Digest of important case law – November 2012

No time to read through voluminous case reports?

S.2(14): Definitions-Capital asset-Agricultural land – Land within 8.kms of  municipal limit.

 

Section 2(14)(iii)(b) covers the situation where the subject land is not only located within the distance of 8.kms, from the local limits, which is covered by cl. (a) to s. 2(14) (iii), but also requires the fulfillment of the condition that the Central Govt. has issued a notification under this clause for the purpose of including the area up to 8.kms, from the municipal limits, to render the land as a `capital asset’ . In the present case, though it is contended that land is located within 8 kms. within the municipal limits of Dasarahalli City Municipal Council, in the absence of any notification issued under cl. (b) to s. 2(14)(iii), it cannot be looked in as a capital asset. Capital gains were not therefore chargeable on sale of agricultural land. (A.Y. 2005- 2006)

 

CIT v. Madhukumar N. (HUF) (2012) 78 DTR 391/254 CTR 564(Karn.)(High Court)

 

S.2(15): Definitions-Charitable purpose-Educational institution – Investment in Trust publishing magazines dealing with education ancillary to main object of running educational institution  – trust is entitled to exemption.(S.11 )

 

The assessee was allowed the benefit u/s. 11 of the I.T Act 1961, till 1985-86. But, for the asst. years 1986-87 and 1987-88, the A.O. denied the exemption for the reason that (i) the assessee was not a public charitable trust; its objects were limited for the benefit of a few people; (ii) the assessee was running  educational institution only for the purpose of commerce; and (iii) there was violation of the provisions of section 11(5) of the Act, inasmuch as the assessee invested the monies in two organizations publishing magazines and thereby infringed section 13(1)(c). The Commissioner (Appeals) and the Tribunal held that the assessee was entitled to exemption. On appeal the High Court held that the A.O. did not give any clear finding regarding violation of section 11(5) except making such a comment. Investing monies in the two organizations publishing magazines could not be said to be commercial ventures. They were incidental and ancillary to the main activities of the trust. The assessee was entitled to exemption under sec. 11.The Supreme Court in Yogiraj Charity Trust (1976) 103 ITR 777 (SC) held that if the primary or dominant purpose of a trust is charitable, another object which by itself may not be charitable but which is merely ancillary or incidental to the primary or dominant purpose would not prevent the trust from being a valid charity. (A.Ys. 1986-88, 1987-88, 1988-89)

 

CIT v. Vijaya Vani Educational Trust (2012) 349 ITR 280(AP)(High Court)

S.2(15): Definitions – Charitable Purpose – Proviso to section  2(15),introduced by the Finance Act, 2008  with effect from 1-4-2008 ,applies to trust which has object of ‘advancement of any other object of general public utility’ and does not apply to other categories of charitable trust i.e., relief to poor and medical relief.  [S. 12AA(3)]

 

Proviso to section 2(15) of the Act introduced by the Finance Act, 2008 with effect from 1-4-2008 regarding excluding organizations where there is profit motive from definition of charitable purpose applies only to category of trusts which has as its object, object of ‘advancement of any other object of general public utility’; It does not apply to other categories of charitable purpose viz., ‘relief to poor, education and medical relief. Registration cannot be withdrawn on the ground that objects of trust has been altered  without the consent of the department .(A.Y. 2009-10) 

 

Krupanidhi Educational Trust v. DIT(IT) (2012) 139 ITD 228 (Bang)(Trib.)

S.2(15): Definitions – Charitable purpose-assessee-society provided citizen’s services to common people – Charged very huge fees, in addition to charges levied by State Government – Activities not treated as charitable purpose. (S.12AA)

 

Where assessee-society provided citizen’s services to common people by charging very huge fees which was in addition to charges levied by State Government and was additional burden upon common man, activities of assessee could not be  treated as charitable in nature making it eligible for registration under section 12AA, refusal of registration was held to be justified.

 

Sukhmani Society for Citizen Services v. CIT (2012) 139 ITD 307 (Asr.)(Trib.)

S.2(15): Definitions – Charitable Trust – Marathon conducted in commercial sense – Cannot be said to be existing only for charitable purpose(S.12AA )

 

A trust conducts marathon in a commercial manner, then it cannot be said to be existing only for charitable purposes in view of amended definition of charitable purpose with effect from 1-4-2008, matter remanded. (AY 2012-13)

 

Hyderabad Runners Society v. DIT (Ex) (2012) 139 ITD 464/ 20 ITR 675 (Hyd.)(Trib.)

 

S.2(22)(a): Definitions-Dividend-Deemed dividend-Occupancy rights-  Occupancy rights to shareholder taxable as “deemed dividend” but not as “benefit or perquisite” [S.2(24)(iv)] 

 

The assessee was the substantial shareholder of a closely held company which owned a building. The Articles of the company provided that each shareholder would have occupancy rights to a flat on the condition that an interest-free refundable deposit be paid. The occupancy rights were transferable. The AO held that the grant of occupancy rights by the company amounted to a “distribution of assets” and that the same was assessable as “deemed dividend” in the hands of the assessee u/s 2(22)(a) to the extent of the accumulated profits. On appeal, the CIT(A) held that as the occupancy rights were given against payment of a refundable deposit, there was no “distribution of assets” and so no deemed dividend. Instead, he held that the occupancy rights conferred a “benefit/perquisite” on the assessee which was assessable u/s 2(24)(iv). On cross appeals before the Tribunal, held:

 

(i)         U/s 2(22)(a), any distribution by a company of accumulated profits, whether capitalized or not, constitutes “dividend” if such distribution entails the release by the company to its shareholders of all or any part of the assets. As the assessee received the occupancy rights to the flat in perpetuity and could transfer them, it effectively meant that he had full ownership over the flat. Accordingly, the value of the flats was assessable as deemed dividend u/s 2(22)(a);

 

(ii)        However, as the said occupancy rights were given in lieu of holding shares and an interest-free refundable deposit towards proportionate land cost and development cost and were transferable, there is no “benefit or perquisite” which is assessable u/s 2(24)(iv). (A. Y. 2006-07 & 2007-08)

Shantikumar D Majithia v. DCIT (Mum.)(Trib.)www.itatonline.org

S.2(22)(e): Definitions- Dividend- Deemed dividend  – Trade advances to sister concern – Provisions of S. 2(22)(e) is  not applicable (S. 194,201(IA))

 

Provisions of section 2(22)(e) is not applicable to trade advances given to sister concern in which shareholders of assessee have substantial interest, therefore provision of section 194 cannot be applicable and assessee  cannot be treated as assessee in default and levy of interest under section 201 (IA)  was deleted .As the Commissioner (Appeals) has passed a reasoned order the matter was set aside. (AY 2005-06  to 2006-07)

 

Jaypeem Granites (P.) Ltd. v. ITO (2012) 139 ITD 564 (Hyd.)(Trib.)

S.2(22)(e):Definitions- Dividend- Deemed dividend – Transfer of profit by company – Not treated as loan

 

Mere transfer of profit by a company cannot be treated as loan within meaning of provisions of section 2(22)(e), matter remanded to pass a speaking order. (AY 2004-05)

 

Mahendra Kumar Gupta (HUF) v. ACIT (2012) 139 ITD 377(SMC) (Delhi)(Trib.)

S.2(42B):Definitions-Short term capital gain – Gold bond certificate – Treated as asset, sale consideration liable to be taxed as short term capital gain.

 

Gold received by assessee on redemption of gold bond certificates issued under Gold Deposit Scheme, 1999, is a new asset. Therefore, when assessee sold said gold within a period of twelve months from date of its acquisition, income arising from sale transaction was to be taxed as short-term capital gain. (AY 2008-09)

 

Shiv Kumar Agrawal v. DCIT (2012) 139 ITD 572 (Agra)(Trib.)

S.4: Charge of income-tax – Income from other sources-Compensation received under consent decree. (S.56 )

 

Court found that the department having not called upon the assessee to produce the relevant documents viz. Letter of offer made by JN Ltd., resolution of the board of directors of the assessee company when they applied for fully convertible debentures of that company, terms and conditions of issue of debentures, pleadings in the suit, resolution of the board of directors whereby they agreed to give up their right to take over JN Ltd. for the agreed compensation, etc., the impugned order of the High Court is set aside and the matter relating to the taxability of the compensation received by the assessee for giving up its right under the SEBI Takeover Code is remitted to the Assessing Officer for de novo consideration.

 

CIT v. Vasudhara Holdings Ltd. (2012)210 Taxman 568/ 254 CTR 341/ 79 DTR 351(SC) 

S.4: Charge of income-tax- Diversion by overriding title – Appropriation towards sinking fund created under lease agreement there was no diversion by overriding title.

 

The Court held that there was no diversion of income by overriding title as regards the amount appropriated by the assessee lessor towards the sinking fund which is to be used for discharging its obligations under the lease agreements as assessee had complete control over these funds and it has claimed depreciation in respect of the plant and machinery and other equipments purchased by utilizing the sinking fund for extending the facilities to the lessees.  (A.Y. 1989 – 1990 & 1990 – 1991)

 

M. Visvesvaraya Industrial Research and Development Centre vs. CIT (2012) 79 DTR 387( Bom.) (High Court)

S.4: Charge of income-tax- Banking company-Net appreciation in value of  securities – Not recognized as income.

 

Assessee, banking company registered in Korea, was carrying on banking business in India through its branch at Mumbai. As a part of its banking business, assessee claimed to have invested in securities which were categorized as ‘available for sale’. As per accounting policy consistently followed, net appreciation in value of said securities was not recognized as income by assessee on ground that it represented unrealized and notional profits. Assessing Officer treated such net appreciation in value of securities as income of assessee liable to tax. The said addition was deleted following order passed by Tribunal in case of Dy. CIT (International Taxation) v. Chohung Bank [2010] 126 ITD 448 (Mum.) [AY 2004-05 to 2006-07).

