depreciation as plant and machinery.

 

The assessee has paid the non –compete fee and claimed the said expenses as revenue in nature .The claim was disallowed by the Assessing Officer and confirmed by Commissioner (Appeals). In appeal before the Tribunal , the Tribunal held that the expenditure on non-compete being the capital in nature , it being intangible asset , the assessee will be eligible for depreciation. The assess is engaged in manufacturing of chemical and vaccines and for the purpose of assesses laboratory , it purchased  stools, tables, stainless steel racks trolley etc and claimed the depreciation as part of plant and machinery. The Assessing Officer treated the said assets as furniture and allowed depreciation as applicable to furniture which was confirmed by Commissioner (Appeals) . On appeal to Tribunal , the Tribunal held that since said stools , tables , stainless steel racks etc were required for laboratory purpose i.e. for purpose of production or processing of chemical tests , in laboratory premises leading to production of stock they must be categorized as plant and machinery and entitled to depreciation accordingly. (A.Y.2001-02)

 

Serum Institute of India Ltd v. Addl CIT ( 2012) 135 ITD 69 (Pune) (Trib)

 

S. 32(2):Depreciation- Carry forward and set off-Unabsorbed depreciation automatically becomes the depreciation of the subsequent year and would be allowed to be carried forward . ( S. 139 (3).

 

Assessee  has filed  a return  under section 139 (1) declaring nil income which was accepted under section 143 (1). The notice was issued under section 148 In the reassessment proceedings the assesses income very high, however after giving effect to the order of Tribunal the assessed income was loss. Assessee moved application under section 154 to carry forward the loss determined in pursuance of return filed under section 139(3). The assessing officer rejected the application . In an appeal before the Commissioner (Appeals) , the Commissioner (Appeals) held that loss can not be carried forward , however the unabsorbed depreciation  was allowed to be carried forward .In appeal by the revenue , the Tribunal held that  unabsorbed  depreciation automatically becomes the depreciation of the subsequent year and the assessee would be entitled to carry forward and set off notwithstanding the fact the return showing nil income was filed and the loss was determined in pursuance to return filed under section 139 (3). (A.Y. 1999-2000)

 

Asst  CIT v. Mehsana Distric Co-Operative Milk Producers Union Ltd( 2012) 67 DTR 470/ 145 TTJ 107 (Ahd) (Trib)

 

Mehsana Distric Co-operative Milk Producers Union Ltd (2012) 67 DTR 470/145TTJ 107 (Ahd) (Trib)    

 

S. 36(1)(iii):Business expenditure-Interest on borrowed capital- Mercantile system of accounting- When the interest free fund is available with assessee , no disallowance can be made in respect of interest free advances made to sister concern. Deduction of interest  could not be denied on the ground that transaction was not recorded in books of account.(S.145 )

 

The assessee had given interest free advances to its sister concern. The Assessing Officer disallowed the claim under section 36(1)(iii) by applying 15 % rate of interest, which was confirmed by Commissioner (Appeals). Tribunal following the judgment  in CIT v. Reliance  Utility & Power Ltd (2009) 313 ITR 340 (Bom) (High Court),  held that if assessee has interest free funds as well as interest bearing funds , then the presumption would be that investments were made from interest free funds . When interest free funds available at disposal of assessee were far in excess of interest free loans advanced to sister concerns , no disallowance could be made under section 36(1) (iii) on account of said interest free advances .Assessee which followed the mercantile system of accounting claimed deduction of interest for which no accounting entries were made . The Assessing Officer disallowed the assessee’s claim , which was confirmed in appeal by Commissioner (Appeals). On appeal to Tribunal , the Tribunal held that in mercantile system of accounting deduction is allowed on accrual of liability and it is not material whether the amount is paid or not whether or not recorded in the books of account .As the liability is accrued to the assessee , which is duly acknowledged by assessee deduction of interest could not be denied on the ground that transaction was not recorded in books of account . Accordingly the claim of assessee was allowed.(A.Y 2005-06)

 

Pranik Shipping & Services Ltd ( 2012) 135 ITD 233 (Mum) (Trib).

 

S. 37(1): Business expenditure- Corporate  membership-Club-Subscription for obtaining corporate membership in club is allowable as revenue expenditure.

 

Assessing Officer has held that the subscription of corporate membership as capital expenditure. Tribunal held the said expenditure  as revenue in nature . On appeal by revenue the High Court affirmed the  view of tribunal and held allowable as revenue expenditure.(A.Y. 1999-2000)

 

CIT v. Infosys Technologies Ltd ( 2012) 205 Taxman 250 (Karn) (High Court)

 

S.37(1):Business expenditure-Royalty payment held to be revenue expenditure-Foreign tour expenditure of wife of president to attend budget conference held to be allowable business expenditure.

 

Assessee has entered in to an agreement with Luwa Switzerland in respect of obtaining new technology and know how and licence fee at at 5 percent on sales of cost of standard , as per approval  given by the Reserve Bank of India. The Assessing Officer held that the expenditure of capital in nature. The first appellate authority and Tribunal held that the expenditure is of revenue in nature . On appeal by revenue the Court held that since licence was granted as per agreement subject to payment of royalty to make use of know how- and more over  royalty payable was depending upon sales made and export the Tribunal was justified in treating the same as revenue expenditure. The  president of the assessee company had gone abroad with his wife to attend budget conference . The assessee claimed deduction of said expenditure . The Assessing Officer held that the  assessee had failed to prove that accompanying of the wife of the president on a foreign tour was for business purpose , and therefore, assessee was not entitled to deduction , which was confirmed by Commissioner (Appeals) .On appeal to the Tribunal , the Tribunal held that tour of the president  was for the purpose of business obligation and therefore , assessee was entitled to claim deduction . On appeal by revenue the High Court confirmed the view of Tribunal (A.Y. 1997-98)

 

CIT v. Luwa India Ltd ( 2012) 205 Taxman 342 (Karn) (High Court)     

 

S. 37(1):Business expenditure- Commission-Managing director – Commission to CMD for personal guarantee may be treated as “ploy to divert funds” hence not allowable.

 

The assessee claimed a deduction for the “guarantee commission” of Rs. 1.15 crores that it paid to its Chairman Shri. Vijay Mallya. The AO & CIT (A) disallowed the claim on the ground that the so-called guarantee was a mere signature on a document, not backed by specific assets and that as the commission payment exceeded Mr. Mallya’s net wealth of Rs. 70 lakhs, it was an “innovative method of diverting income from the company” and an “unwarranted benefit” to Vijay Mallya. However, the Tribunal allowed the claim. On appeal by the department, held reversing the Tribunal:

 

 None of the bankers had obtained details of the assets & liabilities of Vijay Mallya in India or abroad. He stood guarantor in respect of total borrowings of Rs. 115 crores and received commission of Rs. 1.15 crores even though his net worth was hardly Rs. 70.47 lakhs. Also, as he was a NRI, the permission of the RBI ought to have been taken which was not done. The assessee paid the MD commission “on the pretext” of paying guarantee commission and it is a “clear case” of “a ploy to divert the income of the companies under his management”. The payment was characterized as commission to overcome the RBI’s directions, the provisions of s. 309 of the Companies Act and was not a lawful payment and could not be allowed as a deduction u/s 37(1).

 

CIT v. United Breweries Ltd (Karn)( High Court)www.itatonline.org

 

S. 37(1):Business expenditure-Transport business- Violation of traffic rules-Expenses incurred for violation of traffic rules being  for infraction of law  is not allowable deduction.

 

The assessee incurred expenditure for violating traffic rules by entering town on no entry times, one way traffic violation  etc . The Tribunal held that the expenses being penalty/fine for violation of traffic rules and payment being for infraction of law explanation to section 37 of the Act is applicable and deduction is not allowable under section 37. ( A.Y.2005-06)

 

Kranti Road Transport (P) Ltd v. Asst.CIT (2012) 50 SOT 15 (Visakhapatnam )(Trib)   

 

S.37(1):Business expenditure- Son of Director-Higher foreign  education-Foreign educational expenses of son of director who was not an employee is not allowable.

 

The Assessing Officer disallowed the foreign educational expenses of son of Director who was not an employee  holding that the same is personal in nature. On appeal Commissioner (Appeals) , concurred with the findings of Assessing Officer. On further appeal to Tribunal the Tribunal held that the expenditure on higher education of son director cannot be said to be wholly and exclusively for the purpose of the business of the assessee and without any extra commercial circumstances , accordingly the disallowance was confirmed.(A.Y.2006-07)

 

Sunidi Consultancy Services Ltd v. Dy.CIT ( 2012) 50 SOT 223 (Mum) (Trib) 

 

S.37(1):Business expenditure- Interest unpaid purchase consideration-Interest paid on unpaid sale consideration allowable as business expenditure and provisions of section 43B  cannot be applicable.( S. 36 (1)(iii), 43B)

 

The assessee is engaged in the business of manufacturing of polyester film. It was allotted plot of land by GIDC . As per terms of allotment the assessee was required to pay the purchase consideration of the land in installments with interest . For the year under consideration the assessee had paid the sum of Rs 99.97 lakhs as interest to GIDC and the same was claimed as business expenditure. According to the Assessing Officer the expenditure was capital in nature. On appeal the Commissioner (Appeals) held that the same is allowable as revenue in nature. On appeal by revenue the revenue contended that the since interest was not paid the same is not allowable under section 43B.The Tribunal held that the interest is allowable under section 37(1) and since the interest payable is in respect of un paid sale consideration provisions of section 43B can not be applicable as the expenditure is allowable under section 37(1) and not under section 36(1)(iii).(A.Y.2004-05)

 

Dy.CIT v. MTAZ Poly films Ltd (March-2012-P 22-654(2012) 43B BCAJ.(Trib)

 

S.40(a)(ia):Amounts not deductible-Deduction at source-Contractor-Sub-contractor-As provisions of section 194(C)(2) has no application to the facts  disallowance can not be made by invoking section 40(a)(ia).( S.194C(2).

 

The assessee , an individual is an  management consultant and is engaged in conceptualizing  and organizing conferences and seminars in the field of management. The assessee received sponsorship from various sponsors, for which tax was deducted at source. Assessee had made payments for printing, stationery charges of auditorium advertisement charges etc. Assessing Officer held that as the turnover of assessee exceeded the prescribed he should have the sponsors in respect of payment made to the assessee. The Tribunal held that the arrangement entered with the sponsor does not amount to the assessee having undertaken to work of organizing the conference .Just because the assessee is subjected to tax deducted under section 194C (1),  and the assessee claimed credit in respect of taxes deducted by the persons making the payments to the assessee , rightly or wrongly or due  to correct application of law or by abundant  caution , this claim can not prejudice the stand of assessee that the provisions of section 194(C )(2)  is not applicable. On the facts the Tribunal held that section 194(2) has no application therefore provision of section 40(a)(ia) do not come in to play. The Tribunal held that provisions of section 194C (1), can not be applicable to the relevant period  because it is only as a result of the amendment of Finance Act , 2008 ,  w. e.f. 1st June , 2008,that individuals were covered under section 194C(1).( A.Y. 2005-06)

 

Raju L.Bhatia (Dr) v. JCIT ( 2012) 134 ITD 615 (Mum) (Trib)                 

 

S.40(a)(ia):Amounts not deductible- Deduction at source- Contractor- Sub –contractor- Where lorries and trucks are hired for its own use TDS is not required to be deducted hence amount can not be disallowed.(S.194C).

 

On the facts of the case the assessee has hired the Trucks /lorries for transporting of the consignment booked by it under its own supervision and control with all responsibility and liabilities .Therefore hiring of Truck and lorries can not be called to be work as per definition given in explanation 3 of section 194C of the Act, hence the assessee is not liable to deduct tax at source.( A.Y.2005-06)

 

Kranti Road Transport (P) Ltd v. Asst.CIT (2012) 50 SOT 15 (Visakhapatnam )(Trib)    

 

S.40(a)(ia):Amounts not deductible- Deduction at source-Commissioner-Brokerage- Derivatives are securities therefore tax at source is not deductible.(S.194H)

 

Tribunal held that as per definition of derivative in section 2 sub section (ac) read with Section 2 of sub section (h) (ia) the derivates are securities and therefore covered by the exception provided in Explanation (1) to Section 194H. hence the brokerage paid can not be disallowed under section 40(a) (ia).(A.Y. 2005-06)

 

Deputy CIT v.Noble Enclave & Towers (P) Ltd (2005) 50 SOT 5 (kol) (Trib)

 

S.40(a)(ia):Amounts not deductible-Professional fees-MICR clearing charges are reimbursement expenses assessee not liable to deduct tax at source under section 194J- Service charges paid in connection with rented house tax required to be deducted under section 194I.

 

Assessee is engaged in banking business and a sub member of clearing house of another bank. Bhagyodaya Co-operative Bank Ltd was a clearing house agent of assessee. Assessee paid certain amount for rendering the services of clearing agent without deduction of tax at source. Assessee claimed that its MICR clearing charges were recovered by clearing house from Bhagyodaya Co-operative Bank Ltd  and while making paid of said clearing charges Bhagyodya Co-operative Bank deducted tax at source and in support letter was filed .The Tribunal held that the payment of clearance charges were recovered from the assessee as reimbursement by assessee ,the assessee is not required to deduct at source under section 194J , accordingly disallowances were deleted. The Tribunal held that service charges to in connection with part of fixtures of a rented house, being part of rent , as the tax was not deducted under section 194I , disallowance under section 40(a)(ia)is justified.( A.Y. 2007-07)  

 

Karnavati Co-operative Bank Ltd v. Dy.CIT ( 2012) 134 ITD 486/ 144 TTJ 769 (Ahd) (Trib)

 

S.40(a)(ia):Amounts not deductible-Reimbursement of expenses – Reimbursement simplicitor provisions of section 194J cannot be applicable hence no disallowance can be made.(S.194J)

 

The assessee is firm of solicitors and advocates had made payments to various lawyers for their professional services , but had not deducted tax at source under section 194J. Assessing Officer disallowed the such payments by applying the provisions of section 40(a) (ia).The Commissioner (Appeals) also confirmed the disallowance . On appeal to Tribunal it was contended that the amounts paid to in respect of lawyers were reimbursed from clients  and no deduction was claimed in respect of said payments . The Tribunal held that as the payments to outside lawyers were not claimed as deduction , no disallowance can be made under section 40(a) (ia) of the income-tax Act. The matter was set aside to verify the facts .(A.Y. 2006-07)

 

Sharma Kajaria & Co v. Dy.CIT ( 2012) 50  SOT 282 (kol) (Trib)

 

 

S.40(a)(ia):Amounts not deductible-Deduction at source- Interest-Payment of disputed amount with interest as per court order provisions of section 194A is not applicable , the interest  cannot be disallowed.(S.194A )

 

The assessee claimed as deduction  in respect of interest paid to one of creditor for failure to the amount as per the court  decree settling the dispute. The assessee claimed the interest as deduction. The Assessing Officer has disallowed the interest on the ground that as  tax was not deducted  at source under section 194A, the provision of section 40(a) (ia) is applicable. On appeal the Commissioner( Appeals) also confirmed the disallowance. On appeal the Tribunal following  the order of High Court in Madhusudhan Shrikrishna v. Emkay Exports (2010) 188 Taxman 195 (Bom) (High Court) , the Tribunal  held that  the assessee had no obligation to deduct tax at source in respect of interest  paid to creditor as per court order.( A.Y. 2005-06)

 

Akber Abdul Ali v. ACIT ( 2012) March P. 25 -657 (2012) 43-B-BCAJ(Trib)

 

 

S.40(a)(ia):Amounts not deductible-Deduction at source-Interest other than interest on securities-The assessee has neither credited the interest nor paid in relevant year, therefore as mandate of section 194A could not be attracted no disallowance can be made . (S.194A).

 

The assessee has claimed  the deduction of interest expenditure for which no accounting entry was passed in books of account . The said claim was disallowed on the ground that the assessee has not deducted the tax at source under section 194A,which was confirmed in appeal by Commissioner (Appeals) . On appeal to Tribunal, the Tribunal held that section 194A  comes in to play only when either amount is credited in books of account or interest is paid  whichever is earlier . On facts the assessee had neither credited in interest in books of account nor the interest was paid in relevant year , therefore the mandate of section 194A could not be attracted , therefore no disallowance could be made under section 40(a)(ia). (A.Y. 2005-06)

 

Pranik Shipping & Services Ltd ( 2012) 135 ITD 233 (Mum) (Trib).     

 

S. 40(a)(ia):Amounts not deductible-Deduction  at source- Non-jurisdictional High Court prevails over special bench- TDS paid before due date of filing of return-  Amendment by FA 2010 w.e.f 1.4.2010 is retrospective

 

 

 

For AY 2005-06, the AO made a disallowance of expenditure incurred by the assessee on the ground that the assessee had made the TDS payments u/s 194C after the end of the year. Before the Tribunal, the assessee claimed that as the TDS had been paid before the due date of filing the ROI, no disallowance could be made as per s. 40(a)(ia) amended by the FA 2010 w.e.f. 1.4.2010. The assessee relied on Virgin Creations and claimed that it had to be followed in preference to the contrary ruling of the Special Bench in Bharati Shipyard Ltd(2011) 132 ITD 53 (Mum). Held by the Tribunal:

 

In Bharati Shipyard Ltd the Special Bench held that the amendment to s. 40(a)(ia) by the FA 2010 w.e.f. 1.4.2010 could not be held to be retrospective from AY 2005-2006 on the ground that the amendment was not remedial and curative in nature. However, the Kolkata Bench had taken a contrary view in Virgin Creations vs. ITO and held that amendment by the FA 2010 was retrospective w.e.f. 1.4.2005. The view of the Kolkata Bench has been approved by the Calcutta High Court in CIT vs. Virgin Creations. The question as to whether a verdict of the Special Bench should be followed or that of a non-jurisdictional High Court should be followed is answered in Tej International (P) Ltd 69 TTJ (Del) 650 wherein it was held that in the hierarchical judicial system that we have in India, the wisdom of the court below has to yield to the higher wisdom of the Court above, and therefore, once an authority higher than this Tribunal has expressed its esteemed views on a an issue, normally, the decision of the higher judicial authority is to be followed. It was also held that the fact that the judgment of the higher judicial forum is from a non-jurisdictional High court does not alter this position. Consequently, Virgin Creations is followed and it is held that the amendment to s. 40(a)(ia) is retrospective from 1.4.2005 and any payment of TDS on or before the due date for filing the ROI is sufficient.

 

Piyush C. Mehta v. ACIT (Mum)(Trib)www.itatonline.org

 

S.40(a)(ia):Amounts not deductible- Deduction at source-Precedent- Non-jurisdictional High Court prevails over special bench- TDS paid before due date of filing of return-  Amendment by FA 2010 w.e.f 1.4.2010 is retrospective

 

For AY 2005-06, the AO disallowed Rs. 47.26 lakhs u/s 40(a)(ia) on the ground that the TDS had not been paid in time. The assessee claimed that the amendment to s. 40(a)(ia) by the Finance Act 2010 w.e.f. 1.4.2010 to provide that no disallowance could be made if the TDS was paid on or before the due date specified in s. 139(1) was retrospective in nature as held in CIT vs. Virgin Creations and that the contrary ruling of the Special Bench in Bharti Shipyard Ltd vs. DCIT(2011) 132 ITD 53 (Mum) could not be followed.  held by the Tribunal:

 

In Virgin Creations the Calcutta High Court has passed a reasoned order and held that the amendment to s. 40(a)(ia) is retrospective in nature. The binding nature of the decision of the Special Bench when a lone decision of non-jurisdictional High Court is available on the very same issue was examined in the Third Member decision in Kanel Oil & Export Ltd(2009) 121 ITD 596 where it was held that where there is only a judgement of the non-jurisdictional High Court prevails over an order of the Special Bench even though it is from the jurisdictional Bench (of the Tribunal). As the Calcutta High Court’s decision is the lone one on the issue whether s. 40(a)(ia) is retrospective, it has to be followed in preference to the decision of the Special Bench of the Tribunal in Bharti Shipyard Ltd. Consequently, amounts in respect of which TDS is paid on or before the due date of filing the ROI is eligible for deduction.

 

Rajamahendri Shipping & Oil Field Services Ltd v. ACIT (Vizag)(Trib)www.iatonline.org

 

S.40(a)(ia):Amounts not deductible- Deduction at source- While interest paid by PE of foreign bank to H.O. is deductible in hands of PE, same interest is not taxable in hands of H.O.