 

Shinhan Bank v. Dy.DIT (2012) 54 SOT 140 (Mum.)(Trib.)

S.4: Charge of Income -tax – Mutual concern – Investment of surplus in Bank – Interest/return on such investment not be covered by character of mutuality hence liable to tax.

 

When a mutual concern invests its surplus funds or makes deposit in bank, return or interest on such investment/deposits will not be covered by character of mutuality and such an amount will be liable to tax. (AY 1996-97)

 

Dy.DIT v. Societe International De Telecommunication (2012) 139 ITD 328 (Mum)(Trib.)

S.4: Charge of Income- tax – Mutual Concern – Provision of goods/services to non- members   – Profit from transaction is liable to tax.

 

When a mutual concern provides goods and services to non-members also and, some profit flows from said transactions, it is chargeable to tax. (AY 1996-97)

 

Dy.DIT v. Societe International De Telecommunication (2012) 139 ITD 328 (Mum)(Trib.)

S.4: Charge of income-tax-Compensation received from landlord for delay in actual delivery of leased premises is not taxable as revenue receipt.

 

On facts compensation of Rs.1,69,71,000 received from landlord, which was in effect refund of rent paid for the period for which property was not ready for start of STP unit. Rent received back by way of compensation is to be credited against the rent paid by the assessee. Thus, refund of the rent of pre operative period was credited to pre operative expenses account and the refund of the rent of post operative period was credited to rent account which was transferred to P & L A/c nature of entire compensation is the same. Merely because the assessee has bifurcated it into two portions, different treatment cannot be given to them. Therefore, no portion of the compensation amount is taxable as revenue receipt. (A.Y. 2003 – 2004)

 

American Express (India) (P) Ltd. v. JCIT (2012) 79 DTR 127/150 TTJ 316 (Delhi)(Trib.)

S.4: Charge of income-tax-  Interest- Head office-DTAA-Indo- France.(S.5, 90, Art.7)

 

Interest paid to the head office/branches of the assessee bank by the Indian branch, cannot be taxed in India being payment to self which does not give rise to income that is taxable in India as per the domestic law or even as per the relevant tax treaty. (A.Y. 2002 – 03 & 2003 – 2004)

 

BNP Paribas Sa v. Dy. DIT (International Taxation) (2012) 79 DTR310 (Mum.)(Trib.)

S.5: Scope of total income- Income-Accrual-Interest income-Debenture-Interest income calculated on amortization basis is accepted on the  basis of matching principle.

 

The assessee has computed his interest  income arising on the difference between purchase price of the debenture and redemption price after six years and calculated the income on amortization basis .The issue before the Apex court was whether such interest should be taxed on accrual basis in the year of allotment of debenture it self or whether it should be taxed on spread over basis. The Apex court referring the Judgment of Bombay High Court in Taparia Tools Ltd v. Jt.CIT (2003) 260 ITR 102(Bom.)(High Court), which refers to matching principle , order of Tribunal up held and order of High Court was set aside.(A.Y. 1995-96)

 

Rakesh  Shantilal Mardia v. Dy.CIT ( 2012) 210 Taxman 565 /254 CTR 338(SC)  

 

Editorial: Taparia Tools Ltd v. Jt.CIT (2003) 260 ITR 102(Bom.)(High Court) is approved.

 

S.5: Scope of total income-Accrual – Interest on debentures- Assessable on spread over basis.

 

Interest income representing the difference between the purchase price of debentures and the redemption price after six years was rightly taxed on spread over basis and not in the year of allotment of debentures itself.  It would be futile to ask the department or the assessee to recompute the income as it would merely be a theoretical exercise. (A.Y. 1995 – 96)

 

Rakesh Shantilal Mardia v. Dy. CIT (2012) 79 DTR 302(SC)

 

S.5: Scope of total income-Income-Accrual- Advance rent – premium for agreement to lease.

 

On facts  “advance rent” received by the assessee from the lessee being the consideration for being let into possession of the leased premises as evident from the report of the assessee’s council of Management and the terms of the lease, it was in fact a premium rather than advance rent and constituted the assessee’s income; leasing out of commercial spaces by the assessee cannot be regarded as sale of properties as the assessee was only a lessee of the land which belonged to the Govt. and it was not even entitled to sell the construction put up on the land. Constituted the assessee’s income. (A.Y. 1989 – 90 & 90 – 91)

 

M. Visvesvaraya Industrial Research and Development Centre v. CIT (2012) 79 DTR 387(Bom.) (High Court)

S.5: Scope of total income-Amount received for transfer of indefeasible right of connectivity for 20 years is assessable over the period of 20 years.

 

RI Ltd. in terms of the agreement, had only the right to use the network during the tenure of the 20 years agreement. Further, the agreement was liable to be terminated at the sole discretion of RI Ltd. and consequently, the amount received as advance for 20 years lease period would have to be returned on such termination for the balance unutilized period. Tribunal also held that the agreement dated 30th April 2003 was only in the nature/form of a lease agreement. Therefore, the assessee had in terms of AS-19 correctly spread the entire fee of Rs.3,037 crores over the period of 20 years and to pay tax thereon over the entire period. Entire amount was not assessable during the relevant year. (A.Y. 2004 – 2005)

 

CIT v. Reliance Communication Infrastructure Ltd. (2012) 79 DTR 198 /254 CTR 251(Bom.) (High Court)

S.5: Income -Accrual –Banking business- Guarantee commission recognized by assessee over life of guarantee on accrual basis – Addition sustained.

 

Assessee, as a part of its banking business provided bank guarantees and charged guarantee commission on the same. Guarantee commission was being recognized by assessee over life of guarantee on accrual basis. Guarantee commission received for year under consideration to some extent was not recognized by assessee as its income on ground that guarantee period relating to said commission was subsequent to 31-3-2004. It was held that addition made by Assessing Officer on the basis that period of guarantee had nothing to do with assessee’s right to receive commission and accordingly, said amount was brought to tax for assessment year in question holding that said income accrued to assessee at time when corresponding guarantees were issued. [A.Y. 2004-05 to 2006-07)

 

Shinhan Bank v. Dy.DIT (2012) 54 SOT 140 (Mum.)(Trib.)

S.5: Scope of total income-Guarantee commission-Deferred guarantee commission is assessable proportionately.

 

Income from deferred guarantee commission did not accrue or arise in the year in which guarantee agreements were entered and such income should be spread over the period to which the guarantee commission related and should be assessed proportionately. (A.Y. 2002 – 03 & 2003 – 2004)

 

BNP Paribas Sa v. Dy. DIT (International Taxation) (2012) 79 DTR 310/150 TTJ 395 (Mum.) (Trib.)

S.9: Income deemed to accrue or arise in India –DTAA- India-Singapore – Income earned from termination of forward contract – Capital gain treated as exempt (S.45, Art.13)

 

Assessee was a Singapore based bank registered in India as FII. It took loan in foreign currency to invest in debentures. To safeguard itself from foreign exchange fluctuation risk it entered into forward contracts. Before selling debentures, it terminated forward contracts on which it earned profit. It was held that gain arising from early settlement of foreign exchange forward contract was not income from other sources but had to be treated as capital gain exempt under Article 13 of DTAA. (A.Ys. 1998-99 & 2005-06)

 

Citicorp Investment Bank (Singapore) Ltd. v. Dy. DIT (2012) 54 SOT 119(Mum)(Trib.) 

S.9: Income deemed to accrue or arise in India – Income earned from assessee’s foreign branches – Permanent establishment – Not be taxable in India

 

Assessee-bank sought relief in respect of its income from foreign branches based on respective Double Tax Avoidance Agreements. In all foreign countries, operation was carried out through its branches which was permanent establishment situated outside India, therefore, income attributable to these branches could not be taxed in India. (AY 2003-04)

 

Bank of India v. Dy. CIT (2012) 139 ITD 493 (Mum)(Trib)

S.9(1)(i): Income deemed to accrue or arise in India – PE – Liason Office  -DTAA-India-USA – Liaison office merely co-ordinated purchases in India – Could not be regarded PE in India – No income attributable in India.(Art 5 )

 

Assessee was a non-resident company dealing in cut and polished diamonds – A survey under section 133A was carried out. Assessing Officer on the basis of finding recorded by survey party issued a show-cause notice to assessee as to why its Liaison Office should not be treated as Permanent Establishment (PE) in India. Following order passed by co-ordinate Bench of Tribunal in assessee’s own case in DDIT (IT) v. Fabricant & Sons Inc. [2011] 48 SOT 576 / 15 taxmann.com 358 (Mum.) it was held that where liaison office of assessee merely co-ordinated its purchases in India, it could not be regarded as assessee’s PE in India and, thus, no income could be attributed to it under section 9. (A.Ys. 2006-07 & 2007-08)

 

DDIT(IT) v. M. Fabricant & Sons Inc. (2012) 54 SOT 135/20 ITR 118 (Mum.)(Trib.)

S.9(1)(i): Income deemed to accrue or arise in India – Banking business-Interest payment by the Indian branch of assessee bank to its overseas head office in Japan – Not chargeable to tax in India (S.40(a)(ia)195 )

 

Interest paid by the Indian branch of assessee bank to its overseas head office in Japan was not chargeable to tax in India. Consequently, provisions of section 195 would not apply in respect of aforesaid payment. (AY 2004-05)

 

Dy.DIT v. Mizuho Corporate Bank Ltd. (2012) 54 SOT 117 (Mum)(Trib.)