 

The assessee, a Japanese bank, carrying on business through a PE in India, paid interest of Rs. 5 crores to its H.O. & other branches. The assessee, in computing the profits assessable to tax in India, claimed that while the interest received by the H.O. & other branches from the PE was not chargeable to tax in India on the principle that the PE & H.O. were one & the same entity, the PE was entitled to claim a deduction under Article 7 of the DTAA. The AO held that the PE & the H.O. were deemed to be separate entities and that while the interest received by the H.O. from the PE was taxable under Article 11, deduction for that interest could not be allowed to the PE u/s 40(a)(i) as it had failed to deduct TDS. The CIT (A) followed the verdict of the Special Bench in ABN Amro Bank(2005) 98 TTJ 295 (Kol) (partly affirmed in ABN AMRO(2011) 198 TM 376 and held that the interest was neither chargeable to tax nor allowable as a deduction. On appeal to the Tribunal, the matter was referred to a 5 Member Special Bench held by the Special Bench:

 

(i) On the question whether the interest paid by the PE to the H.O. is deductible, while such interest is not deductible under the Act because the payer & payee are the same person, Article 7(2) and 7(3) of the DTAA & its Protocol makes it clear that for the purpose of computing the profits attributable to the PE in India, the PE is to be treated as a distinct and separate entity which is dealing wholly independently with the general enterprise of which it is a part and deduction has to be allowed for, inter alia, interest on moneys lent by the PE of a bank to its H.O.

 

(ii) On the question of taxability of the interest received by the H.O. from the PE, such interest is not taxable under the Act as both are, under the Act, the same person and not separate entities & one cannot make profit out of himself. The fiction created in Article 7(2) of the DTAA treating the PE as separate and independent entity does not extend to Article 11. Also, the interest paid by the PE is not interest paid in respect of debt claims forming part of the assets of the PE so as to attract Article 11(6). The DTAA, even assuming that it does create a liability, cannot be applied u/s 90(2) as it is contrary to the Act and less favourable to the assessee (Q whether the interest paid by the PE should be netted off against the interest received left open).

 

Sumitomo Mitsui Banking Corporation v .DDIT (Mum)(SB)(5Members)(Trib)www.itatonline.org

 

S. 40(a)(ia):Amounts not deductible- Deduction at source-Paid-Payable- TDS Disallowance applies only to amounts “payable” as at 31st March and not to amounts already “paid” during the year

 

The assessee incurred brokerage expenses of Rs.38.75 lakhs and commission of Rs.2.43 lakhs without deducting TDS. Of this only Rs. 1.78 lakhs was payable and the rest was paid. The AO disallowed the entire expenditure u/s 40(a)(ia). Before the CIT (A), it was argued that disallowance u/s 40(a)(ia) could be made only of the amount “payable” and not of that which had already been “paid” though it was rejected. On appeal to the Tribunal, the matter was referred to the Special Bench. HELD by the Special Bench:

 

Per the majority (S. V. Mehrotra, AM, dissenting):

 

When s. 40(a)(ia) was proposed to be inserted by the Finance Bill 2004, it applied to any “amount credited or paid”. However, when enacted by the Finance Act 2004, it applied only to “amount payable”. The words “credited/ paid” and “payable” have different connotations and the latter refers to an amount which is unpaid. The change in language between the Bill and the Act is conscious and with a purpose. The legislative intent is clear that only the outstanding amount or the provision for expense (and not the amount already paid) is liable for disallowance if TDS is not deducted. Also, s. 40(a)(ia) creates a legal fiction by virtue of which even genuine and admissible expenses can be disallowed for want of TDS. A legal fiction has to be limited to the area for which it is created. Consequently, s. 40(a)(ia) can apply only to expenditure which is “payable” as of 31st March and does not apply to expenditure which has been already paid during the year.

 

Per S. V. Mehrotra, AM:

 

 The object of s. 40(a)(ia) is to ensure that the TDS provisions are scrupulously implemented without any default. If a narrow interpretation is assigned to the term ‘payable’, the object with which s. 40(a)(ia) was inserted would be frustrated. The Legislature could have never intended that only amounts payable at the end of the year should be disallowed but not the amounts paid during the year. The reason the words “credited” or “paid” were dropped was because they came within the ambit of the term “payable” and would have been superfluous. As s. 40(a) is applicable irrespective of the method of accounting followed by an assessee, the term ‘payable’ covered the entire accrued liability. Also s. 40(a)(ia) is to be interpreted harmoniously with the TDS provisions as its operation depends solely on the provisions contained under Chapter XVII-B & it provides for one of the consequences of non-deduction of tax. In the backdrop of the TDS provisions, the term “payable” means the amount “payable” “on which tax was deductible at source under Chapter XVII-B”. Consequently, s. 40(a)(ia) applies to all expenditure which is actually paid and which is payable as at the end of the year.

 

Merilyn Shipping & Transports v. ACIT (Visakhapatnam) (SB)(Trib)www.itatonline.org.

 

S. 40A(3):Expenses or payments not deductible-Cash payment-Exceptional circumstances-   Financial crises may be “exceptional or unavoidable circumstance” for cash payment.

 

The assessee made payments exceeding Rs. 10,000 in cash and claimed that a disallowance u/s 40A(3) read with Rule 6DD(j) & Circular No.220 dated 31.05.1997 could not be made as a payment by cheque etc was not possible due to “exceptional or unavoidable circumstances” etc. The Tribunal rejected the assessee’s claim on the ground that that the assessee’s explanation that the payees would not accept cheques as they had been dishonoured on earlier occasions was “fantastic and fanciful” as in such case the assessee could have deposited cash and obtained bank drafts. It was also held that the assessee had not explained how it obtained the cash for making the payments & if the amounts were borrowed, there was a violation of s.269SS. On appeal by the assessee to the High Court, held reversing the Tribunal:

 

S. 40A (3) & Rule 6 DD (j) have been incorporated in the Act to check the incurring of bogus and fictitious expenses to non existing parties. In the present case, there is no dispute on the identity of the payee and genuineness of the transaction. The only question is whether the assessee has been able to establish “exceptional or unavoidable circumstances” why the payment made in cash. The assessee was not doing well in its business and was facing liquidity and financial crunch. The assessee’s explanation that payments were made in cash as preparation of a bank draft or issue of cheque would have resulted in a missed opportunity or failure of a good business deal with third parties is acceptable because there were earlier cases of bounced cheques and when a party is facing liquidity problem, it can get difficult as third parties are reluctant to accept cheques and insist on cash payments. Arranging funds is also a problem and not easy. Also, the cash was obtained from a known party and the AO had not made any addition on that score. Accordingly, disallowance u/s 40A(3) was not justified.

 

Basu Distributor Pvt Ltd v. ACIT (Delhi)( High Court)www.itatonline.org

 

 

 

S. 41(1):Profits chargeable to tax-Remission or cessation of trading liability-Unpaid liability- Unpaid liability cannot be added as assessee’s income.

 

During the assessment proceedings the assessing Officer noticed that there were several advances which had not been repaid till date. As the assessee has not filed the confirmation letters the assessing officer treated the said amounts as income of assessee. In appeal the Commissioner (Appeals) held that the credit balances remained static for past several years as the assessee has not proved that the liability of creditor subsisted, he confirmed the order of Assessing Officer. On further appeal to Tribunal the Tribunal deleted the addition. On appeal by revenue following the judgment of supreme Court in CIT v. Sugauli Sugar works (P) Ltd (1999) 236 ITR 518 (SC), merely because the amount remained un paid for a sufficient long time and it’s required of revenue authorities to show that liability to pay creditor has ceased or remitted by creditors, accordingly the order of Tribunal confirmed. (A.Y. 2005-06)

 

CIT v. Hotline Electronics Ltd ( 2012) 205 Taxman 245 (Delhi) (High Court)

 

S.43(1):Actual cost-Definition-Depreciation- Written down value-Though Expl. 10 to s. 43(1) does not apply to loan waiver, treatment in books of reducing amount waived from asset cost means that WDV has to be reduced.

 

The assessee received a loan of Rs. 5,277 crores from the Steel Development Fund in earlier years. In AY 2000-01, a substantial part of the loan was waived. In its books of account, the assessee reduced the cost of the assets by the amount of loan waived and claimed depreciation on the reduced figure. However, the assessee claimed that for income-tax purposes, the waiver did not impact the WDV of the assets and that depreciation had to be allowed on the original figure. The AO, CIT (A) & Tribunal (included in file) decided the issue against the assessee by relying on Explanation 10 to s. 43(1) inserted by the F (No. 2) Act 1998 w.e.f. 1.4.1999. On further appeal to the Tribunal, Held reframing the question:

 

 Explanation 10 to s. 43(1) does not cover the case of waiver of the loan. It covers only the grant of a subsidy or reimbursement by whatever name called. Though the assessee’s case may not fall under Explanation 10, the waiver of the loan amounted to the meeting of a portion of the cost of the assets under the main provision of s. 43(1) because of the treatment given by the assessee in its books of account in reducing the cost/WDV of the assets by the amount of the loans waived. The real nature of a transaction can be understood by reference to the contemporaneous act of the parties, which throws considerable light on their true intention and their understanding of the transaction. The assessee understood the receipt of the loans as having been given towards meeting a part of the cost of the assets and the waiver cannot have a different effect on such intention. PJ Chemicals Ltd ( 1994) 210 ITR 830 (SC), which holds, (pre Explanation 10) that a subsidy given as an incentive for industrial growth cannot be reduced from the cost of the assets under s. 43(1), does not apply to the facts.

 

Steel Authority of India Ltd v. CIT (Delhi) ( High Court)www.itatonline.org

 

S.43(5):Speculative transactions- Derivative-Hedging-Derivative instruments if not used as an hedging it will be assessed as profits and gains of business and hence section 43(5) is applicable.

 

The assessee is a Private Ltd company which is in the business of corporate finance and share dealing. During  relevant year the assessee claimed loss on account of derivative trade. The Assessing Officer has  treated the said loss as speculative applying the provisions of section 43(5) (d).In appeal the Commissioner (Appeals) held that the activity being investment the loss is not speculative in nature. On appeal by revenue the Tribunal held that the  assessee was involved in  day to day operation of share trading activity, the Assessing Officer is justified in treating the loss as speculative . (A.Y. 2005-06)

 

Deputy CIT v.Noble Enclave & Towers (P) Ltd (2005) 50 SOT 5 (kol) (Trib)

 

S.43D:Business income-Public financial institutions-Interest-Interest accrued on NPA cannot be added as income of assessee.

 

Assessee following mercantile system of accounting ,it had nether credited in profit and loss account nor offered for taxation amount of interest that had accrued on non-performing assets (NPA) .Assessing Officer held that assessee was required  to credit accrued interest on NPA to its profit and loss account  as per section 43D.He accordingly  added accrued interest on NPA to income of assessee. The Tribunal held that in view of clear provisions of section 43D , Assessing Officer was wrong in adding accrued interest on NPA to income of assessee. Addition was deleted.    

 

Karnavati Co-operative Bank Ltd v. Dy.CIT ( 2012) 134 ITD 486/ 144 TTJ 769 (Ahd) (Trib)

 

S.44BB:Business of exploration, of mineral oils-Non-resident –Income deemed to accrue or arise in India -Technical services –Royalties -DTAA-India –Singapore –Article 5.5., 12.3(b), 12.4(a).(S. 90, 9(1)(vii)

 

The applicant is a Singapore company . It was awarded a sub contract by L&T to execute the work of installation and construction services for Single Point Mooring in the waters of Mumbai High South field . For undertaking the construction work, vessels were mobilized to India . The assessee contended that contract with L& T is in connection with prospecting for  or extraction or production of mineral oil and would constitute PE only if the services or facilities are provided for a period of more than 183 days in the fiscal year under article 5.5 of the DTAA  and for computation of the period of 183 days shall be from the time the vessels of the applicant gain port clearance till the time the said vessels leave the shores of India. As the applicant would not have PE in India and no liability is attracted under section 44BB .The Authority for advance ruling held that the agreement with L&T falls within the ambit of section 44BB as the same deals with a case the assessee is ‘engaged in the business of providing services or facilities in connection with , or supplying plant and machinery on hire used  or to be used , in the prospecting for or extraction or production of mineral oils’. The applicant has provided the services more than 183 days during the fiscal year , hence the applicant has a PE in India in terms of article 5.5 of the DTAA and falls within the ambit of section 44BB and not under as fees for technical services under the Act or under 12 of the DTAA regarding this contract. Even if part of income falls under ‘Royalties’ or ‘Fees for Technical Services’ there is no scope to assess such receipts under these heads, once it is held that the income is from its oil exploration and production activities as envisaged under section 44BB, the applicant has to first exercise the option to get its income computed under section 44B(3). In view of above the entire mobilization demobilization revenue received by the applicant would be taxable in India . Payment received for installation and demobilization relates to use of equipment for undertaking installation work and falls under the definition of royalty –Installation is ancillary and subsidiary to use of equipment or enjoyment of right for such use ,payment for installation would fall under definition of “fees for technical services” – DTAA-India –Singapore-Art 12.3(b), 12.4(a).

 

Global Industries Asia Pacific Pte Ltd , In re ( 2012) 205 Taxman 273 (AAR)    

 

S.44BB:Business of exploration ,of mineral oils-Non-resident –Income deemed to accrue or arise in India -Technical services-DTAA-India- France-Activities undertaken by assessee providing geological and geophysical services for exploring mining potential derived in India from execution of projects  would fall under the definition of fees for technical services hence assessable under section 115A and not under section 44BB(1) (S. 90, 9(1)(vii), 115A )

 

The assessee is a company , a tax resident of France , during the relevant assessment year the  assessee is engaged in the business of geological and geological services for exploring mining potential. The assessee filed the return of income   under section 44B (1). The assessee opted for domestic law and not under Indo –France DTAA as the domestic law  under section 90(2) which is more  beneficial to  the assessee. The Assessing Officer has applied the domestic law , however held that income  of assessee is taxable under section 9(1)(vii) and not under section 44BB(1) ,he accordingly computed the income at 10% by applying the provisions of section 115A. The DRP also concurred with the view of Assessing Officer. On appeal to the Tribunal  held that (1) Activities under taken by assessee of seismic survey , processing of 3D seismic data and submission of report in desired media as also providing services of personnel skill will clearly fall under definition of ‘fees for technical services’ covered in first limb of Explanation 2 to section 9 (1)(vii) hence decided in favour of revenue .(ii) Provisions of section 44BB(1) conveys no meaning independent of section, in case of non –resident where  provisions of section 42, or section 44D OR 44DA or section 115A or section 293A are applicable for purpose of computing profits or gains or any income referred to those sections , proviso to section 44BB(1) will be applicable and provisions of section 44BB(1)  will not be applicable (iii) . With effect from 1-4-2004 fee for technical services , which is not connected with permanent establishment of business or fixed place of profession in  India , will be taxable under section 115A(1)(b).(iv). Activities undertaken by assessee i.e. providing geological and geophysical services for exploring projects for prospecting mineral oil deposits in India form execution of exploration projects for prospecting mineral oil deposits in the off shore waters under four contracts with ONGC and one contract with ENI .UK, would fall under definition of ‘fees for technical services’ covered in first limb of Explanation  2 to section 9(1)(vii). (v). Since receipts were not connected with PE in India fee for technical services rendered in connection with prospecting for or extraction or production of mineral oil would be assessable under section 115A , thus the provisions of section 44BB(1) would not apply , accordingly the issue  is decided in favour of revenue.(A.Y.2007-08)

 

CGG  Veritas Services , SA v. Addl DIT ( 2012) 50 SOT 335 (Delhi) (Trib)

 

 

 

S.45:Capital gains-Business income- Investment in shares-Profit from sale of mutual funds and shares is assessable as capital gains and not as business income.(S.28(i))

 

The assessee is an Insurance agent. He declared the profit on sale of mutual funds and shares as business income. The Assessing Officer assessed the profit as business income, which was confirmed by Commissioner (Appeals). On appeal the Tribunal held that the profit is assessable as short term capital gains, considering the following factors (a), The average length of holding of shares was more than 125 days (b)he had not borrowed any amount from outsider on loan to investment in shares (c) he had only deployed funds with a long term view as amounts  were only borrowed from family members having liquid capital available with them (d) the primary business activity pursued by the assessee was that of an insurance agent (e), no intraday transactions in shares and securities ,there was no trading in future and options (f) percentage of gains of less than 30 days was only 5.13 percent . Accordingly the Tribunal held that the gain is assessable as short term capital gains.(A.Y.2006-07)

 

Dev Ashok Karvat v. Dy.CIT (2012) 50 SOT 167 (Mum) (Trib)

 

     

 

S.48: Capital gains- Cost of acquisition- Computation- Amount paid to tenant for vacating the premises is allowable as deduction while computing the capital gains.

 

Assessee has sold the cinema hall and it paid certain sum to tenant who was running canteen in said cinema hall to vacate the said premises. The amount paid was set off against sale consideration of capital gains. The Assessing Officer disallowed the claim. In an appeal the Commissioner (Appeals) and Tribunal allowed the claim. On appeal to Tribunal by revenue, the Court held that the amount paid was wholly and exclusively connected  and linked with transfer of sale. Accordingly the view of Tribunal was confirmed. The Court also up held the view of Tribunal as regards the  scrap valuation of building  which has applied the thumb rule for computing the gain under section 48 of the Act.(A.Y. 2007-08)

 

CIT v. Eagle Theatres ( 2012) 205 Taxman 449 (Delhi) (High Court)    

 

S.49: Capital gains- Cos t with reference to certain modes of acquisition-Inheritance-Property acquired by inheritance before 1-4-1981 , cost of acquisition would be as on 1-4-1981.