 

S.9(1)(iv): Income deemed to accrue or arise in India – Payment for uploading and display of banner advertisement on non-resident’s portal – No PE of non-resident in India – No TDS to be deducted [S. 40(a)(i)]

 

Payment made by assessee to non-resident for uploading and display of banner advertisement on non-resident’s portal would not be liable for tax deduction at source in absence of any PE of non-resident in India. (AY 2006-07)

 

Pinstorm Technologies (P.) Ltd. v. ITO (2012) 54 SOT 78 (Mum.)(Trib.)

S.9(1)(vi): Income deemed to accrue or arise in India-Non-resident-DTAA- India- USA-Royalty-Taxability of royalty under retrospective law & reimbursement of expenses. [Art. 3 (2)] 

 

The assessee, a USA company, received Rs. 6.41 crores towards reimbursement of international telecom connectivity charges. The assessee claimed that the said amount did not fall within the definition of “royalty” in Article 12 of the India-USA DTAA apart from the fact that as it was a “reimbursement of expenses“, it was not income. The department claimed that irrespective of the position under the DTAA, in view of the retrospective insertion of Explanation 5 to s. 9(1)(vi) by the FA 2012 w.r.e.f. 1.6.1976, the said amount had to be assessed as “royalty“. On appeal by the assessee to the Tribunal Held allowing the appeal:

 

(i)         A retrospective amendment to the Act has no bearing on the DTAA because s. 90(2) makes it clear that the provisions of the Act shall apply only to the extent that it is favourable to the assessee. While a retrospective amendment will alter the provisions of the Act, it will not per se have the effect of automatically altering the analogous provision of the Treaty. Further, though the DTAA provides that the laws in force in India shall govern the taxation of income, this is subject to the exception that there is nothing to the contrary in the DTAA. Similarly, under Article 3(2), as the term “royalty” is defined in Article 12, the definition in s. 9(1)(vi) will have no application;

 

(ii)        On merits, even if the retrospective amendment applied, the amount would not constitute “royalty” because it was not received “for the use or right to use any industrial, commercial or scientific equipment” owned by the assessee. The equipment was owned by the telecom operators and the amount could be considered as royalty in their hands but not in the hands of an intermediary like the assessee who merely made the payment and got the reimbursement;

 

(iii)       Further, the said amount, being a pure reimbursement of expenses without any mark up cannot be considered as income in the hands of the assessee. However, the onus is on the assessee to show, by leading evidence, that there is no element of profit in such reimbursement and that the contract price has not been bifurcated to show a portion thereof as reimbursement. Mere nomenclature of “reimbursement” is not relevant. On facts, as the assessee established that there was no mark up, the amount was not assessable. (A. Y. 2006-07)

WNS North America Inc v. ADIT ( Mum)(Trib.)www.itatonline.org

 

S.9(1)(vi): Income deemed to accrue or arise in India – Royalty-Agreement for distribution of cinematographic films  – No PE in India – Indian company acted independently, hence amount not taxable.

 

Assessee-company was a tax-resident of USA. It entered into an agreement with an Indian company for distribution of cinematographic films in India. It was held that assessee did not have any PE in India as the Indian Company who obtained rights was acting independently, therefore, amount received by assessee was not taxable in India. (AY 2007-08)

 

Warner Bros. Distributing Inc. v. ADIT (2012) 139 ITD 580 (Mum)(Trib.)

 

 

S.9(1)(vii): Income deemed to accrue or arise in India-Fees for technical services –DTAA-India-Japan- Composite agreement for technical work through technical personnel is chargeable to tax in India.(S.90,Art. 3,10,12 )

 

Technical work was carried out by Toyo and Toyo and was not merely provided technicians to carry out the work. Fees were, therefore, paid not merely for deputing technical experts, but for the technical services rendered by Toyo. That the services were  rendered through technical experts engaged by Toyo does not detract from the fact that Toyo rendered the technical services. Technical services obviously had to be rendered, inter alia, through technical experts. Toyo rendered a package of facilities required for repairing the assessee’s machinery. Repairs had to be undertaken with the involvement of technicians. Composite agreements providing for the carrying out of technical works through the technical personnel of the contracting party fall within the ambit of the term “technical personnel of the contracting party fall within the ambit of the term “technical services”. A view to the contrary would render the working of the DTAA difficult. What is said in relation to s. 9(1)(vii) would apply equally to art. 12(4). Assuming that it applies to contracts such as these, the definition insofar as it includes the provision of services of technical or other personnel is merely clarificatory. (A.Y. 1981-82 & 82-83)

 

Zuari Agro Chemicals Ltd vs. CIT (2012) 78 DTR 297/211 Taxman 171/253 CTR 529 (Bom.)(High Court)

S.9(1)(vii): Income deemed to accrue or arise in India – DTAA- India- USA – Payment for supplying personnel – Not Fees for technical services  (Art. 12 )

 

Assessee, a non-resident company, entered into a base agreement with IBM-USA. As per the said agreement, IBM-India (a subsidiary of IBM-USA) made a deal with assessee through ISPL-India, for procuring software personnel in USA for projects of IBM in USA. In terms of agreement, orders were issued by IBM to ISPL who in turn passed that to assessee. Assessee’s case was that its activity was purely recruiting and supplying of skilled personnel to IBM-India through ISPL and these technical personnel were neither employee nor were they working under supervision of assessee and, thus, payment received by assessee was for personnel supplied to IBM for its projects outside India and it had no relationship or nexus with work or services or software developed by said personnel for the IBM’s client. Hence it was held that the amount received by assessee, a non-resident company, for supplying software personnel to an Indian company to carry out its projects outside India, was not taxable as fee for technical services either under Act or under article 12 of Indo-US DTAA. (AY 2005-06)

 

Apollo Consulting Services Corporation Ltd. v. DCIT (2012) 54 SOT 82 (Mum.)(Trib.)

S.9(1)(vii): Income deemed to accrue or arise in India –DTAA- Indo-UK  – Fees for technical services – Market development fee– Fee paid to UK based company not taxable in India as fee for technical services either under section 9(1)(vii)

 

 Assessee-company was engaged in the manufacture and export of cotton yarn fabrics and garments. It was noticed that assessee paid market development fee to a UK company. It was noted from records that non-resident company was rendering services to assessee in course of their business and, therefore, such payment clearly went out of ambit of section 9(1)(vii) through exclusion specified in clause (b) there under. Moreover, even if one considered it as technical services, nothing was made available to assessee in nature of any technical knowledge, experience, skill, know-how or processes and, thus, payment in question could not be considered as fee for technical services in terms of DTAA between India and UK. Hence, it was held that amount paid by assessee to non-resident company was not taxable in India and, therefore, impugned revisional order passed by Commissioner was not sustainable. (AY 2006-07)

 

Gama Industries Coimbatore Ltd.  v. Commissioner of Income-tax (2012) 54 SOT 104 (Chennai) (Trib.)

 S.9(1)(vii): Income deemed to accrue or arise in India – India-US DTAA – Payment made to US based mobile services company for purchase of software – Payment amounts to royalty

 

Where assessee, providing mobile services, made payment to a US based company for purchase of software, said payment would amount to royalty taxable under section 9(1)(vii). (AY 2009-10)

 

Onmobile Global Ltd. v. Income-tax Officer (IT) (2012) 54 SOT 124 (Bang)(Trib.)

S.9(1)(vii): Income deemed to accrue or arise in India – Fees for technical services – DTAA-Indo-US – Instructions sent by entity abroad which gave a technical expertise to assessee – Instructions could be used even after expiry of contract thereby giving it an enduring benefit in its business, it would fall within meaning of ‘fees for included services.(Art.12.4 )

 

Under three separate service agreements, namely, marketing service, offshore development facilitation service and overseas services, assessee’s US subsidiary helped assessee in e-publishing business. US Subsidiary collected the manuscript from US customers, prepared soft copy and retrieved same in India and passed on technical instructions of customers. Assessee would typeset same accordingly and sent back to US – US subsidiary would take print and deliver same to US customers. It was held that with regard to Marketing Agreement and Overseas Services Agreement, no technical service whatsoever was involved since no technical knowledge or skill or experience was made when these services were rendered by US Subsidiary abroad. It was further held that in case of ‘Offshore Development (Facilitation) Agreement’, as assessee had to use instructions sent by US Subsidiary along with files for carrying out digitalization services and such instructions were in nature of technical knowledge which imbibed in assessee any technical expertise, which in turn could help it in its e-publication business and, thus, assessee received, an enduring benefit then of course, such services would come within the purview of clause (b) of Article 12.4 of Indo-US DTAA and, only in such cases, section 195 would apply. (AY 2007-08)

 

ACIT  v.  TexTech International (P.) Ltd (2012) 139 ITD 382 (Chennai)(Trib.)

 

S. 9(1)(vii): Income deemed to accrue or arise in India –Fees for technical services-Payment towards voice charges – Services neither managerial, technical or consultancy nature – Hence, no  fees for technical services. (S. 40(a)(ia), 195)

 

Where assessee engaged in business of IT enabled services, made payments to Novatel, a U.S. company, towards voice charges, income of Novatel was in form of service charges payment and Novatel had not rendered services of managerial, technical or consultancy nature hence the assessee had no obligation to to deduct tax at source from payment made, to Novatel, therefore disallowance cannot be made. (AY 2008-09)

 

Clearwater Technology Services P. Ltd. v. ITO (2012) 139 ITD 479 (Bang)(Trib.)

S. 10(10C): Exempt incomes-Voluntary retirement schemes-  Amount received in excess of amount permissible u/r 2BA – Deduction  is allowed. (Rule 28A )

 

Assessee was a former employee of a bank. In previous year, she received an amount of Rs. 25.42 lakhs from bank under voluntary retirement scheme. She claimed deduction of Rs.5 lakhs under section 10(10C). It was held that assessee was entitled to deduction of Rs.5 lakhs under section 10(10C), even though amount received on voluntary retirement was in excess of amount permissible under rule 2BA. (AY 2004-05)

 

Uttara Ghosh(Smt) v. DCIT (2012) 139 ITD 88 (Kol.)(Trib.)

S. 10(15): Exempt  incomes-  Interest payable – Interest payable by industrial undertakings, industrial finance corporation –Moneys borrowed-Following earlier year decision, exemption granted.

 

Assessee had raised foreign currency loans by way of External Commercial borrowing (ECB) for purpose of financing import of capital goods and services. Requisite approval for said purpose was obtained from Government. Thereafter, assessee made remittance of interest on said loan but did not deduct TDS and claimed exemption under section 10(15). AO found that due to violation of some conditions said approval was withdrawn and exemption under section 10(15) was also taken back. It was held that in assessee’s own case in earlier year in Asstt. DIT (IT) v. Reliance Industries Ltd. [2011] 16 taxmann.com 233 /[2012] 49 SOT 181 (Mum.), similar issue had been decided and exemption was granted. Therefore, following said decision interest payment made by assessee would continue to be exempted. (AY 2007-08)

 

ITO(TDS)(LTU) v. Reliance Industries Ltd. (2012) 139 ITD 95 (Mum.)(Trib.)

 

S.10(23C)(vi): Exempt incomes-  Educational Institution – Profit motive.

 

An educational institution would not cease to exist solely for educational purpose and for purposes of profit merely because it has generated surplus income.(A.Y.2009-10)

 

Santan Dharam Shiksha Samiti v. Chief C IT(2012) 253 CTR 518(P&H)(High Court)

S.10(23C)(vi): Exempt incomes- Educational institution – Profit motive -Collection of fees.

 

Matter remanded to examine whether fees collected by assessee. Educational institution under head “placement and training” is within the scope of law as has been prescribed by the State Govt. So that assessee could avail exemption u/s. 10(23C)(vi) – It is to be further examined by the Chief CIT that how the income so earned is utilized, i.e. whether for educational purpose or non educational purpose.  (A.Y. 2009 – 2010)

 

Orissa Trust of Technical Education & Training v. CCIT(2012) 79 DTR 305 (Ori.) (High Court)

S.10A: Newly established undertakings-Free trade zone-Interest income-Income from other sources- Since question as to whether there was a direct nexus between interest income and industrial undertaking had not been examined by authorities below impugned order was set aside and remanded back to Tribunal for disposal a fresh. (S.56 )

 

The assessee is a 100% Export Oriented Unit, which develops and exports software .It earns foreign exchange. It has earned interest income on Foreign Currency Deposit Account permitted by FERA  under Banking Regulations. The said interest was assessed under section 56 as income from other sources. The view of Assessing Officer was also confirmed by the High Court. On appeal the  Supreme Court  referred the case in CIT v. Menon Impex (P) Ltd (2003) 259 ITR 403 (Mad) (High Court), where in after examining in details the court has taken the view there was no direct nexus between the interest and industrial undertaking. Accordingly the order of High Court set aside to the Tribunal for deciding the matter a fresh after examining the transaction in question  as done by the Madras High Court  in Menon Impex (P) Ltd. ITAT will give an opportunity to the assessee to produce relevant documents in support of the transaction in question before deciding the question of law.(A.Y. 2002-03)

 

India  Comnet  International v.ITO ( 2012) 210  Taxman 566/ 254 CTR 339 (SC) 

S.10A:Newly established undertakings- Free trade zone-Profits derived from export – Interest on foreign currency deposit account

 

Assessee’s claim for exemption has been rejected without examination of the transaction in detail and the nexus between the interest and industrial undertaking. Therefore, impugned judgment is set aside and the matter is remitted to the Tribunal for deciding the same afresh after examining the transaction in question and giving opportunity to the assessee to produce relevant documents in support of the transaction.  (A.Y. 2002 – 2003)

 

India Comnet International v. ITO (2012) 79 DTR 303 (SC)

S.10A: Newly established undertakings-Free trade zone-– Export – Exemption granted in earlier years – No change in facts – Assessee entitled to exemption for subsequent years:

 

The assessee was engaged in the business of development of software for in flight entertainment of aircraft passengers. For the asst. years 2000-01 and 2001-02 the relief granted u/s. 10A of the Act to the SEEPZ unit had not been withdrawn. There was no change in the facts which were in existence during the asst. year 2000-01 vis-à-vis the claim to exemption u/s. 10A of the Act. Therefore, it was not open to the dept. to deny the benefit of sec. 10A for the subsequent asst. years .Where a benefit of deduction available for a particular number of years on satisfaction of certain conditions under the provisions of the Income tax Act, 1961, then unless relief granted for the first assessment year in which the claim was made and accepted is withdrawn or set aside, the Income tax Officer cannot withdraw the relief for subsequent years. More particularly so, when the revenue has not even suggested that there was any change in the facts warranting a different view for subsequent years.(2002-03, 2003-04 and 2004-05.

 

CIT v. Western Outdoor Interactive P. Ltd. (2012) 349 ITR 309/254 CTR 593 (Bom.)(High Court)

 

Editorial -Followed: CIT vs. Paul Bros (1995) 216 ITR 548 (Bom)(High Court), Direct Information P. Ltd. vs. ITO (2012) 349 ITR 150 (Bom)(High Court)

S.10A: Newly established undertakings- Free trade zone-Computation -Transactions with related concern-Gross profit cannot be reduced by applying the provisions of section 10A (7),read with section  80IA(10)( S.80IA (10) )

 

Assessee wholly owned subsidiary of a German company has two divisions in India. One division at Kandla is engaged in the manufacture and export of industrial sewing machine needles. Other division at Mumbai is engaged in trading in industrial sewing machine needles which are imported from Germany. Applying s. 10A(7) r.w.s. 80IA(10), the AO concluded that the profits of the assessee for the purpose of deduction u/s. 10A have to be arrived at by adopting 60 per cent gross profit ratio as against 77.91 per cent shown by the assessee. Tribunal after considering the entire evidence, having come to the conclusion that the profits earned by Kandla export division of the assessee are not abnormally high due to any arrangement between the assessee and its German principal from whom goods are imported or different quality, gross profit could not be reduced by AO by applying s. 10A(7) r.w.s. 80IA(10). (A.Y. 2004 – 2005)

 

CIT v. Schmetz India (P) Ltd (2012) 79 DTR 356/254 CTR 504(Bom.)(High Court)

S.10A: Newly established undertakings- Free trade Zone- Computation –Computed without  adjustment of loss from trading unit.  

 

Exemption u/s. 10A has to be computed without setting off of the loss from the trading unit against the profits of the export oriented unit entitled to deduction u/s. 10A. (A.Y. 2004 – 2005)

 

CIT v. Schmetz India (P) Ltd (2012) 79 DTR 356 (Bom.) (High Court)

S.10A: Newly established undertakings- Free trade zone- Export Promotion zone (EPZ) – Treatment of current losses and brought forward losses of non-EPZ unit.

 

Section . 10A provides for an exemption and not merely a deduction even after the amendment by the Finance Act, 2000, as it has been retained in Chapter III of the Act notwithstanding the change in the language of sub-s (1) hereof and therefore, current loses as well as brought forward losses of the non EPZ unit cannot be deducted or reduced from the profits of EPZ unit for computing the deduction under s. 10A. (A.Y. 2002 – 2003 & 2003 – 2004)

 

CIT v. Tei Technologies (P) Ltd. (2012) 78 DTR 225(Delhi) (High Court)

S.10A: Newly established undertakings-Free trade zone– Exemption granted to  proprietary concern – Conversion of proprietorship into partnership – Partnership entitled to  exemption – Circular No.7 of 2003, dated 5-9-2003 – beneficial circular binding on the Revenue.

 

The assessee claimed exemption u/s. 10A of the Act. This was denied by the AO on the ground that the assessee was earlier a proprietorship concern, but during the previous year, it had been converted into a partnership. The Tribunal held that the assessee was entitled to the exemption. On appeal to the High Court;

 

Held, dismissing the appeal, that there was no dispute that for the earlier asst. years exemption had been granted to the undertaking. The denial of exemption on the ground that conversion of the proprietorship into partnership disentitled the assessee to the benefit u/s. 10A was not borne out either from the plain language of sub-sections (9) and (9A) of section 10A or in view of Circular 7 of 2003, dated Sept. 5, 2003.The beneficial circular is binding on the Revenue. Moreover, the sub-sections were no longer in existence with effect from April 1, 2004, for the asst. year 2004-05. There was also no other provision for disallowance of the benefit to the assessee u/s. 10A. Therefore, the Tribunal was justified in holding that the assessee was entitled to exemption u/s. 10A.(A.Y.2004-05)

 

CIT v. Bullet International (2012) 349 ITR 267 (All)(High Court)

S.10A: Newly established undertakings- Free trade zone- Splitting up or reconstruction of existing business-No question of law.

 

      The  assessee purchased new plant and machinery , out of 70 employees only 8 were from the earlier concern, there was no diversion of funds .The finding of CIT(A) as well as Tribunal and other facts and circumstances of the present case, make it clear that all these questions are relating o questions of facts and there is a concurrent finding of facts recorded by CIT(A) as well as Tribunal. No substantial questions of law involved appeal dismissed.

 

CIT v. Sagun Gems (P) Ltd(2012) 253 CTR 614(Raj)(High Court)

S.10A: Newly established undertakings- Free trade zone-Splitting up or reconstruction of existing unit.