 

Assessee has inherited a share in the property on death of his wife , who died on 28-11-1994. The said property was acquired by his wife by inheritance form her mother on 28-4-1984 and she was owner  of property before 1-4-1981 . Since the property was inherited the assessee took the cost of acquisition as fair market value of the asst as on 1-4-1981  and claimed  indexation from 1-4-1981. The Assessing Officer held that the assessee had became owner of the property only on death of his wife i.e. 28-11-1994, hence the cost of acquisition was worked by applying the indexation from the year 1994 as against 1981. On appeal the Commissioner (Appeals) held that the property was inherited and the cost of acquisition should be as on 1-4-1981. On appeal be revenue, the Tribunal also confirmed the view of Commissioner (Appeals)  and dismissed the appeal of revenue.(A.Y. 2008-09)

 

ITO v. Sapna Dimri (2012) 50 SOT 96 (Delhi) (Trib)        

 

S.49: Capital gains- Cost with reference to certain modes of acquisition-Inheritance-Property acquired by inheritance -Cost of acquisition would be as on 1-4-1981.(S. 42A, 48 )

 

The assessee became the owner of the property on 6-4-1990, by transfer, on account of execution of his father’s will . The said property was built by his father in 1965 and was expanded in 1971 . The assessee took cost of acquisition at Rs 2.54 Lakhs being the fair value of property as on 1-4-1981, and accordingly  worked out cost of acquisition . The Assessing Officer held that the assessee became owner of property on 6-4-1990 , therefore indexation will be available only from 6-4-1990. In an appeal before Commissioner (Appeals), the Commissioner (Appeals) allowed the appeal of assessee. On further appeal to Tribunal, the Tribunal also confirmed the view of Commissioner (Appeals) and held that the indexation has to be allowed from 1-4-1981.(A.Y 2007-08)

 

Asstt. CIT v. Suresh Verma ( 2012) 135 ITD 102 (Delhi) (Trib)

 

 

 

S.50B: Capital gains- Slump sale- Transfer of unit-Undertaking transferred was a unit as a whole ,itemized earmarking  would not be possible the transaction would be a slump sale and hence not liable to capital gains.(S.45)

 

Assessee company is engaged in the manufacture and sale of liquor. It entered in to an agreement to sell the undertaking business together with its assets and liabilities as a running business/going concern on as is-where-is basis in respect of the business of manufacturing , blending , bottling , distribution, storage and sale of Indian Made Foreign Liquor for a consideration  of Rs 1.38 crores. The assessee claimed that the said consideration is not chargeable to tax. Assessing Officer worked out the written down value of fixed assets at Rs 3.48 crores and the difference of Rs 6.90 crores was held to be taxable under the head capital gains. In an appeal the commissioner (Appeals) confirmed the view of Assessing Officer. Tribunal has allowed the appeal of the assessee, the Tribunal held that it was case of slump sale and hence profits arising on transfer of undertaking would not be chargeable to capital gains tax. On appeal by revenue the Court held that since the assessee has sold the unit as a whole and business of said undertaking consisted not only of tangible items but other intangibles such as rights in intellectual property, licenses and manpower, in such a situation itemized earmarking would not be possible therefore the transaction involved a slump sale hence the order of  Tribunal was affirmed and revenues appeal was dismissed.( A.Y. 1994-95)

 

CIT v. Polychem Ltd ( 2012) 205 Taxman 465 /68 DTR 139 (2012) Vol.114(2)(Bom.L.R. 0824( Bom) (High Court)        

 

S. 50B:Capital gains- Slump sale  -Slump sale need not be a sale all slump transfers are covered, hence lump sum consideration is taxable.  (S.2 (42c), 2(47))

 

The assessee entered into a scheme of arrangement u/s 391-394 of the Companies Act, 1956 pursuant to which it transferred its project finance business and asset based financing business to another company for a lumpsum consideration of Rs. 375 lakhs. The assessee filed a settlement application in which it claimed that the said consideration on transfer of the project finance business was not chargeable to tax as it was not by way of “sale” and there was no cost of acquisition for the same. However, the Settlement Commission held that the said transfer, though effected through an order of the Court was a “slump sale” and was chargeable to tax u/s 50B. The assessee filed a Writ Petition to challenge the Settlement Commission’s order. Held  by the High Court dismissing the Petition:

 

The assessee’s argument that a “transfer” under a scheme of arrangement u/s 391-394 of the Companies Act is not a “slump sale” for purposes of s. 50B is not acceptable. S. 50B was inserted to supercede decisions which held that a slump sale (i.e. transfer of business as a going concern) was not taxable for want of cost of acquisition. The term ‘slump sale’ is defined in s. 2(42C) to mean the “transfer” of an undertaking as a result of a “sale”. The use of the word ‘transfer’ in s. 2(42C) is significant and any type of “transfer” which is in nature of slump sale i.e. when lump sum consideration is paid without values being assigned to individual assets and liabilities is covered by s. 2(42C) and s. 50B. This is the reasonable, plausible and natural grammatical meaning which has to be given to the definition of ‘slump sale’. It is not correct to construe the word ‘slump sale’ to mean that it applies to ‘sale’ in a narrow sense and as an antithesis to the word ‘transfer’ as used in s. 2(47). The intention of the legislature was to plug in the gap and tax slump sales and not to leave them out of the tax net. The term ‘slump sale’ has been used in the enactment to describe a particular and specific type of transfers called slump sales. The use of the word ‘sale’ in the term ‘slump sale’ does not narrow down the concept of ‘transfer’ as defined and understood in s. 2(47). All transfers in the nature of ‘sales’ i.e. ‘slump sales’ are covered by s. 2 (42C).

 

SREI Infrastructure Finance Ltd v. ITSC (Delhi) (High Court)www.itatonline.org

 

S. 50C: Capital gains- Full value of consideration-Stock in trade-Land and building—Stamp duty valuation-Provision of section 50C, does not apply to land & building held as ‘stock-in-trade’

 

The assessee sold a plot of land for Rs. 79 lakhs. The AO held that the said plot was a capital asset and that the gains had to be computed in accordance with s. 50C. The CIT (A) & Tribunal upheld the assessee’s claim that as the said plot was held as stock-in-trade, s. 50C did not apply. On appeal by the department to the High Court, held dismissing the appeal:

 

For applicability of s. 50C, it is essential that an asset should be a “capital asset”. The question whether an asset is a “capital asset” or “stock-in-trade” is one of fact and has to be determined as per the guidelines laid down. On facts, the assessee was a builder and the investment in purchase and sale of plots was ancillary and incidental to the business activity. The assessee had treated the land as stock in trade in the balance sheet. Consequently, s. 50C had no application.

 

CIT v. Kan Construction And Colonizers (P) Ltd (All) ( High Court)www.itatonline.org

 

   

 

S.50C:Capital gains- Full value of consideration-Stamp valuation- Rights in land and building- Provision of section 50C is a deeming provision which does not apply to “rights in land & building”

 

The assessee booked a flat in a building which was under construction for which he had paid Rs. 16.12 lakhs. The builder had not handed over possession of the flat to the assessee nor had he executed any registered sale deed in favour of the assessee. The assessee entered into an agreement pursuant to which he transferred his rights, title and interest in the said flat in consideration of the amount paid by him to the builder. The AO took the view that as the flat was valued at Rs. 57.57 lakhs for stamp duty purposes, capital gains had to be computed on that basis u/s 50C. This was reversed by the CIT (A). On appeal by the department, held dismissing the appeal:

 

S.50C applies “where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a State Government for the purpose of payment of stamp duty …” S. 50C is a deeming provision and extends to only to land or building or both. A deeming provision can be applied only in respect of the situation specifically given and cannot go beyond the explicit mandate of the section. If the capital asset under transfer cannot be described as “land or building or both”, s. 50C will cease to apply. As the assessee had transferred booking rights and received back the booking advance, the booking advance cannot be equated with the capital asset and therefore s. 50C cannot be invoked (Tejinder Singh followed).

 

ITO v. Yasin Moosa Godil (Ahd)(Trib).www.itatonline.org

 

 

 

S.54:Capital gains-Exemption- Investment-Investment in property within time allowed under section 139(4), entitled to exemption.(S.139(4))

 

The assessee has invested the sale consideration in his new residential house  which he acquired on 15-10-2008. The assessing officer has held that as the assessee has not invested the amount in capital gain account scheme , before due date of filing of return of income which was 31-7-2008, as per section 54(2) , the exemption was denied. On appeal the Commissioner (Appeals) allowed the claim of assessee on the ground that the investment was made with in the period of section 139(4). On appeal by revenue , the Tribunal also confirmed the order of Commissioner (Appeals) holding that since the assessee had invested in the new property within time allowed under section 139(4) , the assessee would be entitled to exemption under section 54. (A.Y. 2008-09)

 

ITO v. Sapna Dimri (2012) 50 SOT 96 (Delhi) (Trib)   

 

 

S.54:Capital gains-Exemption- Investment-Investment in property  in joint name-Benefit of exemption to be allowed for entire amount of investment .(S. 27, 64)

 

The assessee sold the inherited property and purchased a new  residential property in joint name with his wife and claimed deduction under section 54. The Assessing Officer allowed the exemption only to the extent of 50% investment on the ground that 50% property belongs to wife. On appeal the Commissioner (Appeals), granted the  exemption of entire amount . On appeal by revenue the Tribunal held that the name of assessee’s wife was entered in the sale agreement just for purpose of security , and for purpose of sections 22 to 26, 27 and 64. Assessee would be owner of whole property and income there from would be assessable in his hands, therefore benefit of section 54 of entire amount invested in new property was to be allowed. Appeal of revenue was dismissed. (A.Y 2007-08)

 

Asstt. CIT v. Suresh Verma ( 2012) 135 ITD 102 (Delhi) (Trib)

 

  

 

S.54EC: Capital gains-Exemption-Investment in bonds- Assessee entitled to exemption under section 54EC if investment is made within six months from the date of receipt of amount is entitled for exemption.

 

The assessee received the part payments after execution of agreement for sale and handing  over of possession thereby completing the transaction in terms of section 53A of  Transfer of Property Act , but invested in the specified bonds i.e. NABADARD  bonds within one month of the receipt of sale consideration being part payment. Assessing Officer allowed the claim under section 143 (3). Commissioner revised the order under section 263 on the ground that the investment was not within six months of deemed sale. In appeal before the Tribunal, the Tribunal directed the Assessing Officer to ignore the finding of Commissioner and decide on merit. In the consequential order the Assessing Officer disallowed the claim, which was confirmed by Commissioner (Appeals). On appeal to the Tribunal by assessee the Tribunal held that, period of six months for making deposit under section 54EC had to be reckoned from dates of actual receipt of consideration, since the assessee had invested in specified bonds within one month of receipt of sale consideration being part payment he is eligible for exemption under section 54EC  of the Act.(A.Y. 2005-06)

 

Chanchal Kumar Sircar v. ITO ( 2012) 50 SOT 289 (Kol) (Trib)      

 

S. 54EC: Capital gains- Exemption-Limit-Financial year- limit of Rs. 50L does not apply to the transaction but financial year. Delay in investing within 6 M owing to non-availability of bonds to be excused.

 

The assessee sold property on 22.10.2007 and computed long-term capital gains. The s. 54EC investment was required to be made within 6 months i.e. on or before 21.04.2008. The assessee invested Rs. 50 lakhs in REC bonds on 31.12.2007 (FY 2007-08, within the 6 M time limit) and Rs. 50 lakhs in NHAI bonds on 26.5.2008 (FY 2008-08, beyond the 6 M time limit) and claimed a deduction of Rs. 1 crore. The assessee claimed that no eligible scheme was available for subscription from 1.4.2008 to 28.5.2008 and that he applied in the NHAI bonds as soon as it opened and that he was prevented by sufficient cause from investing within the time period of 6 months. The AO & CIT (A) rejected the claim for exemption of Rs. 50 lakhs in respect of the NHAI bonds on the ground that (i) it exceeded the monetary limit of Rs. 50 lakhs prescribed in s. 54EC and (ii) it was made beyond the time limit of 6 months. On appeal to the Tribunal, held  allowing the appeal:

 

(i) The Proviso to s. 54EC provides that the investment made in a long term specified asset by an assessee “during any financial year” should not exceed Rs. 50 lakhs. It is clear that if the assessee transfers his capital asset after 30th September of the financial year he gets an opportunity to make an investment of Rs.50 lakhs each in two different financial years and is able to claim exemption upto Rs.1 crore u/s 54EC. The language of the proviso is clear and unambiguous and so the assessee is entitled to get exemption upto Rs.1 crore in this case;

 

(ii) Though the time limit of 6 months for making the investment u/s 54EC expired on 21.4.2008, no bonds were available for subscription between 1.4.2008 to 28.5.2008. The investment was made as soon as the subscription opened on 26.5.2008. The assessee was accordingly prevented by sufficient cause which was beyond his control in making investment in these Bonds within the time prescribed. Exemption should be granted in cases where there is a delay in making investment due to non-availability of the bonds (Ram Agarwal (2002)81 ITD 163 (Mum) followed)

 

Aspi Ginwala v. ACIT ( Ahd) (Trib).www.itatonline.org

 

 

 

  

 

S.54F: Capital gains –Exemption- Investment in residential house –Purchase of house in joint names of assessee and his wife, assessee is entitled to exemption under section 54F.

 

Assessee purchased the house in the joint name of assessee and his wife and claimed exemption under section 54F. The assessing Officer has allowed exemption only to the extent of 50 percent, which was confirmed by Commissioner (Appeal). On appeal to the Tribunal the Tribunal allowed the full exemption to the assessee. On further appeal to High Court by revenue the Court held that as the wife has not contributed to purchase and whole purchase consideration was paid by assessee ,it would be treated as the property purchased by the  assessee in his name and merely because he had included the name of his wife and the property purchased in the joint name of his wife  would not make any difference and the assessee is entitled to exemption under section 54F.Accordingly the appeal of revenue was dismissed.(A.Y. 2007-08)

 

CIT v. Ravinder Kumar Arora ( 2012) 342 ITR 38 (Delhi) (High Court)

 

S.54F:Capital gains-Investment in residential house- Transfer- Transfer is complete when possession was handed over-As the investment made by assessee within period of one year prior date of transfer , the assessee is entitled to deduction under section 54F.(S. 2 (47) )

 

  The assessee has sold the property at Chennai and the sale agreement was originally entered   in to on 27-8-1996 and clearance from appropriate authority was obtained on 8-10-1996 , subsequently the agreement was restated and conveyance was done on 25-11-199. The assessee once again  approached the appropriate authority on 11-02-2000 for clearance and obtained  and the possession was given on 28-11-2009 . All these facts were  disclosed in the original assessment which was completed under section 143 (3) read with 147  the claim was allowed only for purchase  at the stage of assessment. On appeal the Commissioner (Appeals) considering the various judicial pronouncement applicable to section  54 and 54F  allowed the claim for both the purchases and construction of property at Bangalore. Subsequently, notice under section 263 was issued which was withdrawn. A fresh notice under section 148 was issued on the  ground that the assessee had furnished the wrong date of transfer since the provision was complied with only on 21-2-2000, deduction under section 54 /54F was wrongly claimed hence to be withdrawn .On appeal the Commissioner (Appeals) allowed the appeal of assessee on reassessment as well as on merits following the ratio of Bombay  High Court Judgment in Chaturbuj  Dwarakadas  Kapadia   v.CIT ( 2003) 260  ITR 491 (Bom) . Revenue filed an appeal before the Tribunal , as there  was difference of opinion the matter was referred to third member . The Tribunal held that since the possession was handed over to buyer on 28-11-199 against receipt of consideration of transaction, it could be said that transfer of property had taken place on 28-11-1999 satisfying the requirement of section 2 (47).The Tribunal also held that  latest NOC issued by appropriate authority on 21-2-200- could not be considered in isolation of first NOC issued on 8-10-1996  as it was revision of first NOC, therefore NOC issued on 21-2-2000 relates back to first NOC issued on 8-10-1996 and as such reinforced facts of transfer of property on 28-11-1999, when the possession was handed over to buyer . Accordingly the investment made by assessee on 9-12-1998 in residential property was well within period of one year prior to transfer i.e. 28-11-1999 for availing deduction under section 54F .Accordingly the issue was decided in favour of assessee. (A.Y.2007-08)

 

Asstt.CIT v. P. R. Chockalingam (2012) 135 ITD 75 (Chennai)( TM )(Trib)           

 

S.55: Capital gains- Cost of acquisition- Fair market value-Fair market value as on 1-4-1981-Matter remanded to the Assessing Officer to determine the valuation afresh.

 

Assessee has shown the valuation at Rs.1,00,000/- per ground , though the valuation report of valuer of assessee valued at Rs 1, 20,000 per ground for determination of cost of acquisition. The Assessing Officer adopted the value at Rs 15,000 per ground based on the guidelines from the Sub-Registrar collected by the inspector of Income tax. The Tribunal held that the Assessing Officer has could have availed the assistance of the Departmental valuer , he merely relied on the report of inspector , which is an arbitrary method. Similarly the valuation report of the approved valuer submitted by the assessee refers only experience and wisdom , but not given comparable cases of sales or other relevant information which could support the value adopted by the approved valuer . The matter was set aside for fresh consideration.( A.Y. 2007-08)

 

ITO v. Usha Ramesh (Smt) (2012) 144 TTJ 673 (Chennai) (TM ) (Trib)    

 

S.55: Capital gains- Cost of acquisition- Trade mark –Brand name- Patents- Designs-Amount received by assessee for transfer of trade mark ,patents and designs is capital receipt and liable to tax.(S.4)

 

The assessee has executed three deed of assignments for assigning intellectual property rights (IPRS)  being trademarks, designs, copyrights for an aggregate consideration of Rs 30 crores. The assessee is of the opinion that the they are not liable to capital gains tax on the ground that IPR being self generated assets. The Assessing Officer held that the same is taxable as long term capital gains as cost of acquisition being nil. The Commissioner (Appeals) upheld the view of Assessing Officer . In appeal before the Tribunal , there was difference of opinion and the matter was referred to third member . The third member held that the assessee has transferred only the rights in IPR and not the right to manufacture ,produce or process biscuits and therefore it was entitled to claim amount of Rs 30 crores as non taxable capital receipt.  Appellate Tribunal following the Circular no 14/2001 dated 9-11-2011 ,held that amendment made to section 55(2)(a) by bringing in terms ‘trade mark’ and ‘brand name’ is only prospective and is applicable only from assessment year 2002-03.

 

Kwality Biscuits (P) Ltd v. Asstt.CIT ( 2012) 135 ITD 35 (Bang) (TM ) (Trib)

 

 

S. 57:Income from other sources-Deduction- Export undertaking- Netting- Income tax refund-Payment of income tax could not be said to be more for earning interest hence interest paid is not allowable under section 57(iii).

 

The assessee claimed that the interest  earned on income tax refund should be netted off against payment of interest . The Assessing Officer has not agreed with the contention of assessee and  assessed the entire interest refund from Income tax  department as income from other sources. On appeal the Commissioner (Appeals) held that the netting of interest is to be allowed . On appeal by revenue the Tribunal held that since the payment of income tax could not be said to be made for earning of interest the deduction cannot be allowed under section 57 (iii).Appeal of revenue was allowed.(A.Y 2002-03 )

 

Dy. CIT v. American Express (India ) (P) Ltd ( 2012) 135 ITD 211 (Delhi) (Trib)    

 

S.68: Cash credits- Share application money-Identity- Identity of share applicants were not established  hence addition was up held.

 

The assessee is a Pvt. Ltd company engaged in the trading business in coal. It was found that Hindustan Continental Ltd (HCL) had applied for 40000 share application on face value of Rs 10 each and premium of Rs 90 per share. Similarly the Optimates Textile Industries Ltd (OTL) also applied for 10000 shares. Both the parties are from Indore. The Assessing Officer referred the matter to Assistant Commissioner Indore to verify the genuineness of parties .The investigation carried out by the Officials of Indore; it was found that the parties were not in existence.  The Assessing Officer held that as the assessee has failed to establish identity of share applicants the addition was made under section 68. On appeal the Commissioner (Appeals), up held the addition. On appeal to the Tribunal, the Tribunal held that since the identity of share applicants had not been established, the initial onus laid down under section 68 had not been discharged and thus addition made to be up held. The ratio of Supreme Court in CIT v. Lovely Exports (P) Ltd (2008) 216 CTR 195 / 6 DTR 308 (SC) cannot be applicable. (A.Y. 2004-05 to 2006-07)

 

Agarwal  Coal Corporation (P) Ltd v. Addl.CIT ( 2012) 135 ITD 270 (Indore) (Trib)

 

   

 

S.70:Loss- Set off-Beneficial method-Set off of from one source against income from another source under same  head of income –Assessee can adopt which is most beneficial to him.

 

The assessing officer computed short term capital gain and short term capital loss, suffered by assessee separately for the periods 1-4-2004 to 30-9-2004 & 1-10-2004 to 31-3-2005. He allowed the set off of the short term capital loss against, short term capital gains earned during 1-10-2004 to 31-03-2005 and levied the tax on the net short term  capital gains. In appeal before the Commissioner (Appeals) the assessee submitted that as per section 70 assessee is entitled to set off loss under short term capital gains against income from short term capital gains. Section 70 nowhere provides that short term capital loss arising from STT paid transactions can only be set off against short term capital gains or long term capital gains. The Commissioner (Appeals) accepted the contention of assessee and allowed the appeal. On appeal to the Tribunal by revenue , the Tribunal held that since no particular mode or manner of set off is provided in Act , the assessing Officer should adopt  that chronological order or manner which is most beneficial to assessee, relying on the Circular no 26 (LXVGI-3 of 1955 dated 7-7-1955) (A.Y. 2005-06)

 

Deputy CIT v. Noble Enclave & Towers (P) Ltd (2012) 50 SOT 5 (kol) (Trib)

 

S.71:Losses-Inter heads  set off-Exempted income- Assessee is  entitled to set off the loss incurred in an eligible industrial  unit against the other incomes earned by the assessee (S. 10B, 70)

 

The assessee suffered loss in Unit eligible for deduction under section 10B and there was a business income in an another  Unit. The assessee set off the loss against the income of another unit. The  Assessing Officer held that Income of EOU is exempt under section 10B ,which did not form part of the total income , hence the loss is not allowed to be set off . On appeal the Commissioner (Appeals) confirmed the order of Assessing Officer. On appeal to the Tribunal, the Tribunal held that there is no restriction to set off the loss of the eligible industrial unit  against the income earned by the assessee in any other Unit. Section 10B(6), which is a non obstante clause which provides that loss referred in sub section (1) of section 72 or section 74(3) and section 74(1) , in so far as such loss relates business of undertaking eligible under section 10B ,shall not be carried forward or set off where it relates to any of the assessment year commencing before 1-4-2011, however , it  is pertinent to note that provisions of section 70 or 71 have not been included in the non obstante provision, therefore, it cannot be said that the provisions of section 70 or section 71 cannot be applied in computing the total income of the assessee. Accordingly the Tribunal held that, loss in eligible unit for deduction under section 10B and there was a business loss as per section 70 and if after such set off still there is a business loss. Such loss can be set off against other sources as per section 71. (A.Y.2008-09)

 

Bharat Resins Ltd v. Asst .CIT ( 2012) 50 SOT 298 (Ahd) (Trib)      

 

S.78: Losses-Carry forward-Change in constitution-Carry forward and set off of, in case of change in constitution of firm or on succession-Losses suffered by firm could not be set off from income of as an individual.

 

Assessee, who was an individual , had taken over the running business of a partnership firm in which he was a partner .He claimed the set off the loss suffered by partnership firm against income earned by him as an individual . Revenue authorities and Tribunal rejected the claim of assessee. On appeal to high court the court held that in view of provisions of section 78(2), it is only person who incurs or suffer loss would be entitled to carry forward same and set off and no other person except in case of succession by inheritance. Since partnership firm and individual are two separate taxable entities or persons under the Act, loss suffered by partnership firm could not be set off from income of assessee as an individual. Accordingly the order of Tribunal confirmed. (A.Y 2005-06)

 

Pramod Mittal v. CIT (2012) 205 Taxman 444 (Delhi) (High Court)    

 

S.80I:Dedcution- New industrial undertaking-Old unit- Despite “Dependence” on Old Unit, Unit Can Be “New Industrial Undertaking”

 

The assessee had a plant to produce caustic soda. It increased capacity from 37425 MT to 70425 MT by installing “12 new cells” and incurred expenditure of Rs.7.5 crore towards new machinery and plant added to the existing plant. The assessee claimed that a “new industrial undertaking” had come into being which was eligible for relief u/s 80-I. The AO, CIT (A) & Tribunal disallowed the claim on the ground that it was a case of substantial expansion and not a “new industrial undertaking” on the ground that though new plant and machinery by investing substantial funds had been installed, the undertaking was not an “integral unit by itself” but was dependent on the old undertaking for its functioning. On appeal by the assessee to the High Court, held reversing the lower authorities:

 

The principal object of s. 80I is to encourage setting up of new industrial undertakings by offering tax incentives. A reasonable and purposive construction should be adopted. There is no logic in the argument of the department that the true test would be as to whether a new industrial undertaking can function independently of the existing industrial undertaking. If this argument is accepted, it will amount to adding a new clause in s. 80I of the Act. The fact that the new unit is not capable of independently producing the goods without taking the assistance of the existing plant and machinery of the old unit is no ground to reject the claim u/s 80I. The test laid down in Textile Machinery Corporation(1977) 107 ITR 195 (SC), namely that the new unit should have a “separate and distinct identity” is not violated only because the new undertaking is to a certain extent dependent on the existing unit. It all depends on the nature of the technology and the mechanism of production. One cannot ignore the fact that new machinery and new plant have been installed at an investment of Rs.7 crore and the fact that production has gone from 34000 MT to 75000 MT (Associated Cement Company(1979) 118 ITR 406 & other judgements distinguished /explained)

 

Gujarat Alkalies & Chemicals Ltd v. CIT (Guj)(High Court)www.itatonline.org

 

 

 

S.80IB: Deduction-Industrial undertaking-Income derived- The deduction is not available to service income, interest income, commission compensation for delayed payments and imported materials.

 

The assessee which is involved in manufacturing activities and selling of additives on commission basis  , claimed deduction under section 80IB on service income, interest on deposits  interest received from employees, commission received , compensation from sundry debtors  for delayed payments and income on imported materials. Though the assessee preferred appeal against all the issues the court has admitted the appeal only in respect of service income and commission received. The court held that section 80IB and 80IA  are code by themselves. As the finding has been given by the Tribunal that the income is not derived from industrial undertaking , deduction under section 80IB is not eligible. Order of Tribunal confirmed. (A.Y. 1999-2000)

 

Indian Additives Ltd v. Dy. CIT ( 2012) 67 DTR 389 (Mad) (High Court)     

 

S.80IB:Deduction-Industraial undertaking- Manufacture- Perfumed hair oil- Production of perfumed hair oil by using coconut oil and mineral oil  amount to manufacture and entitled to deduction under section 80IB.

 

The assessee is engaged in the business of production of perfumed hair oil using coconut  oil and mineral oil as per the requirement of Hindustan Lever Ltd . The assessee claimed the deduction under section 80IB.The Assessing Officer rejected the claim. In appeal before the Tribunal the Tribunal allowed the claim of assessee. On appeal by revenue the Court following the ratio of supreme Court in   CCE v. Zandu Pharmaceutical Works Ltd (2006) 12 SCC 453,wherein it has been held that addition of perfume to coconut oil to produce perfumed oil constitute a manufacturing process, hence  decision of Tribunal holding that the assessee is engaged in manufacturing activity is justified . The appeal of revenue was dismissed.(A.Y.  ITA no 5779 of 2010 dt 30-11-2011 )

 

CIT v. Beta Cosmetics (2012) March –P 31 -683 (2012)43-B BCAJ (Bom) (High Court)    

 

S.80IB(10): Deduction-Housing project-Multiple housing projects- Multiple housing projects on 1 Acre Plot is permissible, assesses eligible for deduction.

 

The High Court had to consider the following questions on interpretation of s. 80-IB(10): (i) what is a “housing project” u/s 80-IB(10)?, (ii) whether if approval for construction of ‘E’ building was granted by the local authority subject to the conditions set out in the first approval granted on 12.5.1993 for construction of A and B building, construction of ‘E’ building is an “extension” of the earlier housing project for which approval was granted prior to 1.10.1998 and, therefore, benefit of s. 80IB (10) cannot be granted?, (iii) whether the housing project must be on a vacant plot of land which has minimum area of one acre and if there are multiple buildings and the proportionate area for each building is less than one acre, s. 80-IB(10) can be denied?, whether the merger of two flats into one so as to exceed the maximum size of 1000 sq feet violates the condition set out in s. 80IB (10)? Held by the High Court:

 

(i) As the expression ‘housing project’ is not defined, it must have the common parlance meaning and means constructing a building or group of buildings consisting of several residential units. The approval granted to a building plan constitutes approval granted to a housing project. Construction of even one building with several residential units of the size not exceeding 1000 square feet would constitute a ‘housing project’ u/s 80IB (10);

 

(ii) ‘E’ building is an independent housing project and not an extension of the housing project already existing on the plot because when the earlier plans were approved, ‘E’ building was not even contemplated and came into existence much later. The fact that the approval was granted on the same terms as that granted to the other buildings does not make it an “extension”;

 

(iii) S. 80IB (10)(b) specifies the size of the plot of land but not the size of the housing project. While the plot must have a minimum area of one acre, it need not be a vacant plot. The object of s. 80IB (10) is to boost the stock of houses. There can be multiple housing projects on a plot of land having minimum area of one acre;

 

(iv) On facts, as there was no merger of flats and no application was made to the local authority seeking merger of two flats, there was no violation.

 

CIT v. Vandana Properties (Bom)( High Court)www.itatonline.org

 

 

 

S.80IB(10):Deduction- Housing project-Date of commencement-Date of commencement of development and construction of housing project was date when assessee actually started and carried out the work of development and not when the project was first approved- Residence flats sold to company was let out by company for commercial use, exemption to assessee cannot be denied-Two flats exceeded 1000 square feet each , exemption can be allowed proportionately after excluding profits from two flats.

 

Assessee received the first commencement certificate dated 15-5-1991, however the assessee could not start the project construction said commencement certificate was lapsed. Latter on construction was started in year 2002 , in pursuance  of commencement certificate dated 2-3-2001.The claim of deduction under section 80IB (10) was denied on the ground that project had commenced prior to 1-10-1998 .The Tribunal held that date of commencement of development and construction of housing project was date when assessee actually started and carried out work of development and construction and not when the project was first approved .The issue was decided in favour of assessee. The assessing officer has also held that the residential flats which were sold to company were let out by company for non residential purpose hence the assessee is not eligible for deduction. The Tribunal held that the shops are less than 10 % of built up area; hence claim cannot be rejected. The Tribunal also held that subsequent use by end user for non residential purpose exemption cannot be denied. The Tribunal also held that two flats exceeding 1000 square feet the Commissioner(Appeals), has directed to work out proportionate deduction under section 80IB (10),  after excluding profit from sale of two flats hence the order of Commissioner (Appeals)  was confirmed. (A.Y. 2002-03 to 2008-09)

 

Maju Gupta (Smt) v. Asst. CIT (2012) 134 ITD 503 (Mum) (Trib)

 

S.80IB(10): Deduction-Housing project-  Developer-Developer is entitled to deduction under section 80IB(10).

 

The  assessee has entered into ‘Development agreement’ with Kalpataru  Park Millenium Co-Operative Housing Society  Ltd  for the purpose of developing the housing project .The Assessing Officer has rejected the claim under section 80IB(10),holding that the assessee is not the developer. The Commissioner (Appeals) held that the assessee is entitled to deduction . On appeal by the revenue the Tribunal held that the developer had all dominant control over the project  and developed the land at his own cost and risks . All transactions pertaining to the project have been entered in entirety in the books of account of the assessee . The Co-operative Society did not account for any receipts or expenditure in connection with the building of house .The Tribunal has analysed various clauses in the agreement and come to the conclusion that the assessee is the developer. The Tribunal also held that the decision of Apex court in K.Raheja Development Corporation is dealing with Karnataka Sale Tax Act, hence ratio can not be applied to interpret the provisions of section 80IB (10). Accordingly the Tribunal held that the assessee is eligible for deduction under section 80IB (10) ,accordingly the appeal of revenue was dismissed.(A.Y. 2006-07)

 

DCIT v. Parshwanath Reality P.Ltd –(2012) BCAJ –January -2012-477 (Ahd)(Trib)

 

S.80HHC:Deduction-Export- Sale in India-Export-Sale  to UNICEF in India is not  considered as “export out side India” hence not eligible deduction under section 80HHC.

 

The assessee is engaged in the business of metal printing , coating etc. During the year it sold certain goods to UNICEF in India and treated the sale as “export sales” for the purpose of relief under section 80HHC. The payment for the said goods were received in “convertible foreign exchange’’. The assessee treated the sale as deemed export. The Assessing Officer held that the said goods never crossed the territory of India and therefore , it could not be said that the assessee had exported the goods outside India or that it was engaged in the business of export outside India In an appeal the Commissioner (Appeals) and Tribunal up held the view of Assessing Officer. On appeal to High Court , the Court held that plain and simple meaning of the term “export outside India” would entail the transfer of goods out of territory of India ; goods must physically move out of India at least in so far as tangible goods are concerned , therefore the assessee is not entitled to deduction under section 80HHC in respect of sale to UNICEF in India.(A.Y. 1988-89)

 

Indian Del (P) Ltd v. CIT ( 2012) 68  DTR 225 (Delhi) (High Court)      

 

S.80HHC:Deduction-Export-Export oriented undertaking- Profits of business-Profits of EOU unit shall form part of head income’ profits and gains of business or profession’ and therefore same is includible in ‘profits of business of assessee’.(S.10B)

 

The assessee had two units namely EOU unit and DTA unit and both have domestic as well as export turnover . While the EOU unit was entitled for deduction under section 10B, the DTA Unit was entitled for deduction under section 80IA. The DTA unit is entitled to deduction under section 80HHC on its export profit . The assessee has included export sales of EOU in the export turn over of it while computing deduction under section 80HHC. The Assessing Officer and Commissioner (Appeals) rejected the inclusion of export sales of EOU. The Tribunal held that section 10B is amended by the Finance Act , 2000 , with effect from 1-4-2001 and also section 80A (4) with effect from 1-4-2003 . These amended provisions contains adequate expressions in them to infer and interpret that the provision of section 10B  is a ‘deduction’ provision and not exemption provision. Accordingly following the ratio of judgment in Hindustan Unilever Ltd v. Dy.CIT ( 2010) 325 ITR 102 (Bom) high court , the Tribunal held that the profit of EOU unit shall form part of the head of income ‘profits and gains of business or profession’ and therefore  same shall be includible in the ‘profits of the business’ of the assessee.(A.Y.2001-02)

 

Serum Institute of India Ltd v. Addl .CIT ( 2012) 135 ITD 305 (Pune) (Trib)

 

S.80HHE:Deduction-Export-Computer software –Exchange rate fluctuation rate variation gain has not  to be excluded from total turnover and export turn over, in favour of assessee.

 

  The Assessing Officer held that exchange rate fluctuation gains had to be excluded from total turnover and  export turnover for computation of deduction under section 80HHE of the Act in view of explanation (e) to section 80HHE of the Act, which contemplates only actual amount of foreign exchange received in India . In appeal the Tribunal set aside the said finding. On appeal by revenue to High  Court the court up held the view of Tribunal and held that the exchange rate variation gain has not to be excluded from total turnover and export turnover for computing of deduction under section 80HHE .(A.Y. 1999-2000)

 

CIT v. Infosys Technologies Ltd ( 2012) 205 Taxman 250 (Kar) (High Court)

 

 

S.80G: Deduction- Charitable institution-Charitable and religious purpose- Expenditure on religious activities exceeding 5%, denial of exemption held to be justified.

 

The assessee society was formed with the objects of evangelizing and edifying the body of Lord Jesus Christ so as to spread teachings to far off villages, to publish Christian magazines and journals etc. The society incurred major expenses on TV telecast and salaries of preachers. The Commissioner refused the  renewal of exemption granted under section 80G, on the ground that the activities of the society are substantially of religious in nature and not for charitable purpose. Commissioner considered the salaries of preachers under the head religious purposes. The assessee claimed that the salaries of preachers are for charitable purposes .The Tribunal confirmed the view of commissioner that salaries of preachers cannot be considered as for charitable purposes . Since the expenditure on religious activities is more than 5 percent of the total income of the assessee , it is hit by sub-section 5 (ii) of section 80G , read with sub section 5B, hence the order of Commissioner is up held.(A.Y. 2010-11)

 

Church of Christ Social Services Society v.CIT ( 2012) 144 TTJ 785 (Viskha) (Trib)     

 

S.80HHC:Dedcution-Export- Excise duty-Excise duty should not be included in total turnover for the purpose computation under section 80HHC-Misatke of chartered accountant in the form 10CCAC can not be relied upon by revenue for reducing the legitimate claim allowable as per provisions of the Act.

 

The Chartered accountant of assessee in the form 10CCAC  has included the excise duty as part of total turnover. The assessee made the claim that in the export sales there is no excise duty and therefore adding the excise duty was not correct. In appeal Commissioner confirmed the addition . On appeal to Tribunal the Tribunal held that the tax liability has to be determined in accordance with law and mistake made in the certificate of chartered accountant on form no 10CCAC should not have been relied upon by the revenue for reducing the legitimate claim for deduction under section 80HHC,  accordingly the claim of the assessee was allowed.(A.Y.2004-05)

 

Schrader Duncan Ltd v. Addl.CIT ( 2012) 50 SOT 68 (Mum) (Trib)

 

S.80IA: Deduction-Industrial undertaking-Eligible business-Windmill-Loss of earlier year set off cannot be considered only the loss from the initial assessment year to be brought forward.

 

The assessee which is running a spinning mill, installed three wind mills ,the first  year of commencement of business was the assessment year 2003-04.The assessee opted for 2007-08 as the initial assessment year for the purpose of claiming deduction under section 80IA, in respect of wind mills. The assessee in the initial years set off the losses of wind mills against the profit of spinning mill division. The assessee did not claim deduction during the years it suffered losses. The Assessing Officer has held that the initial year should be taken as the year of  commencement of business and not the year of claim of deduction and unabsorbed depreciation of the earlier years which had already been absorbed could be notionally carried forward and taken for computing the deduction. On appeal the Commissioner (Appeals) allowed the claim  of assessee and directed the Assessing Officer to compute the profits under section 80IA (5) of the Act , as if such eligible business beginning from the initial assessment year were to be brought forward and not loss of the earlier years which had been already set off against the other income of the assessee. On appeal by revenue the Tribunal up held the order of Commissioner (Appeals) following the judgment in Velayudhasamy Spinning Mills P.Ltd  v. Asst .CIT ( 2012) 340 ITR 477 (Mad) (High Court)

 

Asst.CIT v. Eveready Spinning Mills Ltd ( 2012) 14 ITR 491 (Chennai) (Trib).     

 

S.90: Double taxation avoidance- Non-resident-Taxability-Payment being not taxed in both contracting States assessee is not eligible for exemption- DTAA- India –UK –Art 16(1( ,(2).

 

The assessee has claimed the salary amounting to Rs 15, 25, 577 as exempt under article 16(1) and 16(2) of the DTAA between India and United kingdom, on the ground that salary paid in India by a foreign employer cannot be brought to tax under article 16(2) of the DTAA. The claim was rejected by Assessing Officer and Commissioner (Appeals), however the Tribunal has allowed the claim of assessee. On appeal by revenue the court held that as the amount was not taxed either in the U.K. or in India . The payment was made through the Indian based company by the U.K. company. If it was the contention of the assessee that he was an employee of the U.K. company alone , the payment would have been made by the foreign company and not by Indian company . Therefore , the condition stipulated in article 16(2)(b) was not fulfilled in so far as the Indian company treated the assessee as its employee and issued the certificate deducting tax at source .The Court held that the assessee is not eligible for exemption, accordingly the appeal of revenue was allowed.( A.y. 2001-02)

 

CIT v. Ravi Rajagopal ( 2012) 342 ITR 22 (Mad) (High Court)   

 

S.92C:Avoidance of tax-Transfer pricing-Computation- if FAR analysis indicated diversion in two activities bench mark should be done on separate basis-In the absence of comparable cases submitted by assessee TPO  can select the comparable from the details submitted by the assessee-Working of adjustment by the TPO  was confirmed by the Tribunal.

 

Assessee entered in to international transactions with its Associated Enterprises. Apart from manufacturing the assessee also had business of trading and indenting. There  was no disputes as regards the arm’s length price declared by assessee in respect of manufacturing activity. Assessee consolidated the results of trading and indenting activities. The TPO requested the assessee to segregate the results in respect of trading and indenting activities. Initially the assessee was  reluctant to furnish the details  however furnished the details  thereafter . The TPO computed the arm’ s length price by taking FAR analysis separately . The Issue before the Tribunal was whether the action of the TPO determination of bench mark taking separate basis is justified or not. The Tribunal held that the action of the TPO is justified. The Tribunal also held that when the assessee has not submitted the comparables, the TPO was justified in selecting the comparable from the details furnished by the assessee and making an up word adjustment to ALP of Rs 25.56 crores. The Tribunal confirmed the adjustment made by the TPO.(A.Y.2006-07)

 

Bayer Material Science (P) Ltd v. Addl .CIT ( 2012) 134 ITD 582 (Mum) (Trib)

 

 

S.92C:Avoidance of tax-Transfer pricing-Computation- Interest free loan to subsidiary , matter is restored to the file of Assessing Officer to apply CUP method.

 

The Assessee in its TP study observed that as no external CUP was available for bench marking the transaction applied the TNMM and concluded that transaction was at arms’s length .The TPO rejected the assessee’s method considered a risk free return from the subsidiary , a notional interest at 10 percent on loan as ALP amounting to Rs 31, 51, 259. On appeal Commissioner (Appeals) also confirmed the addition. On appeal to the Tribunal , the tribunal held that neither the assessee nor TPO having examined applicability of CUP method in order to determine the ALP of the international transaction of interest –free currency loan to its subsidiary by assessee , the Tribunal restored the  matter to Assessing Officer for fresh adjudication following CUP method .(A.Y. 2002-03)

 

Aithent Technologies (P) Ltd v. ITO ( 2012) 144 TTJ 731 (Delhi) (Trib)

 

S.92C: Avoidance of tax- Transfer pricing-Computation-TPO flawed on five issues including the selection of comparable only with substantial related transaction held to be not proper and  the matter is  set as side.