 

Finding of fact of Tribunal based on material on record to the effect that the STP unit was not reconstruction of existing unit so as to be hit by s. 10A(2)(ii) and that the lower authorities were not justified in denying relief under s. 10A only because assessee did not maintain separate accounts for old and new units not being perverse, no interference was called for  – Material produced by the assessee would clearly show that the STP unit was established with plant and machinery and assets purchased after 31st March, 1996 only and the staff was also recruited and the earlier establishment also continued to work with the machinery that was purchased prior to 31st March, 1996. (A.Y.1999 – 2000)

 

CIT v. Fusion Software Engg. (P) Ltd. (2012) 79 DTR 130 (Karn.)(High Court)

 

S.10A: Newly established undertakings-– Free Trade Zone – Not provide for excluding an income from total income – Allows deduction of profits and gains.

 

Provisions of section 10A are no longer provisions which provides for excluding an income from total income of an assessee (exempt income) but which envisages and allows a deduction of profits and gains specified therein (AY 2003-04, 2004-05 & 2007-08)

 

Opus Software Solutions Ltd. v. ACIT (2012) 139 ITD 427 (Pune)(Trib.)

 

S. 10A: Newly established undertakings- Free Trade Zone –Foreign remittance certificate  should refer the period of within six months.

 

Assessee, engaged in business of manufacturing and export of processed food products, claimed deduction under section 10A. It was held that In terms of provisions of section 10A, unless foreign remittances are credited in the account of the assessee or at least credited in account of bank, it cannot be said that export proceeds have been received in or brought into India. Since certificate issued by Bank did not state that foreign remittances had been credited in its account within period of six months so that it could be considered as having brought into India, assessee’s claim was rightly rejected. (AY 2007-08)

 

Capital Foods Exports (P.) Ltd. v. ACIT (2012) 139 ITD 584(Mum)(Trib.)

 

S.10A: Newly established undertakings- Free trade zone-Conversion of DTA to STP is allowed hence there is no splitting up or reconstruction of existing business assessee is entitled to exemption.

 

Conversion from DTA to STP unit was allowed pursuant to the application filed by the assessee with STPI. There was no restructuring and/or transfer of the business as such. There was no violation of the conditions as mentioned in s. 10A(2)(ii) and (iii) as there was neither splitting up nor reconstruction of the business already in existence. Conversion and splitting up or reconstruction are completely different terms. Moreover, conversion cannot be termed as transfer.  As regards non intimation of commercial production to STPI, there is nothing on record to suggest that the permission granted by STPI, was subsequently cancelled or withdrawn on the basis that the assessee did not give intimation to STPI in respect of the commencement of commercial production. Moreover, in the subsequent year, STPI itself intimated the AO that the condition of intimation is immaterial. Therefore, assessee is entitled for exemption u/s. 10A. ( A. Y. 2007 – 2008)

 

Cadtrium Engineering Solutions (P) Ltd v. ITO (2012) 78 DTR  347/111 TTJ 124(Delhi) (Trib.)

 S.10A: Newly established undertakings- Free trade zone- Delay in filing return- Mandatory. (S. 139,, 234A )

 

The special bench was constituted to decide the  following question , “Whether the proviso to section 10A(IA)  of the Income-tax Act  which says that no deduction under section 10A shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under section 139(1) is mandatory or merely directory ?”. The Tribunal held that provisions of section 10A(IA)  are mandatory and not directory ; deduction under section 10A  cannot be allowed to an assessee who does not furnish return on or before due date specified under  sub section (1) of section 139. The charging of interest is held to be mandatory. When one of the consequences for not filing  return  of income within due date prescribed under section 139(1) is mandatory then other consequences cannot be held to be directory and the same is also mandatory.(A.Y. 2006-07)

 

Saffire Garments v.ITO ( 2013) 151  TTJ 114 (SB) (Rajkot)(Trib.)

S.10B:Newly established hundred per cent export-oriented undertakings-Mere approval under STP Scheme does not entitled to exemption.

 

In the absence of any notification or official document suggesting that either the Inter Ministerial Committee or any other officer or agency was nominated to perform the duties of the Board constituted under s. 14 of Industries (Development and Regulation) Act, 1951 for the purposes of approvals under s. 10B, mere approval for the purpose of STP does not entitle the unit to benefit under S. 10B.Appeal  of revenue was allowed. (A.Y. 2003 – 04, 2004 – 05, 2006 – 07 & 2007 – 08)

 

CIT v. Regency Creations Ltd. (2012) 79 DTR 24 (Delhi)(High Court)

 

CIT  v. Valiant Communications Ltd (2012) 79 DTR 24 (Delhi)(High Court)

 

 

S.10B: Newly established hundred per cent export-oriented undertakings- Manufacture-Cutting of marble blocks entitled to exemption.

 

Activity of cutting marble blocks and converting into the polished slabs and tiles constitutes manufacture or production and therefore assessee was entitled to exemption u/s. 10B. (A.Y. 2004 – 2005)

 

Grace Exports v. ITO (2012) 79 DTR 361 / 254 CTR 449  (Raj.)(High Court)

S.10B: Newly established hundred per cent export-oriented undertakings-Interest on housing loan given to employees eligible for exemption.

 

Loan was given to the employees during the course of carrying on of the assessee’s business. There is also a direct nexus between interest paid and interest received by the assessee.  Therefore, deduction u/s. 10B is allowable in respect of interest earned on housing loans. (A.Y. 2003 – 2004)

 

American Express (India) (P) Ltd. v. JCIT (2012) 79 DTR 127/150 TTJ 316(Delhi)(Trib.)

 

S.11: Charitable or religious purposes-Absence of charitable activities the exemption is not  entitled to exemption. (S.2(15), 12A)

 

An assessee that engages itself only or predominantly in activities relating to its ancillary or incidental objects which are not related to any charitable purpose and does not carry on any activity relating to its main object of charitable nature is not entitled to exemption u/s. 11 ; assessee institution having never carried out any scientific research, and applied a very insignificant portion of its income towards research and development activities, it is not entitled to exemption u/s. 11; claim for exemption u/s. 11 is also not sustainable in view of cl. (b) of sub s(4A) thereof as the leasing business carried on by the assessee was not wholly for the charitable purposes. (A.Y. 1989 – 90 & 1990 – 91)

 

M. Visvesvaraya Inds. Research and Development Centre vs. CIT (2012) 79 DTR  387 (Bom.) (High Court)

S. 11: Charitable or  religious purposes– Capital gain applied for charitable purpose -Not by acquiring a new asset but for other charitable purpose – Claim for exemption  is allowed .

 

If capital gain is applied for charitable purpose of assessee not by acquiring a new asset but for other charitable purpose, then there is no reason why it should not be considered as application of income for charitable purpose enabling assessee to claim exemption under section 11(1). (AY 2006-07)

 

Al Ameen Education Society v. DIT (Ex) (2012) 139 ITD 245 (Bang.)(Trib.) (2006-07)

 

S.11: Charitable or religious purposes- Accumulation of income for specific purpose – Held accumulation for purpose of trust, hence allowable

 

Assessee-society was running educational institute. It was held that where assessee-society had accumulated income for specific purpose as per objects of trust and accumulated funds had been used accordingly in subsequent years, disallowance of accumulation was not justified. (AY 2007-08)

 

ACIT v. Jamia Urdu (2012) 139 ITD 590 (Agra)(Trib.)

S.11: Charitable or religious purposes-Corpus donation – received shares as corpus and subsequent sale  there is no violation the assessee is eligible for exemption. [S. 11(1)(d) (S.13(d)]

 

Assessee trust received 11,47,110 equity shares of M. Ltd and 2,01,500 equity shares of S Ltd. from another trust towards corpus donation. There is no restriction on accepting shares by a charitable institution. However, cl.(iia) of the proviso to s. 13(1)(d)(iii) entitles an assessee trust to hold the shares for a maximum period of one year before which they have to be converted into the modes of investment as prescribed in s. 11(5). Contention of the Dept. Representative that the assessee has violated the provisions of s. 11(1)(d) by selling the shares suffers from the basic fallacy in not recognizing that the assessee has merely converted one form of investment into another viz. Money by selling the shares. The corpus donations received by the assessee could not be considered as general donations merely on the ground of its utilization in the subsequent year for giving corpus donations to other charitable institutions. (A.Y. 2006 – 07 & 2007-08)

 

Sera Foundation v. ITO (2012) 79 DTR 210/150 TTJ 537 (Delhi) (Trib.)

 

S.12A:Trust or institution-Registration-Charitable purposes-Objects and activity, Director is not required to examine whether the Trust has actually carried on charitable activities.

 

Statute does not prohibit or enjoin the CIT from registering trust solely based on its objects, without any activity, in the case of a newly registered trust. Statute does not prescribe a waiting period, for a trust to qualify itself for registration. Tribunal was therefore right in holding that while examining the application u/s. 12AA(1)(b) r.w.s. 12A, the CIT/Director is not required to examine the question whether the trust has actually commenced and has, in fact, carried on charitable activities.

 

DIT v. Foundation of Opthalmic and Optometry Research Education Centre (2012) 79 DTR 178(Delhi)(High Court)

 

S. 12AA:Truat or institution- Charitable  purpose – Registration – Object remained same even after amendment – No cancellation of registration without giving any contrary finding

 

Mere finding that objects of trust has been altered without consent of department would not be sufficient to exercise power under section 12AA(3) without giving a finding that objects of trust are no longer charitable. Where assessee education-trust was formed with main object of imparting education, mere fact that it amended clause of trust deed to include technical and medical education within its ambit and it paid commission to persons who solicited students for studying in assessee’s education, it could not lead to conclusion that assessee was not imparting education. Therefore, Director (Exemption) was not justified in cancelling registration under section 12AA(3).

 

Krupanidhi Educational Trust v. DIT(IT) (2012) 139 ITD 228 (Bang)(Trib.)

S.12AA: Trust or institution-Registration – Charitable purposes – Non commencement of charitable or educational activities refusal of registration was justified.(S.80G (5) )

 

As per s. 12AA, CIT has to satisfy himself about the genuineness of the activities of the trust or institution in consonance with its objects – Thus, CIT has to examine as to whether the assessee actually engaged in the activities which are genuine – In the instant case, assessee trust is established for the purpose of maintaining schools, colleges and institutions for imparting education in different subject – Only construction activities are going on and no actual educational or charitable activities have been carried out by the assessee. Finding of fact recorded by the CIT that the trust intended to promote the business of the family concern and as such it could have a commercial motive has not been rebutted by any explanation or material on record. Thus, sole object of the assessee could not have been considered at this stage for the purpose of granting registration to the assessee. Admittedly, no genuine activities had been carried out for the purpose of achieving the charitable or educational objects of the assessee trust. Therefore, assessee failed to satisfy the requirements of s. 12AA and as such the CIT was justified in refusing to grant registration and approval. 

 

Hardayal Charitable & Educational Trust v. CIT (2012) 79 DTR 285/150 TTJ 384 (Agra) (Trib.)

 

S.12AA: Trust or institution-Registration-Charitable purposes- -Surplus generated was utilised for the educational activities  assessee being educational institution , cancellation of registration was not justified.(S.13 ) 

 

Surplus being generated is utilized for the purpose of objects of the institution. It is nowhere provided that the trust cannot be constituted by a family and it is also not provided under the Act that trust will not have number of institutions. Education itself is charitable object and if the surplus is utilized for the purpose of charitable activities then it cannot be said that registration is to be disallowed. Chief CIT has allowed exemption under s. 10(23C) on finding that the activities of the assessee are genuine and as per its object. Assessee has explained the reasonableness is respect of the payments made to the persons covered under s. 13(3). Reasonableness is actually to be seen by the AO and not by the CIT while allowing registration or cancelling the registration. CIT was not justified in cancelling the registration.

 

Rajasthan Vikas Sansthan v. CIT (2012) 78 DTR 411 (Jodhpur) (Trib.)

 

S. 14A: Business expenditure – Disallowance – Exempt income – Restriction of disallowance

 

The assessee despite being given more than sufficient opportunity had not been able to explain the discrepancy in stock. No new document or evidence had been brought nor had the assessee been able to show how the document had been wrongly considered. An addition was made attributable to investments resulting in earning exempt income. It was held that the disallowance was to be restricted to 1% of total exempt income. (AY 2006-07)

 

Estee Exports P. Ltd. v. ITO (2012) 19 ITR 724 (Kol.)(Trib.)

S.14A: Expenditure disallowance-Exempt income-Stock in trade-Section 14A  does not apply to shares held as stock-in-trade .

 

The assessee received Rs. 59 lakhs as tax-free dividend. It claimed that no disallowance u/s 14A could be made as it was a dealer in shares and the shares were held as stock-in-trade. The AO & CIT(A) relied on ITO vs Daga Capital Management (P) Ltd. 119 TTJ (SB) 289 (Mum) where it was held that s. 14A applied also to shares held as stock-in-trade and made a disallowance of Rs. 37 lakhs. On appeal by the assessee to the Tribunal, HELD allowing the appeal:

 

As the assessee is engaged in the business of dealing in shares and the shares were held as stock-in-trade, the intention of the assessee was not to earn dividend income. As the dividend received was incidental to the business of sale of shares, no notional expenditure could be disallowed by invoking S. 14A (CCI Ltd vs JCIT (2012) 71 DTR 141 (Kar) & Apoorva Patni (ITAT Pune) (included in file) followed (A. Y. 2008-09)

Ethio Plastics Pvt. Ltd v. DCIT (Ahd.)(Trib.)www.itatonline.org

S.14A: Business expenditure-Disallowance-Exempt income-Apportionment of expenditure

 

Assessing Officer  estimated Rs.62.34 crores being proportionate interest on borrowed funds towards earning exempt income and disallowed the same under s. 14A. Assessee’s own funds are far in excess of the investments made by it which yielded exempt income. Hence, it has to be presumed that the investments had come from the interest free funds available with the assessee and the disallowance u/s. 14A made by the AO in respect of interest cannot be sustained.  (A.Y. 2002 – 2003)

 

Reliance Industries  Ltd v. Addl. CIT (2012) 79 DTR  315(Mum) (Trib.)

 

S.22: Income from house property-Business income- Owner-Lease of property exceeding twelve years assessable as business income (S. 27(iiib),28(i),269UA(f ))

 

Two consecutive licence agreements for eleven years and ten years being different and not a camouflage to conceal a licence of twenty one years or to circumvent the provisions of s. 27(iiib) r/w s.269UA(f) which were not there when the first agreements was entered into, assessee’s income in the form of rent and compensation from sub licencees was therefore assessable as business income and not as income from house property. Appeal of department was dismissed .  (A.Ys. 2004 – 2005 & 2005 – 2006)

 

CIT v. Pelican Investments (P) Ltd (2012) 79 DTR 474/254 CTR 351(Bom.)(High Court)

 

S.23(1)(a): Income from house property-Annual value- Annual Letting Value has to be determined as per market rent & not municipal rateable value if property is not subject to “bona fide” rent control

 

      The assessee let out two flats, one to its director and the other to its shareholder, for an aggregate rent of Rs. 4.52 lakhs. The assessee claimed that the rental income was assessable as business profits as the properties were held as a business asset. In the alternative, it was claimed that as the property was subject to rent control law, the rent received from the tenants had to be treated as the Annual Letting Value (ALV) and not the market rent of the properties. The AO & CIT(A) rejected the claim and held that the market rent of the properties, which was computed at Rs. 78 lakhs, was the ALV assessable as “Income from house property“. The Tribunal had to consider (i) whether the rent was assessable as “business profits” or as “Income from house property” and (ii) whether for purposes of s. 23(1)(a), the AO was entitled to treat the market rent as the ALV or he had to confine himself to the standard rent/ municipal valuation of the property. Held by the Tribunal:

 

(i)         Rental income has to be assessed as “Income from house property” even if the business of the assessee is to let out property. However, property let out to the director for her residence has to be treated as business user of the property and the rental income from such user has to be treated as business income (East India Housing & land Development trust Ltd. (1961) 42 ITR 49 (SC), CIT vs Vazir Sultan Tobacco co. Ltd. (1988) 173 ITR 290 (AP) & CIT vs  New India Maritime Agencies (P.) Ltd. (2002) 253 ITR 732 (Mad) followed);

(ii)        As regards the determination of ALV in respect of income assessable as house property, it has been held by the Third Member in ITO vs Baker Technical Services (P) Ltd.(2009) 126 TTJ 455 (Mum)(TM) that the ALV in respect of property which is not covered by the Rent Control Act has to be determined on the basis of the market rent. The municipal rateable value determined under the municipal law is not binding on the AO if he is able to show that the said rateable value does not represent the correct fair rent. In Reclamation Reality, the view of the Third Member in Baker Technical Services was not followed on the ground that it was contrary to the judgement of the Bombay High Court in M. V. Sonavala vs CIT (1989) 177 ITR 246 and it was held that the municipal ratable value has to be considered as the ALV. The decision of the Third Member has the same binding force as that of the Special Bench and was required to be followed by the Division Bench in Reclamation Reality. It wrongly relied on M.V. Sonavala, which was a case dealing with property covered under the Rent Control Act. Also, the issue as to whether, if the Municipal Rateable Value does not give the correct fair rent, should still be taken as the ALV for properties not covered under the Rent Control Act was not an issue in M. V. Sonavala. This aspect has been considered in Baker Technical Services & CIT v Moni Kumar Subba (2011) 333 ITR 38 (Del) (FB) and it was held that if the municipal rateable value was not the fair rent, it was not binding on the AO;

 

(iii)       The assessee’s argument that the property, having been let out to an individual, is subject to rent control law is not acceptable because the tenant is the daughter of a director and substantial shareholder of the assessee. The Rent Control Act applies only to bona fide letting out of properties and not to a colourable transaction which is only an arrangement to reduce tax liability. Accordingly the ALV has to be determined based on the fair rent in the market charged in comparable cases. (A. Y. 2007-08)

Woodland Associates Pvt. Ltd v. ITO ( Mum.)(Trib.)www.itatonline.org

S.23(1)(a): Income from House Property – Annual Value – Property consists of more than one house – Annual value thereof shall be determined under section 23(1), as if such property had been let

 

Assessee owned three properties, viz., R-1, R-2 and M – Assessee declared nil income from house property on ground that R-2 was self occupied for residence and other two remained vacant throughout year which were earlier let out to PSUs. It was held that provisions of section 23(4)(b) are very clear that where property consists of more than one house, annual value thereof shall be determined under section 23(1), as if such property had been let. (AY 2004-05)

 

ACIT v. Prabha Sanghi (Dr.) (2012) 139 ITD 504(Delhi)(Trib.)

S.28(i): Business income- Business loss-Confiscation of stock of silver allowable as business loss.