 

The assessee had international transactions with related and unrelated  parties . The TPO  has selected only  four comparables and also denied the benefit of+ 5 percent sought by assessee. The adjustment made by the TPO was confirmed by the DRP. On appeal to the Tribunal , it was contended that the (1) Party having substantial related party transactions should be excluded as comparable .(2) Allocation of advertisement and sale promotion expenses based on  turn over of manufacturing and trading  is held to be not proper. (3) The benefit of  standard deduction of plus or minus 5 percent is not taken in to consideration. (4)The adjustment can be made only in respect of transaction with Associated Enterprises instead of entire turn over ,(5) While working out the operating profit  to sales margin , accurate figures as per the annual accounts of the concerned comparables  should be taken .The Tribunal held that the TPO having flawed on five issues as contended by the assessee matter remanded to the Assessing Officer for deciding the matter afresh after taking in to consideration the propositions put forth by the assessee.( A.Y. 2006-07)

 

Huntman Adavnced Materials (India) (P) Ltd v. DY.CIT ( 2012) 68 DTR 162 (Mum) (Trib)

 

 

S.92C:Avoidance of tax- Transfer pricing-Computation- Additions made on the basis of operating cost/operating profit of Vega US  was deleted.

 

The assessee is engaged in the business of manufacturing of several products . It had three overseas subsidiaries , namely Vega UK, Vega US and Vega UAE. The assessee sold its products to domestic market where as marketing and distribution of its products in international markets was undertaken by Vega entities of in their specified jurisdiction. The TPO made adjustment in respect of sales made to Vega UAE on ground that Vega UAE  was neither bearing any inventory risk nor credit risk and therefore it was not a distributor but only market service provider .The TPO adopted the transfer pricing on basis of operating  cost /operating profit percentage of Vega UAE, Vega UK and Vega US  as base. The Tribunal held that operating cost /operating profit margin depend on level of operating expenses incurred by respective Vega entities and also making business earning by respective Vega entities , if operating cost is higher in US  it could not be said that profit margin of other Vega entities in different countries  should be  at par with profit margin of Vega US . Accordingly once the it was  accepted that Vega UAE  as distributor and carrying on  both inventory or credit risk , TP adjustment  made of the TP officer was deleted .( A.Y. 2006-07)

 

AIA Engineering Ltd v. Addl. CIT ( 2012) 50 SOT  134 (Ahd) (Trib)   

 

S.92C:Avoidance of tax-Transfer pricing-Computation-Result of Loss making companies were held to be not comparable .

 

The assessee is 100 % subsidiary of a foreign company and is engaged in the business of BPO/ITES. The assessee has adopted TNMM method as the most appropriate method and computed the PLI(OP/TC) at the rate of 15.76 percent on the operating cost . The TPO has  determined PLI at 25.78 percent on the basis of eight comparable. Before Commissioner (Appeals) the assessee has furnished eight additional comparables . On the basis of 16 comparables the average PLI was computed at 11.01 percentage  which was less than PLI shown by assessee . The Commissioner (Appeals) had excluded the results of loss making companies for the purpose of determining the average profit margin. On appeal to Tribunal ,by assessee  the Tribunal held that order of Commissioner (Appeals), held to be justified . (A.Y. 2004-05)

 

Knooh Solutions (P) Ltd v. ITO ( 2012) 50 SOT 189 (Hyd) (Trib)     

 

S.92C: Avoidance of tax-Transfer pricing-Computation- Price paid by assessee to its associated enterprise  was higher than price paid by unrelated parties for purchase of similar goods  hence adjustment made by TPO held to be justified.

 

During relevant assessment year the assessee has undertaken international transactions with its associated enterprises Sri Chirag Private Ltd , Sri Lanka .The TPO has found that the price paid by assessee to its associated enterprises was higher than the price paid by unrelated parties for purchase of similar goods from Associated enterprises accordingly the adjustments were made. On appeal the Commissioner (Appeals) held that the due to increase in price in international market assessee had paid higher price , hence the  adjustment made by TPO was deleted . On appeal by revenue , the Tribunal held that  as the assessee has not proved that quoted  goods were different than the goods dealt with  associated enterprise , adjustment made by the TPO was justified .As regards the adjustment, of 5% where there is only on price , the adjustment is neither provided in statute nor justified on general consideration . Accordingly the addition made by the Assessing Officer is held to be justified. (A.Y. 2005-06)

 

Vipin Enterprises v. Addl.CIT ( 2012) 135 ITD 130 (Delhi) (Trib)

 

 

S.92C: Avoidance of tax-Transfer pricing-Computation- Benefit of proviso to section 96C(2) would be given-Comparable has to meet the criteria.

 

The assessee company is engaged in the business of processing and support and is operating 100 percent export oriented unit. During the year the assessee had entered in to international transaction, with its associated enterprises .The assessee compared the its international transaction with unrelated parties based on cost plus 5 percent pricing  model  which the assessee adopted .The analysis was done on the basis of TNMM using external comparables. The TPO held that the Turnover of the assessee with the party to which the comparison was made too insignificant to qualify as a meaningful comparable in comparison entered by assessee with its Associated Enterprises. The TPO also rejected the secondary analysis of the assessee on the ground that the financial data for 1999- 2000 and 2000-01 was applied. The TPO has made fresh search by applying filters (1) Turnover  (ii) Net  fixed assets (iii) depreciation . By using said filters searched out 9 comparables out of which further three rejected and identifying six comparable made additions of 18% by applying the operative margin to assessee’s cost , arms length price of international Transaction. On appeal the Commissioner (appeals) held that during the financial year 2001-02 the turnover of comparable of related party transaction was less than 1 percent of total turnover which cannot influence the profit margin and he also found that related party transaction in the financial data related to some advances /deposits and those receipts and payments did not form part of the sale /expenditure of the company. The Commissioner (appeals) declined to exclude that party .As regards benefit of plus minus 5 percent the Commissioner (Appeals) has held that difference of plus minus 5 percent is not in the nature of standard deduction. After discussing, the Commissioner (Appeals) held that (i) current year data was to be used for comparable analysis (ii) the filters used by TPO were correct and (ii) One of the comparable has to be rejected as the comparable turnover of medical transaction significant less than 5 crores and thus did not meet the criteria laid down by the TPO and remaining 5 comparables was computed by the Commissioner (Appeals). On appeal by revenue the Tribunal confirmed the view of Commissioner (Appeals) and gave direction to Assessing Officer  to verify the figure and if difference as computed as per direction between two remained less than 5 percent , benefit of proviso to section 92C(2) would be given to assessee and no addition would be called for.   (A.Y. 2002-03)

 

Dy.CIT v. American Express (India) (P) Ltd ( 2012) 135 ITD 211 (Delhi) (Trib)

 

S.115JA : Company-Book profit-Exempted income- While computing book profits u/s 115JA/JB, if actual expenditure to earn tax-free income not debited in P&L A/c, s. 14A cannot apply

 

For AY 2007-08, the assessee invested Rs. 10 crores in shares and units. The assessee claimed that it had incurred no expenditure to earn tax-free income though the AO & CIT (A) made a disallowance of Rs. 19.58 lakhs u/s 14A r.w. Rule 8D. Before the Tribunal, the assessee claimed that (i) Rule 8D could not apply to AY 2007-08 and (ii) No disallowance u/s 14A could be made for purposes of computing book profits u/s 115JB. Held by the Tribunal:

 

 Under the normal provisions of the Act, Rule 8D cannot apply till AY 2008-09 though the AO is at liberty to identify actual expenditure incurred to earn tax-free income & make disallowance. However, while computing book profit u/s 115JB, no actual expenditure was debited in the profit & loss account relating to the earning of exempt income. S. 14A cannot be imported into while computing the book profit u/s 115JB because clause (f) of Explanation to s. 115JB refers to the amount debited to the profit & loss account which can be added back to the book profit while computing book profit u/s 115JB of the Act. In Goetze (India) Ltd. vs. CIT (2009) 32 SOT 101 (Del) it was held that sub-sec. (2) & (3) of s. 14A cannot be imported into clause (f) of the Explanation to s. 115JA. Accordingly, it is held that no addition to book profit can be made on account of alleged expenditure incurred to earn exempt income while computing income u/s 115JB.

 

Quippo Telecom Infrastructure Ltd v. ACIT (Delhi)(Trib)www.itatonline.org

 

 

 

S.115JB:Minimum alternate tax-Book profit- Company- For the purpose computing book profit only permissible adjustments in form of additions and deductions are provided  under explanation 1 to section 115JB and no more deductions or allowance are permissible.

 

The assessee company is in the business of running a multiplex theatre. The Assessing Officer found that while computing the book profit the assessee had reduced an amount of Rs 33,11,687/- which pertained to “foreign exchange fluctuation” due to restated of term loan at the year end  , which was rejected by him . On appeal the Commissioner (Appeals) also up held the view of Assessing Officer. The Tribunal held that for the purpose of computing of “Book profit” only permissible adjustments in form of additions and deductions are provided under Explanation 1 to section 115JB and no more  deductions or allowances other than what are stated in said Explanation permissible. Accordingly the Tribunal up held the order of Assessing Officer. (A.Y. 2005-06)

 

 

 

City Gold Media Ltd v. ITO ( 2012) 134 ITD 535 (Ahd) (Trib)

 

S.115JB:Book profit-Company-Companies Act-Not crediting profit on sale of shares to profit and loss account is against the accounting policy , Assessing Officer is right in considering the profit on sale of shares to taxation under MAT provisions .(S.115J, 115JA).

 

The assessee company sold certain shares and earned the profit. The assessee has not routed the said transaction through profit and loss account but had directly credited to capital reserve account .The Assessing Officer computed the book profit by including profit on sale of shares. The view of Assessing was up held by the Commissioner (Appeals).On appeal to the Tribunal it was contended that the accounts were duly certified by auditors in accordance with the  Companies Act, the Assessing Officer has no jurisdiction to behind the net profit shown in the profit and loss account except to the extent provided under explanation to sub section (2) to section 115JB.The Tribunal held that the  not crediting the profit on sale of shares to profit and loss account was contrary  to significant accounting policy of assessee itself as well as against requirements of Accounting Standard AS-13 and requirements of Parts II and III of Schedule VI of Companies Act , 1956 ,therefore , Assessing Officer was justified in treating the profit on sale of shares, to taxation under MAT provisions of section 115JB. (A.Y. 2005-06)

 

Sumer Builders (P) Ltd v. Dy.CIT ( 2012) 50 SOT 198 (Mum) (Trib)      

 

   

 

S.115JB:Book profit- Company- Prior period expenses- There is no provision for any adjustment on account of disallowance of prior period expenses while computing book profit is not permitted .

 

The Assessing Officer while computing the Book profit added the amount in respect of prior period expense debited un the profit and loss account. The Commissioner (Appeals) up held the addition. On appeal the Tribunal held that, there is no provision for any adjustment on account of prior period expenses in Explanation 1 to section 115JB (2)  and therefore any addition on account of disallowance of prior period expenses while computing book profit is not permitted. (A.Y. 2003-04)

 

Shivshahi  Punarvasan Prakalp Ltd v. ITO ( 2012) 135 ITD 51 (Mum) (Trib)  

 

  

 

S. 115WA: Fringe benefits-Residential accommodation to managing Director- Free security deposit- Notional interest on security deposit is in nature of fringe benefit and to be added to value of fringe benefit , however , since no valuation rule has been provided in respect of such fringe benefit same  could not be subjected to tax.

 

The assessee company has provided a residential accommodation to its chairman  cum –managing director . It had taken the said premises on lease for monthly rent and had given a deposit Of Rs 5 crores  as interest  free deposit . The assessee also had borrowings to the extent of Rs 5 Crores. The Assessing Officer calculated notional interest at rate of 9 % and added same to value of fringe benefit . On appeal  before the Commissioner (Appeals) , the assessee, submitted that since no valuation was possible for such benefit ,hence the same could not be subject to FBT relying on Board Circular  No 8  dated 29-8- 2005. The Commissioner (Appeals) also confirmed the addition. On appeal to Tribunal the Tribunal held that , benefit of notional interest on security deposit is in the nature of fringe benefit under clause (a) of sub section (1) of section 115WB. However, since no valuation rule has been provided in respect of such fringe benefit, same could not be subjected to tax.(A.Y. 2007-08)

 

DP world (P) Ltd v. Dy. CIT (2012) 135 ITD 141 (Mum) (Trib)         

 

S.132(4):Search and seizure – Statement on oath-Retraction-Computation of undisclosed income- Additions made on the basis of statement held to be valid.( S.158BB)

 

In the course of search action the statement of assessee was taken under section 132(4),the assessee made admission of undisclosed income. The statement was retracted thereafter. The assessing Officer made the additions on the basis of statement under section 132(4). In appeal the First appellate authority made some modifications with regard to additions of one property which was accepted by revenue. Assessee challenged the additions confirmed by the Commissioner (Appeals). The Tribunal deleted the additions on the ground that additions cannot be made only on the ground of statement under section 132 (4). On appeal to High Court the Court held that the assessee has not proved that statement recorded under section 132 (4) was due to threat or coercion and further having failed to prove that the amounts shown in documents were the only payments made the Tribunal was not right in deleting the additions. The Court also observed that the retraction made by the assessee can only be considered as self serving afterthought and no reliance can be placed on the same to disbelieve the clear admission made in the statement.

 

CIT v. O.Abdul Razak (2012) 68 DTR 237 (Ker) (High Court)  

 

 

 

 S. 139:Assessment- Return- Below returned income- Assessment can be below the returned  income or undisclosed income.( S. 143 (3), 158BC)  

 

There is no basis for determining the undisclosed income even on the returned income offered as precautionary measure. Assessing Officer is directed to determine the undisclosed income accordingly without reference to any admitted income in the return filed under protest.

 

United Phosphorous Ltd v. CIT (2012) 67 DTR 395 (Mum) (Trib)

 

Asst.CIT v. United Phosphors Ltd (2012) 67 DTR 395 (Mum) (Trib)

 

 

 

S. 139: Assessment -Return- Loss carry forward-Loss finally determined after giving effect to order of the appellate authorities has to be carried forward.

 

Assessee filed the return of income disclosing the nil income .After giving effect to the order of appellate authorities the assessed income was loss. The assessing officer refused to carry forward the loss determined. The Tribunal held that once the loss is determined the same has to be carried forward as per section 72 of the income tax Act. The tribunal  has directed the assessing officer to allow the carry forward the loss determined after giving effect to the appellate order.(A.Y. 1999-2000)

 

Asst  CIT v. Mehsana Distric Co-Operative Milk Producers Union Ltd( 2012) 67 DTR 470/ 145 TTJ 107(Ahd) (Trib)

 

Mehsana Distric Co-operative Milk Producers Union Ltd (2012) 67 DTR 470/145 TTJ 107 (Ahd) (Trib)     

 

S. 144C:Dispute Resolution Panel- Constitution-Natural justice- Jurisdiction commissioner cannot be a member of DRP- DRP order is set aside  to pass a speaking order.

 

In Hyundai Heavy Industries Ltd v. UOI (2011) 243 CTR 313 (Uttarakhand) (High Court), the court observed that the jurisdictional Commissioner is not nominated as member of DRP, following the observation of High Court , the Tribunal set aside the order passed by the Assessing Officer . The Tribunal also held that the DRP   has not passed a speaking order in conformity with the principles of natural justice and provisions of Act , accordingly the order is set aside and is directed top pass fresh order in conformity with the provisions of  Act.(A.Y. 2007-08)

 

Lionbridge Technologies (P) Ltd v. Dy.CIT ( 2012) 144 TTJ 726 (Mum) (Trib)   

 

S.147: Assessment- Reassessment- Sanction- Sanction of commissioner instead of JCIT renders reopening is void (S.2 (28(c ),151)

 

 The Assessing Officer issued a notice u/s 148 to reopen the assessment for AY 2004-05. As no assessment had been made u/s 143(3) or s. 147 for that year and four years had expired, the AO was required to obtain the sanction of the JCIT (which included an Addl. CIT) u/s 151(2). The AO submitted a proposal to the CIT through the Addl. CIT. The Addl. CIT forwarded the proposal to the CIT and requested the CIT to grant sanction, which the CIT did. The assessee challenged the reopening inter alia on the ground that as s. 151(2) required the JCIT/Addl. CIT to grant approval, the approval of the CIT was not valid. Held upholding the challenge:

 

There is merit in the contention of the assessee that the requirement of s. 151(2) could have only been fulfilled by the satisfaction of the JCIT that this is a fit case for the issuance of a notice u/s 148. S. 151(2) mandates that the satisfaction has to be of the Joint Commissioner. That expression has a distinct meaning by virtue of the definition in S. 2(28C). The CIT is not a JCIT within the meaning of s. 2(28C). The Additional Commissioner forwarded the proposal submitted by the AO to the CIT. The approval which has been granted is not by the Addl. CIT but by the CIT. There is no statutory provision under which a power to be exercised by an officer can be exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires something to be done in a particular manner, it has to be done in that manner (SPL’s Siddhartha Ltd followed)(A.Y. 2004-05)

 

Ghanshyam K. Khabrani v. ACIT (Bom)(High Court) www.itatonline.org

 

 

 

S. 147: Assessment-Reassessment-Intimation-Once the assessment is accepted under section 143 (1),though no notice was issued under section 143 (2) ,the assessing officer can issue notice under section 147 , read with 148  of the Act subject to other conditions.

 

The assessee is an employee of M/S Tokio Marine & Nichdo Fire Ins Co Ltd .The assessee filed the return of income for the assessment year 2008-09 enclosing the form no.16 issued by the employer. Subsequently the assessee filed a revised return enclosing the revised  form no 16 , claiming the refund of taxes paid. Assessing  officer called the information from the company and after recording the  reasons issued the notice under section 148.The assessee challenged the issue  of notice under section 148 on the ground that the assessing officer failed to intimate and send the order passed under section 143(1)to the assessee and reasons recorded do not justify and are not ‘reasons  to believe”. The Court held that once the order under section 143(1) was passed, and no notice under section 143(2) has been issued, the Assessing Officer can issue notice under section 147 /148 , if preconditions are satisfied. The failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate proceedings for reopening . Since the period of service of notice under section 143 (2) after filing of the original or revised returns has expired , regular assessment proceedings under section 143 (3) can not be initiated  and the only option to Assessing Officer is to issue notice under section 148 , hence issue of notice under section 148 held to be valid.

 

Atsushi Yoshida & Ors v. Asst .CIT (2012) 67 DTR 347 (Delhi) (High Court)

 

 

S. 147: Assessment-Reassessment-Reason to believe-Non filing of return –Information from sales tax and Central Excise department constitute reason to believe and reassessment held to be valid.

 

 

 

The assessee has not filed the return of income for the asst years 1993-94, 1994-95 and 1995-96.On receipt of information and sales tax assessment orders showing huge turn over, the assessing officer issued notice under section 148 after recording the satisfaction. The assessments were completed assessing the income  for the asst year at Rs 5, 62,910, asst year 1994 -95 at Rs 7,52 160 and for asst year 1995-96 at Rs 8,90, 000 respectively. Assessee challenged the reassessment proceedings  and quantum of  addition  before Commissioner(Appeals) who up held the reassessment proceedings. On appeal before the Tribunal the Tribunal held that reopening of assessment was not valid. On appeal by revenue to High Court , the High Court  held that the Tribunal fell in to grave error of law in unduly restricting the scope of power and jurisdiction under section 147 by holding that there  is no evidence on record that the assessee earned income on huge transactions and that  assessee in similar business  incurred loss before income from other sources  during the relevant year . The Court held that the approach of  Tribunal as adopted is clearly erroneous in law because that would amount to first finally ascertain on established legal evidences for exercise of power under section 147 , that is not the object of section 147 , the condition precedent for section 147 is reason to believe and not actual and final assessment on definite material . As the assessee has not filed the return of incomes of income for the relevant assessment years and information about huge turnover  was received from the sales tax /Central Excise department very much constituted  reason to believe that income has escaped  assessment. Accordingly the order of Tribunal was set aside. ( A.Y. 1993-94 to 1995-96)

 

ITO v. Santosh Jain (2012) 247 CTR 488 ( Chhattisgarh) (High Court)

 

 

S. 147:Assessment- Reassessment-Change of opinion- Business expenditure- There was no failure on part of assessee and payment was examined by Assessing Officer hence reassessment held to be not valid.( S. 37 (1) )

 

In the course of assessment proceedings after raising specific query, the assessing officer   examined the details filed allowed the royalty payments as allowable business expenditure and passed the order under section 143 (3). The assessment was reopened on the ground that assessee had debited certain amount in its profit and loss account as royalty, however the part of said expenditure was to be considered as capital expenditure as it gave benefit which could be enjoyed over number of years . On appeal the Tribunal set  aside the order on the ground that it was based on mere change of opinion .On appeal by revenue the Court held that , there was no failure or omission on part of assessee to disclose head and quantum thereof , even the TDS certificates and other details were filed , hence on facts the assessee’s case fell in category of change of opinion as at time of original proceedings the assessing officer has examined and gone in to question of royalty . Even otherwise, if there was any legal error or illegality, same could not be rectified and be made subject matter of reassessment proceedings under section 147. Accordingly the High Court up held the order of Tribunal. (A.Y. 2000-01 and 2001-02)    

 

CIT v. Munjal Show Ltd( 2012) 205 Taxman 351 (Delhi) (High Court)

 

S.147: Assessment- Reassessment- Full and true disclosure- Notice after four years- Reassessment held to be void.