 

Assessee is dealing in gold and silver items and has accounted for all the purchases in question. Silver was acquired as stock in the course of business. Following a search at the assessee’s premises by the DRI, it seized the entire silver on the ground that the  assessee did not prove that it was a legal purchase. CEGAT upheld the order of confiscation passed by the customs authorities. In the appeal before the High Court the assessee inadvertently raised the question only pertaining to the legality of the purchases made from one DH and the Court accepted the genuineness of the said purchases and directed release of 194.25 kgs. of silver.  As regards the remaining silver which was purchased from NRIs, the High Court did not entertain the assessee’s plea for amending the question in appeal. Supreme Court upheld the order of the High Court. Accordingly, confiscation of silver purchased by the assessee from 18 NRIs has attained finality. Business losses occurring in the course of assessee’s  business are allowable as deduction. Seized silver was admittedly stock in trade for the assessee. Hence, confiscation thereof is a business loss and the amount written off on account of confiscation of stock of silver is  allowable as business loss. Business loss on account of confiscation can be claimed and allowed in the year in which the assessee prima facie losses hope of recovery o the goods. In this case, assessee received CEGAT’s order dated 19th March 1996, in April, 1996, and thus the issue of loss stood crystallized in the asst. Year 1997-98 under consideration. Therefore, assessee has rightly claimed the loss in this year. (A.Y. 1997 – 98)

 

Rajmal Lakhichand v. ACIT (2012) 78 DTR 355/150 TTJ 111 (Pune) (Trib.)

S.28(i) : Business income – voluntary payment by holding company to subsidiary  is assessable as business income.[S. 2 (24)]

 

Company BMIL received a payment of Rs.29.26 crores from its holding company BMG before its amalgamation with the assessee. In its letter addressed to BMIL, BMG had clearly explained that the payment is in recognition of the services rendered by BMIL to BMG. It is not a payment to enable BMIL to recoup its losses nor a payment without business consideration. Fact that it was voluntary or unconditional payment did not make it a capital receipt. Apart from the fact that BMIL was a subsidiary of BMG, there was business relationship between them. Impugned payment was made by BMG only because of such relationship and for the help rendered by BMIL in protecting and promoting the interest of BMG in the wake of adverse publicity suffered by the BMG Group following the release of a contaminated batch of a pharmaceutical product in the market. Therefore, it was a payment connected with the business of BMIL and is liable to be taxed under s. 28(i)/r.w.s. 2(24). (A.Y. 1997 – 1998)

 

Addl. CIT v. Nicholas Piramal India Ltd. (2012) 78 DTR 369/150 TTJ 1(Mum)(Trib.)

S. 32: Depreciation – Building -Plant – Cold storage –   Entitled to depreciation at a higher rate as plant –Amendment in section 43(3) is  clarificatory in nature.(S.43(3) )

 

Cold storage unit the building is required to be constructed for cooling chambers in a specific process and manner and without such specific process and manner a chamber cannot be commissioned, for which a licence is also required to be obtained. Without thermocole a chamber cannot function independently and at the same time without the building the thermocole cannot have a separate existence. Both these are integral parts of each other. The cold storage has  special  facilities for refrigeration. Just as a refrigerator cannot be divided into two parts, namely, the cooling system behind or under the refrigerator and the cabinet in front, or on top thereof, the plant of cold storage also cannot be separated in a manner that the special chambers may have separate existence and be treated as building, sans the cooling plant for providing a different rate of depreciation. The amendment in sec. 43(3) with effect from April 1, 2004, is only clarificatory in nature, and it excludes livestock or buildings or furniture and fittings from plant. What was excluded in the context was building or furniture and fittings and not building of a special nature, which does not have existence independent from the plant. Held accordingly, that the assessee was entitled to depreciation on the cooling chambers of the cold storage unit treating it as plant at the rate of twenty five per cent.(A.Y.2004-05)

 

Shyam Enterprises v. CIT(2012) 349 ITR 418 (All)(High Court)

 

S.32: Depreciation-Ownership- lease of asset-Arrangement being sale of property the assessee entitled to depreciation-Lease rent not allowable as deduction.(S.37(1))

 

The arrangement between the lessor and the assessee was, in effect, an agreement of sale of the property by the lessor to the assessee and therefore, the assessee is owner of the property entitle to depreciation. Lease rental was not allowable as business expenditure .  (A.Y. 1983-84)

 

Mather & Platt (I) Ltd v. CIT (2012) 79 DTR 12 (Bom.)(High Court)

 

S. 32:  Depreciation – Explanation 5 – Belated return- Revised return- Allowable even if no claim is made in the return. (S.139)

 

The assessee filed its return belatedly and it filed a revised return and claimed deduction in respect of short term capital gains and fresh claim of depreciation on car. The claim was rejected by the Assessing Officer , which was confirmed in appeal . On further appeal to Tribunal the Tribunal held that depreciation allowance under Explanation 5 of section 32 is allowable even if no claim is made in the original return.. (AY 2007-08)

 

Rakesh Singh v. ACIT (2012) 139 ITD 128 (Bang)(Trib.)

S. 32: Depreciation – Machine for purpose of standardization and pasteurization of milk – Process not considered as manufacturing of production activity, hence addition depreciation not allowed

 

As Standardization and pasteurisation of milk cannot be considered as a manufacture or production activity and, therefore, additional depreciation under section 32(1)(iia) is not available to machinery installed for purpose of standardization and pasteurization of milk. (AY 2005-06 & 2008-09)

 

Creamline Dairy Products Ltd. v. Dy. CIT (2012) 139 ITD 517 (Hyd.)(Trib.)

 

S.32: Depreciation – Asset put to use for 180 days – Benefit of additional depreciation remains unaffected

 

Assessee purchased new assets during preceding previous year which were put to use for less than 180 days. Apart from normal depreciation, assessee was also eligible to claim additional depreciation at rate of 15 per cent for said new assets. Since assets were put to use for less than 180 days, in preceding assessment year assessee claimed only 50 per cent of 15 per cent. Balance additional depreciation was claimed by assessee in instant assessment year. It was held that benefit of additional depreciation under section 32(1)(iia) is available in full as soon as new assets are purchased and fact that said assets were put to use for less than 180 days, does not affect such benefit. (AY 2004-05 to 2006-07)

 

Dy.CIT v. Cosmo Films Ltd. (2012) 139 ITD 628 (Delhi)(Trib.)

S.35B: Export Markets Development Allowance-Interest on export credit loan- Not allowable  weighted deduction.

 

Assessee is not entitled to weighted deduction u/s. 35B in respect of interest and bank charges incurred by it on export packing credit facilities. (A.Y. 1980-81)

 

Larsen & Toubro Ltd v. CIT (2012) 79 DTR 225 (Bom.) (High Court)

S.35D: Amortisation of preliminary expenses-Expenditure in connection with issue of shares for new projects and expansion deduction allowable under section 35D.

 

Proceeds kept in investment pending authorisation from various Governmental bodies. Purpose and raising of the Euro issue not being in dispute, nor there being material to counter the claim of the assessee that the expenditure was in connection with raising the capital for the new projects as well as for expansion, relief under s. 35D could not be disallowed for the reason that proceeds were kept in investment pending authorisation from various Govt. Bodies. (A.Y. 1994 – 1995 & 1995 – 1996)

 

EID Parry (India) Ltd v. Dy. CIT (2012) 79 DTR 249 (Mad.) (High Court)  

 

S.35DDA:Amortisation of expenditure- Voluntary Retirement Scheme –  Compliance with conditions of rule 2BA is not mandatory for deduction u/s 35DDA(S.10(10C)

 

Compliance with conditions of rule 2BA is mandatory only to avail exemption under section 10(10C) by employees but said rule is not relevant to deduction under section 35DDA. (A.Y.2007-08)

 

State Bank of Mysore v. CIT (A) (2012) 139 ITD 526 (Bang.)(Trib.)

 

S.36(1)(iii): Deductions-Interest on borrowed capital-Interest free loans to subsidiary companies allowable as deduction.

 

Assessee’s own funds are far in excess of the interest free loans and advances given by the assessee to its subsidiary companies. In the absence of any nexus establishing that the interest hearing borrowed funds were given as interest free to its subsidiaries, the disallowance of funds were given as interest free to its subsidiaries, the disallowance of interest is not justified.  (A.Y. 2002 – 2003)

 

Reliance Industries  Ltd v. Addl. CIT (2012) 79 DTR 315 (Mum.) (Trib.)

 

S. 36(1)(iii): Deductions- Interest on borrowed capital – Assessee failed to establish nexus of use of funds borrowed from bank for purpose of business – Interest paid on amounts diverted to sister concerns or other persons on interest free basis be disallowed

 

Once an assessee claims deduction under section 36(1)(iii), onus is on it to satisfy AO that loan raised were used for business purposes and if it transpires that assessee had diverted certain funds to sister concern without any interest, assessee has to justify all action before AO to his satisfaction that loan raised were used for business purposes and if it transpires that assessee has diverted certain funds to sister concern without any interest, assessee has to justify its action before AO to his satisfaction. It was held that where assessee failed to establish nexus of use of funds borrowed from bank for purpose of business to claim deduction u/s 36(1)(iii), interest paid by assessee to bank to the extent amounts were diverted to sister concerns or other persons on interest free basis was to be disallowed. (AY 2008-09)

 

ACIT v. Samrat Rice Mills (P.) Ltd. (2012) 54 SOT 1 (Delhi)(Trib.)

S. 36(1)(iii):Deductions- Interest on borrowed capital – No interest disallowance if surplus is advanced to sister concern.

 

Where assessee had utilised its own surplus funds to give interest free loans to its sister concerns, disallowance of interest payment made by AO under section 36(1)(iii) was to be deleted.(A.Y.2004-05)

 

ACIT v. Apollo Hospital Enterprise Ltd. (2012) 139 ITD 594 (Chennai)(Trib.)