 

The assessment was completed under section 143 (3), after detailed enquiry, regarding the reimbursement of expenses allocation of fee etc. Assessing Officer issued notice for reassessment on the ground that certificate under section 197 is valid only for payments or credit made after the date of certificate for non deduction of tax, is not valid in respect of payment of Rs 1.56 crore , as the certificate was issued after the amount of Rs 1.56 crore had been credited in the books  and also amount mentioned in the certificate does not tally. The assessee challenged the issue of notice by way of writ before the High Court. The court held that the Assessing Officer has not even indicated in the reasons that have been recorded that there was any failure to disclose fully and truly all material facts and there is merit in the contention of the assessee that there was a full and true disclosure of all necessary material, therefore reopening of assessment after four years was not valid.(A.Y. 2004-05)

 

Monitor India (P) Ltd v. UOI ( 2012) 68 DTR 313 (Bom) (High Court)     

 

S. 147:Assessment-Reassesment- Within four years- Assessment for subsequent years can be the basis for issue of notice for earlier years-  Assessment Annulled for delay in issue  of notice , re assessment notice held to be valid.

 

For the assessment year 2001-02 , the assessment was completed under section 143 (3) treating the income from organizing exhibitions as business income. The Commissioner (Appeals), annulled the assessment order on the ground that the notice under section 143(2) was served after 12 months from the end of the month in which the return of income was furnished. The assessment for the assessment year  1997-98 which was completed under section 143 (1) was reopened on the basis of assessment for the  asst year 2001-02 and the assessment for the asst year 2001-02 was re opened. In appeal the commissioner (Appeals), allowed the appeal of assessee. On further appeal by revenue to Tribunal, the Tribunal up held the reassessment on the ground that information and material gathered, during the course of assessment proceedings and assessment of exhibition income for the assessment year 2001-02 , under section 143 (3), constituted tangible material for coming to the conclusion that income assessable to tax had escaped assessment. Even otherwise, the case of reopening for these two years fell under the Explanation 2(b) to section 147 , which  creates a deeming fiction. For the assessment 1997-98, there was no assessment but only the return was processed under section 143(1). Departmental appeal was allowed.(A.Y. 199-98, 2001-02)

 

Asst D.I.T.v. India ITME Society ( 2012) 14 ITR 519 (Mum) (Trib)

 

 

S. 147:Assessment-Reassessment-Supreme Court decision-Reassessment based on subsequent decision of supreme court is valid in law.

 

In the original assessment proceedings the Assessing Officer has allowed the exemption under section 10(29) after application of mind. There after the  reassessment  order was passed, both the assessee and revenue took the matter before the High Court. High Court remitted the matter back to decide on the issue of reopening of assessment. The Tribunal following the decision of the Allahabad High Court in Kartikeya International v. CIT( 2010) 329 ITR 539(All) (High Court), held that the theory of change of opinion is not applicable to the facts of the assessee as, the Assessing Officer has implementing the law of land as declared by the Supreme Court , hence the reopening of assessment held to be valid.( A.Y. 1995-96 , 1996-97)

 

Asst.CIT v. Central Warehousing Corporation ( 2012) 144 TTJ 764(Delhi) (Trib)

 

Central Warehousing Corporation v. Asst .CIT ( 2012) 144 TTJ 764(Delhi) (Trib)      

 

S. 148: Assessment- Reassessment-Validity of service of notice – Failure to mention the words “principal officer” and the specific words “private limited” is not fatal, orders cannot be vitiated on the said ground of mistake , defect or omission in summons or notice ( S. 292B).

 

 In the course of appeal before the Commissioner (Appeals) the assessee challenged that the notice issued under section 148 is bad in law as the words “private limited” were missing in the notice . After calling the remand report the Commissioner held that the order is bad in law . In an appeal by revenue the Tribunal held that section 292B would not come to the aid of the revenue as the requirement to serve the notice was a jurisdictional issue  hence the confirmed the order of Commissioner (Appeals). On appeal to high Court by revenue the court held that  the test to be applied is whether the party receiving the notice would be in doubt whether the said notice is meant for him or not .If the recipient of notice was not in doubt that it was meant for him , the misdescription is not fatal .Thus failure to mention  the words ‘‘principal officer” on the notices is not fatal. The court held that section 292B has a salutary purpose and ensures that technical objections , without substance and when there is effective compliance or compliances with intent and purpose , do not come in a way or affect the validity of the assessment proceedings .Accordingly the High Court decided the issue in favour of revenue. (A.Y. 1989-90 & 1992-93 to 1995-96)

 

CIT v. Jagat Novel Exhibitors (P) Ltd ( 2012) 67 DTR 289 (Delhi) (Trib)    

 

S. 148: Assessment- Recording of reasons- Further information-Reasons recorded cannot be supplemented by receiving further information, provisions of section 292B cannot be invoked. ( S. 292B)

 

The Tribunal found that in the reasons recorded for reopening of assessment there was no mention of Anand enterprises. Since the recording of the reasons is the foundation of initiation of proceedings under section 148, it would not be effected by the provisions of section 292B of the Act . As the reopening has been done on non existent and factually incorrect reasons and assessing Officer has not applied his independent mind and did not verify the information received from DDI (Investigation) prior to recording of reasons, the reopening of assessment held to be invalid.( A.Y. 1993-94)

 

Mahadev Trading Co v. ITO ( 2012) 135 ITD 1 (Ahd) (Trib)

 

 

 

S.153B: Assessment- Search and seizure- Limitation- Special audit- Period of required for special audit has to be excluded in terms of explanation (ii) to section 153B, and balance period  of 60 days to be considered , hence the order is not time barred.

 

 The Assessing Officer passed an order under section 142(2A), directing special audit, said order was challenged in writ petition. High Court stayed the assessment proceedings. While disposing the writ petition the court stated that time schedule fixed under the Act would apply. A special audit was directed by the Assessing Officer vide order dated 19-1-2007, which was to be completed within 105 days. The Auditor furnished its audit report on 3-5-2007. The Assessing Officer, thereafter passed its assessment order on 29-6-2007.The Tribunal held that the order was time barred. Appeal by revenue, the court held that, the period during which assessment proceedings were stayed i.e. 31-3-2006 to 18-12-2006 , had to be excluded in terms of Explanation (i) to section 153B(1), and period of 105 days required for special audit  had been gain to be excluded in terms of Explanation (ii) to section 153B. The proviso to Explanation to section 153B(1) is again became applicable and as per said proviso assessment order could have been passed on or before 3-7-2007, i.e. ,period of 60 days after special audit was to be submitted to Assessing Officer . Therefore the order of Tribunal , holding that assessment order dated 29-6-2007 as  time barred was incorrect, accordingly the order of Tribunal reversed and appeal of revenue was allowed.(A.Y. 1998-99 to 2001-02)

 

CIT v. Ulike Promoters (P) Ltd ( 2012) 205 Taxman 414 (Delhi) (High Court)   

 

S.153C: Assessment- Search and seizure-Approval of JCIT-Failure to obtain JCIT’s approval renders s. 153C assessment order is void.

 

Pursuant to search & seizure action u/s 132 on the premises of Mr. Shriram Soni, certain documents belonging to the assessee were found and seized pursuant to which a notice u/s 153C was issued to the assessee and assessment u/s 153C r.w.s. 144 were framed. In passing the assessment orders, the AO (ITO) omitted to obtain the consent of the JCIT as mandated by s. 153D. Before the Tribunal, the assessee argued that the failure to obtain the JCIT’s consent rendered the assessment a nullity. Held by the Tribunal upholding the plea:

 

 S. 153C authorises the AO to exercise jurisdiction over any person in whose case incriminating material has been found during the course of search conducted on another person. S. 153D provides that no order of assessment shall be passed by an AO below the rank of Joint Commissioner except with the prior approval of the Joint Commissioner. The fact that the heading to s. 153D refers to a “prior approval” and that it uses negative wording and the word “shall” makes the intention of the Legislature clear that compliance of s. 153D is mandatory. As the provision is mandatory, an act done in breach thereof will be invalid. Also, as the condition has been imposed in public interest, it cannot be waived by the assessee. Clause 9 of the Manual of Office Procedure also makes it clear that an assessment order under Chapter XIV-B can be passed only with the previous approval of the JCIT and that the approval must be in writing and stated to have been obtained in the body of the assessment order. Accordingly, in the absence of the JCIT’s approval, the AO had no jurisdiction to pass the s. 153C order and it was null and void (Ratnabai Dubhash (1998)230 ITR 495 (Bom) & SPL’s Siddharth followed)

 

Akil Gulamali Somji v. ITO (Pune)(Trib)www.itatonline.org

 

S.154:Assessment-Rectification of mistake- Valuation of closing stock- When the closing stock is enhanced by the Assessing Officer he has to rectify the mistake in next years opening stock and has to give consequential relief.

 

 

Assessee changed the method valuation of stock to the “cost to complete” for the Assessment year 1986-87 for determining its profits in accordance with the International and Indian Accounting Standards under which , in respect of each contract at the end of each year , the cost required to complete the contract was estimated and compared with the total value. Assessing Officer did not accept the change in the method and added value to work in progress amounting to Rs 1, 31, 88,000. The assessee has lost in appeal, however the committee has not given permission to file an appeal before High Court. The return of assessee for A.Y. 87 – 88 & 88 – 89, was accepted under section 143 (1) as per the method adopted by the assessee. Assessee  filed an application under section 154 to pass consequential relief for the Assessment years 1987-88 and 1988-89 , which was rejected by the assessing officer. The view of Assessing Officer was confirmed by the Tribunal. On appeal to high court , the court held that  it is incumbent upon the Assessing officer  to follow the same principle in the subsequent years , mistake will appear from the record of the case and there is no question of entering in to any new material for the purpose of detecting the said mistake .High Court set aside the order of lower authorities and directing the assessing officer to treat the closing stock of earlier year to treat  the opening stock of next year.(A.Y. 1987-88 to 1988-89)

 

Bridge &Roof Co (India) Ltd v. CIT ( 2012) 248 CTR 111 ( Cal) (High Court) 

 

S. 154:Assessment- Rectification of mistake –Credit for TDS-Full credit for TDS certificate must be given though inadvertently the assessee  has claimed less credit.( S.143(1),199,Rule 37BA)

 

The assessee filed the return of income along with TDS certificate of Rs 31,47,636/-. However inadvertently the assessee claimed credit for Rs 16, 67, 134 in the return of income. The return was processed under section 143(1) and only refund of Rs 1,95,554/- was issued .The assessee moved application under section 154 and claimed the refund on the basis of certificates which were filed along with the return. The Assessing Officer has rejected the claim. On appeal the Commissioner (Appeals) has allowed the claim. On appeal to the Tribunal, the Tribunal held that as per Rule 37BA credit for tax deducted at source and paid to the Central Government has to be given for the assessment year in which such income is assessable. On the facts the assessee offered the entire income which was assessed by the Assessing Officer. The Tribunal rejected the contention of revenue that the assessee should have filed the revised the return. The Tribunal confirmed the view of Commissioner (Appeal) and held that the assessee is entitled to the credit of TDS which was filed along with the return.(A.Y. 2005-06)

 

ITO v. Krishraj Hotels & Motes (P) Ltd ( 2012) 145 TTJ 118/ 68 DTR 167 (Delhi) (Trib)   

 

S. 158BC:Assessment-Block assessment- Search and seizure- Undisclosed income-Just because the cash vouchers were found additions cannot be made .There is no bar in assessing the total income or undisclosed income less than returned income.( S. 158B (b), 158BB).

 

The Tribunal held that additions cannot be made in the block assessment only on the ground that the vouchers are of unverifiable nature which cannot be considered as incriminating materials. Similarly unmoved trade debtors cannot be assessed as undisclosed income. The Tribunal also held that there is no bar in determining the total income /undisclosed income less than the returned income if facts so warrant. There is no basis for determining the undisclosed income even on the returned income offered as precautionary measure. Assessing Officer is directed to determine the undisclosed income accordingly without reference to any admitted income in the return filed under protest.

 

United Phosphorous Ltd v. CIT ( 2012) 67 DTR 395/ 144 TTJ 683 (Mum) (Trib)

 

Asst.CIT v. United Phosphors Ltd ( 2012) 67 DTR 395/144 TTJ 683 (Mum) (Trib)

 

S. 158BFA: Assessment – Block assessment-Search and seizure- Penalty- Concealment-Penalty under section is not mandatory however penalty deleted by the Tribunal was not justified.

 

In pursuance of search and seizure action the assessee filed the return of income declaring income of Rs 45 lakhs for the block period. Assessing Officer assessed the income at Rs 97.30 lakhs. In appeal before Tribunal the addition was confirmed of Rs 18.35 lakhs, which has became final. The assessing Officer levied the penalty of Rs 11.06lakhs, which was confirmed by the Commissioner (Appeals). On appeal to the Tribunal the Tribunal deleted the penalty. On appeal by revenue to High Court , the Court held that penalty corresponding to addition of Rs 17.22 lacs was deleted on the ground that the assessee had demonstrated that there was estimation of additions and therefore penalty could not be levied . The Court held that in the absence of requirement to prove concealment or furnishing of inaccurate particulars found in section 271 (1)(c) of the Act cannot form the sole basis to delete penalty imposed by the Assessing Officer. The matter was restored the Tribunal to determine the matter for fresh consideration.

 

CIT v. Becharbhai P. Parmar ( 2012) 248 CTR 86/67 DTR 367 (Guj) (High Court)    

 

S.194C:Deduction at source- Contractor- Sub –contractor- Assessee is supplying technical knowhow and product manufactured in brand name of assessee , contract for work, liable  to deduct tax at source.

 

Assessee is marketing pharmaceutical products. Assessee and supplier are interrelated, assessee supplying technical knowhow and products manufactured in brand name of assessee. The Assessing officer held that the assessee is required to deduct tax at source. On appeal Commissioner (Appeals) and Tribunal held that assessee is not required to deduct tax at source. On appeal by  revenue the High Court held that looking at the rear nature of transaction and reading the all three agreements together ,the provisions of section 194C of the Act is applicable and  the view of Assessing Officer is justified and appeal of revenue  was allowed.(A.Y. 1997-98)

 

CIT v. Nova Nordrisk Pharma India Ltd ( 2012) 341 ITR 451 (Karn) (High Court)      

 

S.194C: Deduction at source- Contractor- Sub –contractor- Where lorries and trucks are hired for its own use TDS is not required to be deducted hence amount cannot be disallowed.(S.40(a)(ia).

 

On the facts of the case the assessee has hired the Trucks / lorries for transporting of the consignment booked by it under its own supervision and control with all responsibility and liabilities. Therefore hiring of Truck and lorries cannot be called to be work as per definition given in explanation 3 of section 194C of the Act, hence the assessee is not liable to deduct tax at source.( A.Y.2005-06)

 

Kranti Road Transport (P) Ltd v. Asst.CIT (2012) 50 SOT 15 (Visakhapatnam )(Trib)     

 

S.194H: Deduction at source-Commissioner-Brokerage- Derivatives are securities therefore tax at source is not deductible.(S. 40(a)(ia))

 

Tribunal held that as per definition of derivative in section 2 sub section (ac) read with Section 2 of sub section (h) (ia) the derivates are securities and therefore covered by the exception provided in Explanation (1) to Section 194H. Hence the brokerage paid cannot be disallowed under section 40(a) (ia). Therefore tax at source is not applicable (A.Y. 2005-06)

 

Deputy CIT v.Noble Enclave & Towers (P) Ltd ( 2012) 50 SOT 5 (Kol) (Trib)

 

 

 

S.195:Dedcution at source- Non –resident-Permanent establishment- Fees for technical services- Assessee is liable to deduct tax at source as there exists a service PE-DTAA-India-UK-Canada.( S.9 (I)(vii),90, Art. 5.2)

 

 Applicant , an Indian company , is a subsidiary of an overseas entity for co-ordinating  the services of various vendors in India to whom it has outsourced some activities needed by it . Overseas  entity deputed or seconded some of its employees to the applicant to render their services in India . The salaries were paid by overseas entity. The applicant has reimbursed the remuneration paid by the overseas entity .The Authority for Advance Ruling held that since the employees are rendering services to their employer in India by working for a specified period for subsidiary or associate enterprise of their employer , there exists a service PE within the meaning of Article 5.2 of the Indo –UK. DTAA and Indo-Canada DTAA, therefore income is deemed to accrue or arise in India and the applicant is liable to deduct tax at source under section 195.

 

Centrica India Offshore (P) LTD , In re ( 2012) 68 DTR 297 (AAR)   

 

S.199:Dedcution at source- Credit for tax deducted- Income assessed-Assessee is entitled to credit on TDS certificate only in the assessment year in which income on which tax is deducted is assessed.

 

The  assessees were holding cumulative terra deposits in banks entitling them for interest on deposits which was periodically credited by the bank in the deposit account . As required under section 194A the bank recovered tax at source on interest credited in the deposit account of the assessees. Assessees claimed credit of tax based on TDS certificates issued by Banks however the interest income was not offered to tax. Assessing officer has not allowed the credit for tax deducted .Before Commissioner (Appeals) it was contended that only TDS deducted may be assessed as income for the relevant year and entitled to refund of balance amount of tax deducted. Commissioner (Appeals) held that even if interest is not assessable in the assessment years concerned the assessees are entitled to credit for tax deducted at source in the assessment years relevant previous years during which recovery of tax and remittance of the same was made to banks  . On appeal filed by the revenue the Tribunal held that the assessees are entitled to full credit of tax in the assessment years concerned , no matter interest income on which deduction has been made is not returned or assessed in those assessment years . On appeal by revenue to High Court , the High Court held that as per section 199 read with Rule 37BA , assessee is entitled to credit based on TDS certificate in the assessment year in which income from which tax is deducted is assessed. Accordingly the departmental appeal was allowed.( A.Y.1997-98 to 2000-01)

 

CIT v. Pushpa Vijoy (Smt) & Ors (2012) 67 DTR 354 (Ker) (High Court)          

 

S. 201: Dedcution at source-Consequences of failure  to deduct or pay- Assessee in default- Limitation of four years-Order of  Tribunal set aside to decide in accordance with law.

 

  Assessee did not deduct the tax as required under section 192 of the Act for the Assessment years 1994-95 to 1997-98. Assessing Officer passed the order under section 201(1) and 201(IA) on 20th December, 2005 .On appeal the Commissioner (Appeals) dismissed the appeal of assessee. On further appeal to Tribunal the Tribunal held that Assessing Officer was not empowered to issue a show cause notice after a period of four years from the end of the financial year .Accordingly the Tribunal quashed the order. On appeal by revenue the Court held that “It is true that a principle has been laid down in State of Gujarat v. Patil Raghav Natha (1969) 2 SCC  187 , while dealing with suo  motu revisional jurisdiction that though there is no period of limitation prescribed of that power , still such a power must be  exercised with in reasonable time. The said judgment has been applied in matters relating to section 6 of the Land Acquisition Act in a large number of cases , which were all referred to in recently in RamChand v.UOI (1994) 1 SCC 45. In our view , this line of cases  can not ordinarily apply to monies with held by a defaulter , who holds them in trust”. The Court held that in the absence of  limitation period prescribed for taking action under section 201 , Tribunal erred in holding that period of four years was the reasonable period to issue of show cause under section 201 by the Assessing Officer to assessee. The Court set aside the order of Tribunal.(A.Y.1995-96)

 

CIT v. H.M.T. Ltd ( 2012) 248 CTR 103/67 DTR 405(P&H) (Court)

 

 

S. 206C:Collection of tax at source-Scrap- Manufacture-Manufacture Fluorine and Refrigerant- Scrap not connected with manufacture section 206C(6) is not attracted.

 

The assessee is engaged in the manufacture of fluorine and other refrigerant gases. It had received payments on account of sale of  scrap .The  assessee had not collected tax at  the time of receipt of the sale proceeds or at the time of debiting the account of purchasers. The Assessing Officer issued a show cause notice to the assessee to raise the demand for tax under section 206C(6) and interest under section 206C(7).The assessee submitted that the scrap sold by the assessee was plastic , drums, wooden scrap generated in the assessee’s premises did not raise from manufacturing of product dealt with  by the company and therefore provisions of section 206C were not attracted .The Assessing Officer did not agree with the submission of assessee and held that the provision is applicable , which was confirmed in appeal by Commissioner (Appeals) . On appeal, the Tribunal held that the scrap sold by the assessee was not connected with manufacturing or mechanical working of material of fluorine and other refrigeration gasses , hence the provision of section 206 is not applicable hence no interest could be charged under section 206C (7), accordingly the appeal of assessee was allowed. (A.Y. 2009-10, 2010-11)

 

Navine Flourine International Ltd v. Asst.CIT ( 2012) 14 ITR 481 (Ahd) (Trib)        

 

S. 220:Collection and recovery – Stay –Guidelines- Guidelines laid down on how stay applications should be dealt with.

 

 The assessee, a mutual fund, was a beneficiary of a trust named India Corporate Loan Securitisation Trust which was set up for securitising a loan of Rs.300 crores by issue of Pass through Certificates (PTCs). The assessee had subscribed to the PTCs and its beneficial interest was proportionate to the PTCs subscribed. The Trust received interest of Rs.21.49 crores in respect of a loan and distributed the income to its beneficiaries in their respective shares. The AO passed an assessment order on the trust in the capacity of an AOP. Though a stay application was filed, the AO, without disposing of the stay application, demanded that 50% of the demand be paid. He also directed the assessee to pay Rs. 9.63 crores on the ground that it was a member of the AOP (Trust) and was jointly and severally liable in respect of the demand against the AOP. The assessee filed a stay application which was disposed of by the AO on 9.3.2012 (received by the assessee on 13.3.2012). On 12.3.2012, the AO attached the assessee’s bank account u/s 226(3). The assessee filed a Writ Petition pointing out that the action had been in pursuance of the CBDT Chairman’s letter dated 7.2.2012 promising postings commensurate with tax recovery. Held by the High Court:

 

 The Revenue has made an unfortunate and hasty attempt to make a recovery of the demand without enabling the assessee to take reasonable recourse to the remedies available in law. The assessee filed a stay application before the AO on 7.3.2012 and moved the CIT on 9.3.2012. Before service of the order rejecting the stay application, the assessee’s bank account was attached on 12.3.2012. Administrative directions for fulfilling recovery targets for the collection of revenue should not be at the expense of foreclosing remedies which are available to assessees for challenging the correctness of a demand. The sanctity of the rule of law must be preserved. The remedies which are legitimately open in law to an assessee to challenge a demand cannot be allowed to be foreclosed by a hasty recourse to coercive powers. AOs & appellate authorities perform quasi-judicial functions under the Act. Applications for stay require judicial consideration. Rejecting such applications without hearing the assessee, considering submissions and indicating at least brief reasons is impermissible. In KEC International(2005 ) 251 ITR 158 guidelines regard to the manner in which applications for stay should be disposed of have been laid down. Unfortunately these guidelines are now being breached by the Revenue. In Coca Cola India (2006)285 ITR 419 the conduct of the Revenue was deprecated. In attaching bank accounts even before communicating the order passed the following guidelines should be borne in mind for effecting recovery:

 

1. No recovery of tax should be made pending

 

(a) Expiry of the time limit for filing an appeal;

 

(b) Disposal of a stay application, if any, moved by the assessee and for a reasonable period thereafter to enable the assessee to move a higher forum, if so advised. Coercive steps may, however, be adopted where the authority has reason to believe that the assessee may defeat the demand, in which case brief reasons may be indicated.

 

2. The stay application, if any, moved by the assessee should be disposed of after hearing the assessee and bearing in mind the guidelines in KEC International;

 

3. If the Assessing Officer has taken a view contrary to what has been held in the preceding previous years without there being a material change in facts or law, that is a relevant consideration in deciding the application for stay;

 

4. When a bank account has been attached, before withdrawing the amount, reasonable prior notice should be furnished to the assessee to enable the assessee to make a representation or seek recourse to a remedy in law;

 

5. In exercising the powers of stay, the ITO should not act as a mere tax gatherer but as a quasi judicial authority vested with the public duty of protecting the interest of the Revenue while at the same time balancing the need to mitigate hardship to the assessee. Though the AO has made an assessment, he must objectively decide the application for stay considering that an appeal lies against his order: the matter must be considered from all its facets, balancing the interest of the assessee with the protection of the Revenue.

 

UTI Mutual Fund v. ITO (Bom) (High Court) www.itatonline.org

 

S.220: Collection and recovery-Power-Reduction of period-Power under S. 220(1) proviso to reduce period for payment of tax to be exercised after application of mind and   recording reasons

 

 The Assessing Officer has passed an order under section 143(3) on 9.3.2012 raising a demand of Rs. 36.56 crores and directed the assessee to pay the entire demand within 7 days even though the period specified in 220(1) is 30 days. The assessee filed a stay application u/s 220(6) on 12.3. 2012 which was rejected on the ground that it did not fall within the guidelines framed in the CBDT’s instruction No.1914 issued by the CBDT. The assessee approached the CIT pointing that there was no justification to demand payment within 7 days while s. 220(1) granted 30 days and that as there was already a provisional attachment, there was no determinant to the revenue. The CIT rejected the application and the AO attached the assessee’s mutual fund investments s. 226(3). The assessee filed a Writ Petition. Held by the Court:

 

 The Proviso to s. 220(1) which empowers the AO to demand payment within a period lesser than 30 days with the prior approval of the JCIT cannot be exercised casually and without due application of mind. The AO & JCIT must apply their mind on how it would be detrimental to the interests of the Revenue to allow the full period of 30 days and record reasons. The reasons & approval must be made available to the assessee if he seeks them. On facts, as there was already a provisional attachment u/s 281B attaching the assessee’s mutual funds to the extent of Rs.36.54 crores, there would have been no basis for forming the reason to believe that allowing the period of 30 days would be detrimental to the Revenue. Merely because the end of the financial year is approaching that cannot constitute a detriment to the Revenue. The detriment to the Revenue must be akin to a situation where the demand of the Revenue is liable to be defeated by an abuse of process by the assessee. There is absolutely no justification for the AO to demand payment in 7 days and his action is highhanded and contrary to law.

 

Firoz Tin Factory v. ACIT (Bom)(High Court)www.itatonline.org

 

S.220:Collection and recovery-Stay –Reasoned order-  Assessing Officer must pass reasoned order to deal with stay applications

 

 The AO passed an assessment order raising a demand of Rs.5.76 Crores. The assessee filed a stay application stating that the CIT (A) had heard the appeal and stay of demand be granted till the order on the appeal. The AO rejected the stay application and directed that the demand be paid without giving any reasons. The assessee approached the Addl CIT who noted that as the AO had already started recovery proceedings, there was no point before him to consider. The assessee’s bank accounts were attached u/s 226(3). The assessee filed a Writ Petition. Held by the Court:

 

 In several judgments of this Court, the parameters for the exercise of jurisdiction u/s 220(6) of the Act have been spelt out. In KEC International Ltd. v. B.R. Balakrishnan(2001) 251 ITR 158, the importance of reasoned orders being passed on the stay applications was emphasized. The AOs consistently refuse to follow the law laid down in the judgment of this Court. The AO & the appellate authorities are duty bound to act in accordance with binding precedent and there is no reason or justification to act in the manner in which the applications for stay have been disposed of in this case.

 

Tata Toyo Radiators Pvt Ltd v. UOI (Bom) ( High Court)www.itatonline.org

 

S.220: Collection and recovery- Stay- Guidelines-Assessing Officer and Appellate authorities are not mere tax gatherers; have duty to be fair to the assessee.

 

The assessee, a professional, offered income of Rs.19.41 crores. The AO passed an assessment order u/s 143(3) assessing the total income at Rs.22.43 crores and raised a demand of Rs.1.18 crores. The assessee filed a stay application before the CIT (A) who directed that a refund of Rs. 78 lakhs due for a subsequent year be adjusted and the balance of Rs.41 lakhs be paid. The CIT (A) held that considering “the financial status and affairs” of the assessee, the payment of the balance demand would not cause financial hardship. The assessee filed a Writ Petition to challenge the rejection of the stay application. Held by the Court allowing the petition:

 

 The power which is vested in the AO u/s 220(6) and on the CIT (A) to grant a stay of demand is a judicial power. It is necessary for both the AO as well as the appellate authorities constituted under the Income-tax Act to have due regard to the fact that their function is not merely to act as tax gatherers, but equally as quasi judicial authorities, they owe a duty of fairness to the assessee. This seems to be lost sight of in the manner in which the authority has acted in the present case. The parameters for the exercise of the jurisdiction to grant a stay of demand has been set out in several judgments of this Court, including in KEC International vs. B.R. Balakrishnan(2001) 251 ITR 158. The assessee’s submissions on merits require consideration. The CIT (A) ought to have devoted a more careful consideration to the issue as to whether a stay of demand was warranted. As out of a total demand of Rs.1.18 crores, Rs.78 lakhs has been adjusted, the balance has to be stayed.

 

Nishith Madanlal Desai v. CIT (Bom)( High Court)www.itatonline.org

 

   

 

S. 220:Collection and recovery-Power- Guidelines-Assessing Officer  reminded that he is not mere “tax gatherer” and  cautioned to follow guidelines for recovery of tax

 

 The assessee, a public charitable trust, filed a ROI returning Nil income. The AO passed a s. 143(3) assessment order holding that the assessee was not eligible for s. 11 exemption on the ground that the receipt of donations by it amounted to a commercial activity and assessed its total income at Rs. 3.51 crores. The assessee filed an application for stay u/s 220(6). Without dealing with the stay application, the AO directed the assessee to pay the demand within 3 days and threatened coercive proceedings in the event of failure. The assessee filed an application before the DIT who directed it to pay 50% of the demand by March 2012 and the balance in installments. No reasons were given on why the stay application was not acceded to. The assessee filed a Writ Petition to challenge the direction: Held by the High Court:

 

In the present case, as in several cases which have come up before this Court and particularly in the month of March, it is evident that the AO & DIT have both had scant regard to the parameters which have been laid down by this Court for disposal of stay applications in KEC International Ltd (2001)251 ITR 158 & UTI Mutual Fund. No reasons are indicated. The orders do not contain a prima facie evaluation of the issues which would arise in appeal. In UTI Mutual Fund, this Court was constrained to issue a cautionary observation to the effect that AOs and Appellate Authorities, when they dispose of applications for stay, act as quasi judicial authorities and not merely as tax gatherers of the Revenue. While they have a duty of protecting the interests of the Revenue, they need to mitigate the hardship to the assessee and applications for stay must be considered objectively. The assessee does have serious issues to be urged before the CIT (A) and the AO & DIT ought to have granted a complete stay of demand u/s 220(6)

 

Rajasthani Sammelan Sarvoday v. ADIT (Bom) (High Court) www.itatonline.org

 

 

 

S.220:Collection and recovery-Power-Extralegal steps- Assessing Officer  should not adopt “extra legal steps” of threatening or inducing the assessee for tax recovery.

 

 The assessee won Rs. 25 lakhs in “Kaun Banega Crorepati”. On receipt of the prize money by the assessee from Star Plus, the AO issued a notice u/s 208 directing her to pay advance-tax. Though the assessee claimed that the prize was not taxable, the AO deputed an Inspector and wrote a letter in which he threatened the assessee that 300% penalty would be levied and prosecution launched and that the assessee would have no defence. He also assured that upon receiving clarification from the CBDT, the advance-tax would be refunded with interest. Based on the threats of the AO, the assessee paid advance-tax of Rs. 7.55 lakhs. In the s. 143(3) order, the AO held that the prize money was taxable u/s 2(24) (ix) even though the amendment to tax TV game shows was inserted w.e.f. 1.04.2002. The CIT (A) accepted that s. 2(24)(ix) did not apply but held that the prize money was chargeable as “income from other sources”. The Tribunal upheld the AO’s stand that the winnings were taxable u/s 2(24)(ix). The High Court remanded the matter to the Tribunal for reconsideration pursuant to which the Tribunal allowed the assessee’s appeal and dismissed the department’s appeals. The department filed an MA before the Tribunal which was also dismissed and no further appeal was filed by the department. In giving effect to the Tribunal’s order, the AO treated the winnings as “income from other sources” despite the Tribunal decision that the assessee’s appeals were allowed. The assessee filed a Writ Petition to challenge the AO’s effect order. Held:

 

The AO’s action of assessing the award as income shows utter disregard to the order of the Tribunal and lacks judicial propriety which is not expected from the AO who is subordinate to the Tribunal. The AO’s action of threatening the assessee with penalty and prosecution and deputing his inspector to collect the advance-tax is certainly not a healthy practice. In order to gain faith of the assessees and create confidence in the minds of the tax payers and for smooth administration of tax law, the Revenue authorities must act in a fair and legal manner. Every action of the State and its instrumentality should be fair, legitimate and above board and without any affection or aversion. The Government cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the Government, the Government should take appropriate steps, but it should not take extra legal steps or adopt the course of maneuvering. Because of discontentment, it is necessary to provide guidelines for just exercise of the power of Revenue authorities. To prevent the abuse of power and to see that it does not become a new despotism, courts are gradually evolving the principles to be observed while exercising such power. New problems call for new solutions.

 

Lopamudra Misra v. ACIT (Orissa)( High Court)www.itatonline.org

 

 

 

S.220:Collection and recovery- Stay- Prima facie case- If prima facie case is in favour Of the assessee, full demand should be stayed.

 

 The AO raised a demand u/s 201 on the ground that the assessee ought to have deducted TDS u/s 194-I instead of u/s 194C. The assessee filed a stay application before the CIT (A) who observed that the there was “enough strength in the plea of the assessee for stay of demand” but directed that 30% of the demand be paid. The assessee file a Writ Petition on the ground that as the CIT (A) had formed a prima facie opinion in favour of the assessee, he ought to have stayed the entire demand and not directed deposit of 30% thereof. Held by the High Court:

 

 While it is true that on merely establishing a prima facie case, interim order of protection should not be passed, if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. As the CIT (A) had himself expressed opinion in the order that there is enough strength in the plea of the assessee for stay of the demand, there was no occasion to direct for deposit of 30 percent. The assessee is entitled to stay on furnishing adequate security (Dunlop India (1985) 154 ITR 172 (SC) & Pennar Industries followed)

 

L.G. Electronics India Pvt. Ltd v. CIT (All)(High Court)www.itatonline.org

 

 

 

S. 245R: Advance rulings-Application- Return filed-Application after filing of return- Date of filing of return is the relevant date to consider the applicability of the proviso to section 245R (2) hence application was held to be barred.

 

The applicant filed the return of income under section 139(1) of the Act on 30th September , 2009 . The transaction based on which rulings on various questions are sought, was entered in to on 24th  Nov , 2008 . The application for advance ruling was filed on 21st May 2010.The Authority  for advance ruling held that by filing a return , an assessee invites adjudication on all the questions arising out of that return and, therefore if the answer to the question arising before the Authority for advance ruling is involved in the return filed or would arise out of return , bar of proviso to section 245R(2) is attracted , hence the date of filing of return is the relevant date to consider the applicability of the proviso to section 245R(2), accordingly the application was held to be barred and  dismissed.

 

Wave Field Inseis ASA, In re.( 2012) 248 CTR 27 (AAR)   

 

S.246A:Appeal- Income-Salary –Performance incentive-Same income cannot be assessed twice, and  claim of assessee has to be allowed as mistake apparent on record , though the income was offered by assessee in the return of income, the appeal is maintainable .(S. 4,139.154).

 

The assessee while filing the return for the assessment year 2007-08 in addition to regular income also admitted a sum of Rs.4,28,750/-  as performance incentive from his employer . The assessment was completed under section 143(3), which was accepted by the assessee. In the assessment year 2008-09 after going through the TDS certificates, the assessee realized that the correct assessment year should be assessment year 2008-09 and offered for taxation in the Assessment year 2008-09, which was accepted by the tax department. The assessee filed an appeal to Commissioner (Appeals) for the assessment year 2007-08, which was dismissed by Commissioner in limine as appeal is not maintainable. The assessee preferred an appeal before the Tribunal. As there was difference of opinion the matter was referred to third member. The third member held that the Act does not authorize levy of tax on same amount more than once, therefore

 

When amount of performance incentive had been assessed for assessment year 2008-09 , assessment of same amount for impugned assessment year 2007-08 was a mistake apparent on records. Accordingly the claim of assessee was allowed.( A.Y 2007-08)

 

R. Natarajan v. Asstt.CIT( 2012) 135 ITD 55 (Chennai) (TM ) (Trib)     

 

 

 

S.253(2):Appellate Tribunal-Power-Small tax effect- CBDT instruction no 5 dt. 15th May , 20008 is applicable prospectively-After setting off the loss the assessed income was nil, departmental appeal was dismissed.

 

Revenue has filed an appeal before the Tribunal in respect of excess claim of depreciation of Rs 4,09, 769 and disallowance of interest of Rs 14, 57, 534. Assessee contended that the assessed income was nil after setting off the carried forward losses . As the returned income and assessed income being nil , instruction no 2 dt.24th October, 2005 is applicable as the tax effect is less than 2lkah appeal of department is not maintainable. The Tribunal accepted the contention of assessee and dismissed the appeal of revenue.(A.Y. 2002-03)

 

ITO v. Speciality Coatings & Lamination Ltd ( 2012) 144 TTJ 532 (Delhi) (Trib)

 

S. 254(2): Appellate Tribunal- Mistake apparent from the record-Shortness of order-Shortness of order cannot be held to be mistake apparent from the record.

 

Assessee has filed an appeal before the Tribunal against the order of Commissioner (Appeals) , before the Tribunal. The only disputes before the Tribunal was whether activity of assessee hiring of one of financing loans for interest within the meaning of Interest –tax Act, 1974. The Tribunal decided the matter against the assessee .Before the Tribunal the ground no 5 was questioning the action of commissioner (Appeals) in ignoring evidence and case laws adduced before him. The Tribunal dismissed the ground by observing that the ground is general in nature. Assessee filed application for rectification of mistake. As there was difference of opinion the matter was referred to third member. The Third member held that, while passing the order member should have given reasons why it considered the ground no 5 is general in nature, but it could not be said that the ground no was not disposed of by the Tribunal , On examining the issue as a whole, only question before the Tribunal was whether interest in question is liable to be taxed under interest -tax  Act , 1974 . Therefore shortness of order of itself does not negate fact of disposal of issue involved, therefore the ground no 5 should be taken to have been disposed of in effect and substance and  Tribunal’s order did not require to be recalled , hence miscellaneous application was dismissed.( A.Ys 1994-95 to 1999-2000)

 

S.E. Investments Ltd  v. Asst.CIT ( 2012) 134 ITD 81/68 DTR 257(Agra)( TM ) (Trib)

 

 

 

S.255(4):Appellate Tribunal-Binding order-Third member- Bench cannot refuse to give effect to third member’s opinion.

 

 The Tribunal had to consider whether certain amounts could be assessed as cash credits u/s 68 and whether certain expenditure incurred by the assessee could be allowed as a deduction. The Judicial Member decided both issues in favour of the assessee while the Accountant Member decided both issues in favour of the department. The Third Member agreed with the opinion of the JM and decided both issues in favour of the assessee. At the stage of giving effect to the opinion of the Third Member, the JM passed an order in conformity with that of the Third Member. However, the AM observed that it is not possible to give effect to the order of the Third Member on the ground that the order of the Third Member was contrary to his own expressed opinion and that he had not considered various points of differences arising from the dissenting orders. He accordingly framed certain new questions on the merits of the dispute and directed that the matter be referred back to the President. The JM did not agree and raised the issue whether the Members of a Bench could comment on the order of the Third Member instead of merely passing a confirmatory order in terms of s. 255(4). This was referred to the Special Bench. Held by the Special Bench:

 

After the Accountant Member passed the order formulating the questions for reference to the Third Member, he became functus officio. The opinion expressed by the Third Member was very much binding on the AM and he was bound to follow the opinion of the Third Member in its true letter and spirit. It was necessary for judicial propriety and discipline that the Member who is in minority must accept as binding opinion of the Third Member. The AM had no power to formulate new questions at the stage of giving effect to the opinion of the majority and his action was not sustainable in law.

 

Tulip Hotels Pvt. Ltd v. DCIT (Mum)(SB)(Trib)www.itatonline.org

 

 

 

S.260A:Appeal to High Court- Tax effect-Circular-Low Tax Effect Circular is retrospective and  department must Show “Cascading Effect” hence appeal of revenue less than 10 lakhs tax limit was dismissed.

 

 The department filed an appeal in the year 2010 where the tax effect was Rs. Rs.6, 69 lakhs. The issue raised was whether deduction of interest payment on funds introduced in the firm, (in the form of loan), could be allowed against remuneration received from the firm. In response to the point whether Instruction No.3 of 2011 dated 9.2.2011 issued by the CBDT which states that appeals should not be filed where the tax effect was less that Rs. 10 lakhs, the department argued that (i) as the appeal had been filed prior to the issuance of the circular, the circular did not apply and (ii) as the appeal had a “cascading effect” involved a “common principle”, the appeal could not be dismissed in view of the Supreme Court’s verdict in Surya Herbals. Held dismissing the appeal:

 

 In CIT vs. Polycott Corp (1982)138 ITR 144 (Bom) & CIT vs. Vijaya V. Kavekar, it was held that Circular No.3 of 2011 has retrospective operation and applies even to pending cases. As regards Surya Herbals, the appeal does not involve any “cascading effect” as the department has not shown whether there are other appeals which raise the same point.

 

CIT v. Varsha Dilip Kohle (Bom)( High Court)www.itatonline.org

 

 

 

S. 260A: Appeal to High court- Small tax effect-Circular- Appeal is maintainable if substantial question of law is involved.

 

On the facts of the case all appeals were filed in May 2005 and September, 2007 therefore Circular of board issued in 2005 has to be considered. As per the circular if substantial question of law is involved regardless of fact that amount of tax involved was less than 4 lakhs appeals are maintainable ( A.Y. 1997-98 TO 2000-01 )

 

CIT v. Pushpa Vijoy (Smt)& Anr ( 2012) 67 DTR 354 (Ker) (High Court)

 

 

 

S.260A:Appeal to  High Court- Substantial question of law- At the time of hearing -High court can formulate  other substantial questions of law not only formulated earlier but also other substantial questions of law not formulated  by it t can hear such questions on reasons to be recorded .

 

The High Court has admitted and formulated the questions only in respect of two items. At the time of arguing the matter the assessee contended that other issues though not admitted may be allowed to argue the matter on substantial question of law. The court held that if the court satisfies that the case involve s not only the substantial question of law formulated but also other substantial question of law not formulated by it , it can hear such questions on reasons recorded.(A.Y.1999-2000)

 

Indian Additives Ltd v. Dy.CIT (2012) 67 DTR 389 (Mad) (High Court)    

 

 

 

 

 

S.263: Revision of orders prejudicial to revenue—Allocation of expenses-Agricultural cess- Revision held to be valid in respect of research and development expenditure. Revision held to be not proper in respect of allocation of agricultural cess on green leaves, agency commission and interest.

 

The Assessing Officer passed the order under section 143(3) , restricting the deduction claimed under section 80I, 80IA, and 80HH. The Commissioner of income-tax revised the order under section 263 on the ground that allocation of expenses in respect of R&D revenue expenditure, R&D capital expenditure, interest paid agency commission etc. The Commissioner held that the interest and agency commission which relate to the whole of the business, would have to be allocated to the eligible units. According to the assessee cess green leaves was a part of the expenditure incurred in the business of growing and manufacturing of tea. Commissioner in his order relying on the Gauhati High Court while coming to the conclusion that cess green leaves was liable to be claimed entirely against agricultural income. The assessee has filed an appeal before the Tribunal, against the order of Tribunal. Tribunal held that revision order is not justified. On appeal to High court by revenue, the court held that every kind of mistake or error of the Assessing Officer cannot warrant the exercise of jurisdiction under section 263 and it is only when an order is erroneous that the section would be attracted. Accordingly the Court held that the Tribunal was not justified in setting aside the entire order of Commissioner. The Court partly confirmed the order of Commissioner. (A.Y.1998-99)         

 

CIT v.Hindustan Lever Ltd ( 2012) Vol 114(2) Bom.L.R. 0807(High Court)

 

S.271 (1) (c ): Penalty –Concealment-Revised return-Penalty for concealment is leviable though the income was offered in pursuance of notice under section 148.

 

The assessee filed a ROI offering Rs. 4.68 lakhs which was assessed. Subsequently, the AO issued a s. 148 notice claiming that cash credits of Rs. 4.50 lakhs had to be assessed. The assessed filed a ROI pursuant to the s. 148 notice in which it offered the said cash credits as income and the assessment was finalized on that basis. In the s. 271(1)(c) penalty proceedings, the assessee claimed that it was not liable for penalty on the ground that (i) the income offered in the ROI was accepted without any addition and so there was no concealment as per the ROI; (ii) the cash credits were offered as income to buy peace & (iii) that the AO had not recorded satisfaction that the assessee had concealed the income. The CIT (A) & Tribunal accepted the assessee’s claim. On appeal by the department to the High Court, held  reversing the lower authorities:

 

The ROI filed pursuant to a s. 148 notice is not ‘voluntary’ & it can be readily inferred that the assessee had not furnished full particulars of his true income and so reopening became necessary. The explanation that the income was offered to buy peace is not acceptable because it is a clear case of admission of not offering true income earlier. If it had not been for the reopening, the income would have escaped assessment. When the assessee admits, by offering additional income in the s. 148 ROI, that the earlier ROI did not disclose the true income, there is no burden on the department to show concealment.

 

CIT v. Sangameshwara Associates (Karn)( High Court)www.itatonline.org

 

 

 

S. 271(1)(c):Penalty –Concealment-Disallowance of claim-Disallowance of claim under section 80HHC , penalty cannot be levied as the issue is debatable.

 

Assessee has made full disclosure of claim  under section 80HHC in respect of job work charges , which was certified by chartered accountant . The fact that the claim was not allowed on merits does not mean that assessee has concealed the income. The issue being debatable penalty for concealment confirmed by the Tribunal was deleted by High Court.

 

Geeta Prints (P) Ltd v. Asst. CIT( 2012) 247 CTR 620 (Guj) (High Court) 

 

S. 271(1)(c): Penalty –Concealment- Depreciation-Claim of depreciation on no –compete fee deduction under section 10A in respect of foreign exchange expenditure , levy of penalty was not justified.

 

Assessing officer levied penalty for concealment in respect of depreciation claim on non-compete fee and for not correctly claiming deduction under section 10A on foreign exchange expenditures from export turnover. On appeal the commissioner (Appeals) held that  the as regards the deduction under section 10A, the Tribunal has itself decoded in favour of assessee  and as regards depreciation merely because the assessee had made a claim of depreciation the levy of penalty was not justified. In appeal by the revenue, the Tribunal confirmed the view of Commissioner (Appeals).(A.Ys 2002-03 and 2003-04)

 

Asst CIT v. Pentasoft Technologies Ltd ( 2012) 134 ITD 567/145TTJ 99 (Chennai) (Trib)

 

 

 

S. 271(1)(c):Penalty- Concealment-Revised return-Revised return after issue of notice under section 153A,levy of  penalty held to be justified .

 

Assessee filed the return of income under section 139(1). There was search and seizure action . Assessee obtained the zerox copies of seized documents however in response to notice under section 153A, the assessee filed return of income which was disclosed earlier without disclosing  any additional income. After several notices and after issue of notice under section 142(1) , the assessee filed a revised return disclosing the additional income which was accepted by the Assessing Officer. The Assessing officer levied penalty in respect of additional income disclosed in the revised return. Commissioner (Appeals) deleted the penalty. On appeal to the Tribunal by revenue the Tribunal held that assessee has filed revised  return  only after the Assessing Officer had established that the assessee’s books of account are incorrect and false and payments claimed to have been made by cheque and debited to the accounts are also held to be false . The tribunal held that it cannot be accepted that the disclosure of the additional income  in the revised return was voluntary and in good faith to buy peace with department , therefore levy of penalty was held to be justified.( A.Y. 2004-05 and  2005-06)     

 

Dy. CIT v. Sushma Devi Agarwal (2012) 67 DTR 430/ 144 TTJ 567 (Kol)( TM ) (Trib)

 

DY.CIT v. Monika Devi Agarwal (2012) 67 DTR 430/144 TTJ 567 (Kol) (TM ) (Trib)

 

S.271AA: Penalty-Transfer pricing-Documents-Maintenance of information and documents- Forming general opinion penalty cannot be levied.(S.92D, Rule 10)

 

The Tribunal held that when there is any failure on part of assessee in complying with requirements of rule 10D, the TPO and Assessing Officer are bound to point it out specifically before levying of penalty , by forming a general opinion that the assessee has not maintained  documents as required under rule 10 penalty cannot be levied.( A.Y. 2003-04)

 

ITO v. PPN Power Generating Co (P) Ltd ( 2012) 50 SOT 26 (Chennai) (Trib)  

 

 

 

S.271AA:Penalty-Transfer pricing-Documents-Maintenance of information and documents- Different method followed by assessee and TPO, result being same penalty cannot be levied.( S.92D, Rule 10D)

 

The assessee followed the cost plus method. The TPO was of the opinion that the assessee had not gathered and maintained sufficient information as required under Rule 6D . The TPO applied the net margin method. However he concluded that no adjustment is required. He directed the Assessing officer to initiate penalty proceedings under section 271AA. The assessing Officer levied penalty though no adjustments were made. In appeal Commissioner (Appeals) deleted the penalty. In an appeal by revenue , the Tribunal confirmed the order of Commissioner (Appeals) and held that even if  there was any failure on assessee’s part to maintain proper records , it was  only a benign one which had no effect whatsoever on value of international transactions entered in to by assessee (A.Y 2002-03 and 2003-04)

 

Asst CIT v. Pentasoft  Technologies Ltd ( 2012) 134 ITD 567 (Chennai) (Trib)

 

S.271AAA:Penalty-Search and Seizure-Immunity- Immunity cannot be denied on the ground that entire tax along with interest was not paid before filing of return or before concluding the assessment proceedings.

 

During the course of search action u/s 132 , the assessee declared Rs 50,00, 000  as undisclosed income . The  Assessing Officer initiated the penalty proceedings on the ground that the assessee has not paid full taxes and interest on disclosure made under section 132(4). The assessee contended that due to in advertent error , the assessee  had  not computed the interest under section 234C , as a result self assessment tax of Rs 46, 132 was remained to be unpaid  and this shortfall was paid within the time mentioned in notice of demand issued under section 156 . The Assessing Officer rejected the explanation and levied the penalty.  On appeal the Commissioner (Appeals) deleted the penalty .On appeal by revenue the Tribunal held that payment of taxes along with the interest by the assessee is one of the conditions precedent for availing the immunity from levy of penalty under section 271AAA(2),there is no time limit set out for payment of tax and interest .The Tribunal also held that section 271AAA does not require any subjective satisfaction of the Assessing Officer to be arrived at during the assessment proceedings , therefore outer limit of payment before the conclusion of assessment proceedings will not come into play. Accordingly the order of Commissioner (Appeals) confirmed. (A.Y 2008-09)

 

DCIT v. Pioneer Marbles &Interiors Pvt .Ltd (2012) March P. 24 -656 (2012) 43-B-BCAJ  . 

 

S. 276B: Offences and prosecution- Directors-Liability of company- Company as juristic company is liable to be prosecuted ,though the directors of company was acquitted on technical grounds.(S.2(35), 278B)

 

The assessing Officer launched the prosecution to the Directors of assessee company as “principal Officers” for failure to deduct and deposit the tax at source from the interest paid to different companies. After the trail the respondents had been convicted under section 276B. One of the director has expired during the trail hence proceedings against him, stood abated. Another director was acquitted on the technical ground that non-compliance of section 2 (35) of the Act. As no notice was issued to him as principal officer the proceedings held to be bad in law. The Addl. Sessions Judge held that since the notices to individual directors has held to be defective the company cannot be convicted as the company being legal entity managed by the its officers .On appeal by revenue the Court  set aside the order and held that A company can be prosecuted for the  offence punishable under section 276B notwithstanding the fact that its director had been acquitted for non compliance of notice under section 2 (35). The court held that juristic person cannot be order to be imprisonment however other consequences would ensure , i.e. payment of fine etc . Accordingly the  order was set  aside and order of conviction and sentence passed by the ACMM-02 (North) Delhi was restored.

 

ITO v. Delhi Iron Works (P) Ltd ( 2012) 67 DTR 380 (Delhi) (High Court)         

 

Wealth Tax

 

S. 21AA: Charge of wealth tax- Individual- HUF-Company-Association of persons registered under Society Registration Act, 1860  is not liable to wealth tax (S.3)

 

The assessee , an association persons which  is registered under the Societies Registration Act, 1860 , claimed that it is not liable to wealth tax. The Assessing Officer held that the assessee is liable to wealth tax. The Commissioner (Appeals) up held the order of Assessing Officer. In appeal before the Tribunal , the tribunal held that the members of the Association did not have any share in the income or asses of the association either on the date of its formation or any time thereafter . The Tribunal held that section 21AA would be applicable subject to the rider that its members should have any share in the income or assets or both of the association on the date of its formation or any time thereafter. Since the second condition was not satisfied, the assessee could not be considered as falling under section 21AA , hence not liable to wealth tax. On appeal by revenue , the High Court up held the view of Tribunal and held that the assessee association of persons is not liable to wealth tax.(A.Y. 1988-89 and 1989-90 )

 

DIT v. Aparna Ashram ( 2012) 205 Taxman 362  (Delhi) (High Court)     

 

Interest- Tax.

 

S.10(a):Assessment-Reassessment-Full and true disclosure- Change of opinion-Reassessment beyond four years held to be valid.

 

Assessee is a non banking finance company, which is liable  to be charged for interest –tax Act. The Assessing Officer reopened the assessment on the ground that interest which otherwise chargeable to tax under the Act for each of the assessment years had not been brought to tax by non-disclosure on the part of the assessee. In appeal Commissioner (Appeals) held that the reassessment is bad in law on the basis of change of opinion. On appeal by revenue to the Tribunal , up held the view of Commissioner (Appeals).On appeal to High Court , the Court held that the Assessing Officer has reopened the assessment on discovering that assessee had not offered chargeable interest attributable to hire purchase transactions to interest tax in its returns, it is a case  of reopening under section 10(a) and not under section 10(b) and the concept of ‘change of opinion’ not being applicable to a situation where the reopening is made under clause (a) of section 10, it cannot be said that this is a case of change of opinion or that reopening of assessments was barred by limitation as the period of four years from the end of relevant assessment year is not attracted. The court held that the re- opening is valid and appeals of revenue was allowed.(A.Y. 1992-93 to 1996-97)

 

CIT v. Standard Chartered Finance Ltd ( 2012) 68 DTR 249 (Kar) (High Court)      

 

Allied laws:

 

Appellate Tribunal-Power of President-Members ACR-Judgment of High Court stating that,  ITAT President has no power to write ITAT Members’ ACR  is stayed

 

In Uttam Bir Singh Bedi vs. UOI, a Judicial Member of the Tribunal filed a Writ Petition to challenge his supersession to the post of Vice President by his junior. He claimed that the supersession was on account of adverse Annual Confidential Reports (“ACRs”) written by the President of the Tribunal which had misguided the high level Selection Committee without the Petitioner being giving an opportunity to represent against the ACR. He claimed that the President of the ITAT had no authority to record the ACRs of the Members. This plea was accepted by the High Court and it was held as the Tribunal is a judicial body, the President, though exercising administrative control over the Benches, had no power to write the ACRs of the Members. It was also held that the Tribunal had judicial autonomy and the Government could not act like a reviewing authority on the ACRs. It was directed that as the ACRs were illegally recorded by the President and reviewed by the Government, the Selection Committee must reconsider the claim of the Petitioner on merits de hors the ACRs. This verdict was challenged by a Vice President of the Tribunal before the Supreme Court. Held by the Supreme Court at the interim stage:

 

Put up for final disposal on October 03, 2012. During the pendency of the special leave petition, the direction of the High Court in paragraph 24 of the impugned judgment shall remain stayed.

 

N. Bharatvaja Shankar v. UBS Bedi (SC) www.itatonline.org.                            

 

Referencer:

 

1. Acts, Bills, Circulars:

Finance Bill , 2012

 

Part- A Budget Speech                                      (2012) 342 ITR (st) 1.

 

Part -B –Tax proposals.                                     (2012) 342 ITR (st) 25

 

Finance Bill (no 11 of 2012)                               (2012) 342 ITR (st) 39

 

Notes on clauses                                               (2012) 342 ITR (st) 145

 

Memorandum explaining provisions .                    (2012) 342 ITR (st) 334.

 

Reports.

 

DTC Bill, 2010: Standing Committee report         (2012) 342 ITR (st) 306

 

Companies Bill, 2011                                            (2012) 169 Company cases 145 (st)

 

1. Articles.

 

S. 22: Income from house property- Whether hire charges for TV towers and Advertisement Hoardings should be taxed as income from property  by, T. N. Pandey ( 2012)247 CTR (Articles) 71. 

 

S.28(va): Business income- Non-compete fee –Whether 2003 amendment in section 28(va) is clarificatory by Gopal Nathani (2012) 205 Taxman 61 (Mag) (Article)

 

S.37(1): Business expenditure- Deductibility of interest where loan with interest is recovered from guarantor due to sister concern’s default by M.S. Prasad ( 2012) 248 CTR (Articles) 1.

 

S.37(1): Business expenditure- Admissibility of payment of ransom for release of kidnapped director by T. N. Pandey ( 2012) 342 ITR (Journal) 32

 

S.50C: Provisions of section 50C- Certain issues  by P.V.R. Prabhkar ( 2012) 248 CTR (Articles) 7 

 

S.147: Reassessment-Reassessment over powering assessment – An inevitable consequences of conceptual Chaos –By Minu Agrwal ( 2012) 247 CTR (Articles)65.

 

S. 194C ,194H, 194J, 195: Deduction at source-No TDS on payment for purchase of goods /services through credit card transactions by S.K.Tyagi ( 2012) 342 ITR (Journal) 1.

 

S. 195: Deduction at source- Section 195 of the Income-tax Act  as interpreted by the Supreme Court in Vodafone ‘s case  by T.N.Pandey ( 2012) 205 Taxman 119 (Mag) (Article)

 

S. 226:Tax Collection- Tax collection drive in Februray –March 2012-Harrassment of tax payers by G.Laksminarsimhan ( 2012) 247 CTR (Articles) 69    

 

S. 260A: Appeal to High Court- Remand of a case by the High Court  to the Assessing Officer without formulating the substantial Question of law by M.S.Prasad ( 2012) 247 CTR (Articles) 75

 

The land mark Vodafone Ruling –A critical Analysis by Arvind  P. Datar ( 2012) 341 ITR 25(Journal)

 

Vodafone’s case –No capital punishment for capital investment by Dindayal Dhandaria  ( 2012) 205 Taxman 65 (Mag) (Article)

 

McDowell’s decision still relevant –Says the Supreme Court in Vodafone’s decision by-T.N.Pandey , ( 2012) 341 ITR 34 (Journal).

 

Vodafone’s case- Supreme Court discuss holding companies and subsidiaries relationships and revisits the concept of piercing the corporate veil in recent vodafone’s decision by T.N.Pandey ( 2012) 205 Taxman 95 (Mag) (Article)   

 

Proprietary position of females :A comparative study under Hindu Succession Act,1956 and Muslim Law of Succession by Dr Parminder  Kaur ( 2012) AIR Jour . 26 (March -2012)   

 

“Piercing the corporate veil in taxation matters” (India and International transactions with special reference to Direct taxes codes) by Neeraj Shukla and Anand Mishra ( 2012) 169 Company cases 1(Journal)

 

Principles of natural justice particularly in relation to Tax Laws by K.H.Kaji ,Manish K.Kaji (2012) 47 VST 1(Journal)

The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org.