 

S.36(1)(vii):Deductions-Bad debt – State Industrial Development Corporation – Sick company – Commercial test – Bad debt to be allowed. (S.36(2) )

 

The assessee, a state industrial development corporation, advanced loans and credit facilities to V, a joint sector company promoted by the assessee. The Board for Industrial and Financial Reconstruction by order dated Feb. 22, 1988, declared V a sick company. In the circumstances, the assessee did not file a suit or take recovery proceedings. The Tribunal denied the assessee deduction of the bad debt. In appeal, t he High Court affirmed the disallowance on the ground that since the assessee had merely made a provision in its books, the second condition u/s. 36(2)(i)(b) of the Act, namely, that the debt should be written off in the accounts, was not satisfied. On appeal: Held, allowing the appeal, that, firstly, the assessee was a state public sector undertaking, and, secondly, the assessee was in the business of promoting industrial development in the State of Kerala and in the course of the business, had promoted V. As a promoter, it was in a position to find out whether V was in a position to carry on business in future. Thirdly, V was a joint sector company. None of these aspects had been considered by the Tribunal or by the High Court. Lastly, a declaration was made in February, 1988, by the BIFR that V had become  a sick company and till  the end, the company could not be revived and had been wound up. In the circumstances, applying the commercial test and business exigency test, both conditions u/s. 36(1)(vii) read with sec. 36(2)(i)(b) of the Act were satisfied. There was no reason to deny to the assessee the deduction of bad debt under sec. 36(1)(vii) read with sec. 36(2)(i)(b) of the Act.(A.Y.1988-89) .

 

Kerala State Industrial Development Corporation Ltd  v. CIT (2012) 349 ITR 365/80 DTR 197 /254 CTR 643 (SC)

 

Editorial: Before amendment w.e.f .1-4-1989 .Decision of Kerala High Court in Kerala State Industrial Development Corporation Ltd  v. CIT (2006) 281 ITR 413 (Ker)(High Court) was reversed.

S. 36(1)(vii):Deductions – Bad debt – Claim raised for first time in revised return filed in pursuance of notice issued under section 153A – claim not allowed (S. 139,153A)

 

Claim of bad debts raised by assessee for first time in revised return filed in pursuance of notice issued under section 153A, could not be allowed because assessee had failed to write off said bad debts in accounts maintained in ordinary course of business as required under section 36(1)(vii). (AY 2001-02)

 

Gendmal Kothari v. Dy.CIT (2012) 139 ITD 397 (Jodh)(Trib.)

 

 S.37(1): Business expenditure-Expenditure in connection with travelling-Reaching the place of destination Rule 6 D held applicable-Each employee rather than trip basis . (Income tax Rules, 1962 Rule 6 D)

 

Following the ratio in CIT v. Gannon Dunkerly & Co (1993) 69 Taxman 563  it was held that the expenses incurred by the  employee after reaching the place of destination including stay expenses was to be treated as disallowance under section 37 read with Rule 6D.Following the ratio in CIT v. Aorow India Ltd (1998) 229 ITR 325 (Bom)(High Court ) it was held that the disallowance under rule 6 D   should be worked out on each employee basis rather than on trip basis .(A.Y.1983-84)

 

Mather & Platt (I) Ltd v. CIT (2012) 210  Taxman 509/79 DTR 12 (Bom.)(High Court)

 

S.37(1): Business expenditure-Lease rent-Capital expenditure- Arrangement between  lessor and assessee constituted sale of property, hence lease rent was treated as capital expenditure. Assessee was held to be entitled to depreciation on said capital expenditure. (S. 32)

 

The Assessee entered in to an agreement for taking factory shed on lease for 30 years  at a rent of Rs.28,500 payable half yearly. On the same day the assessee made further payment  of 16,76,750 for 29 years and six months  towards advance  rent, which would be adjusted against monthly rent. Another agreement was entered in to where an option  was given to the assessee to pay Rs 5,000 and balance would be adjusted against the advance rent paid of Rs 2,85,000. The assessee claimed the lease rent as revenue expenditure. On appeal the Commissioner (Appeals) confirmed the disallowance, however allowed the depreciation. Tribunal held that the expenditure is capital in nature, however the assessee is not entitled for depreciation. On reference, the High Court held that arrangement between  lessor and assessee constituted sale of property, hence lease rent was treated as capital expenditure. The High Court allowed the depreciation on entire capital expenditure of Rs.16,91,250 (A.Y.1983-84)

 

Mather & Platt (I) Ltd v. CIT ( 2012) 210  Taxman 509/79 DTR 12 (Bom.)(High Court)

S. 37(1): Business expenditure – Advertisement-Rents and rates – Expenditure on hiring space for hoardings is neither  deductible as rent nor deductible as business expenditure.  [S. 30, 37(3A, 37(3B(i)]

 

The assessee, claimed deduction u/s. 30 for the rental paid for hiring space on hoardings. The assessing officer disallowed the deduction. The Commissioner  disallowed the claim holding that it would not come under section 37(3A) read with section 37(3B)(i), which was confirmed by Tribunal. On a reference, held, that the hire charges paid for  advertisement on hoardings would not come within the ambit of use of the premises for the purposes of business. It was not deductible u/s. 30. The mere hiring of a space on hoardings could not be treated as expenditure for advertisement or publicity or sales promotion. It was also not deductible u/s. 37. (A.Ys.1985-86, 1986-87)

Bakelite Hylam Ltd. v. CIT(2012) 349 ITR 317 (AP)(High Court)

S.37(1): Business expenditure- Capital or revenue – Fee paid for obtaining software and licence and for renewing licence is revenue expenditure-Provision for warranty is deductible.

 

When the life of a computer or software is less than two years and the right to use it is for a limited period, the fee paid for acquisition of the right is allowable as revenue expenditure and if the software is licensed for a particular period, fresh licence fee is to be paid for utilizing it for subsequent years. Therefore, without renewing the licence or without paying the fee on such renewal, it is not possible to use the software. Therefore, the fee paid for obtaining the software and the licence and for renewing it was revenue expenditure. Provision for warranty is allowable , however there should not be double deduction hence for verification of double deduction the matter was set aside.(A.Y.2004-05)

 

CIT v. Toyota Kirloskar Motors P. Ltd(2012) 349 ITR 65 (Karn.)(High Court)

S.37(1): Business expenditure- New project – professional fees-Capital expenditure.

 

Professional fees paid by the assessee in respect of its new project was a capital expenditure and not revenue expenditure. (A.Y. 1980-81)

 

Larsen & Toubro Ltd v. CIT (2012) 79 DTR  225 (Bom)(High Court)

S.37(1): Business expenditure- Expenditure on sending a trainee abroad for higher education is not allowable as business expenditure.

 

Expenditure on sending a trainee abroad for higher education in the field of software development which was not the business of assessee was not allowable as deduction, more so as this was also not a regular practice of the company, in as much as no one before or thereafter had been selected by the company for such preferential treatment in the matter of obtaining overseas education. (A.Ys. 1991 – 92 & 1996 – 97)

 

Standipack (P) Ltd v. CIT (2012) 78 DTR  252/211 Taxman 144 (Cal)(High Court)

S.37(1): Business expenditure- Impermissible by law-Commission for providing help in getting tenders  is not allowable as business expenditure.

 

The nature of the contract namely providing expertise in preparation and procurement of tender in favour of assessee company with regard to tender floated by  public sector organizations there is no doubt that scope and ambit of payment of such commission transcended the lawful or permissible limits of participation in such tenders. Furthermore, the Tribunal has rightly held that the nature of such expertise in preparation of tender documents and follow up action for obtaining such tender has not been clearly spelt out. When the commission payments had been made for purposes which are prima facie impermissible in law the question of permitting such expenses on the anvil of commercial expediency does not arise at all. The finding of the Tribunal that such agreement does not shut out other companies from contesting the tender is also a justifiable ground for such disallowance. Therefore, the findings of the Tribunal are clearly justified and the confirmation of the disallowance is justly warranted in law. (A.Ys. 1991 – 92 & 1993 – 94)

 

Standipack (P) Ltd v. CIT (2012) 78 DTR  252 (Cal)(High Court)

S.37(1): Business expenditure – Capital or revenue expenditure –Depreciation- Non compete fee is capital expenditure-Non –compete fee does not qualify for depreciation under section 32(1)(ii).(S. 32 (1)(ii) )

 

Advantage which the assessee derived on account of its agreement with L&T was that the latter, a previous joint venture partner to the extent of 26 per cent was kept put out of the market for a period of 7 years. Coupled with the fact that the L&T has its own presence in consumer goods sector and would be, if it chooses, able to put up an effective competition for business engaged in by the assessee, there is no doubt that the amount is to ensure a certain position in the market by keeping out L&T. Payment of non-compete fee therefore constituted capital expenditure. (A.Y. 2001 – 2002)

 

Sharp Business System v. CIT (2012) 79 DTR 329/211 Taxman 576 (Delhi)(High Court)

S.37(1): Business expenditure-Capital or revenue – Royalty for supply of know-how is allowable as  revenue expenditure.

 

Royalty paid by assessee to another company for supply of technical know how to manufacture goods of a particulars brand under a knowhow licence agreement which could be terminated and did not grant the licensee any right to exploit or in any way to use the know how after the expiration of the agreement could not be treated as capital expenditure. (A.Y. 2005 – 06 & 2006 – 07)

 

CIT v. Modi Revlon (P) Ltd (2012) 78 DTR  342 (Delhi) (High Court)

S.37(1): Business expenditure –Provision for Warranty – Warranty clause in sale document – Allowable as deduction

 

Where warranty clause was part of sale document and it imposed a liability upon assessee to discharge its obligations under said clause for period of warranty, provision made for warranty charges was to be allowed as deduction. (AY 2005-06)

 

Sree Rayalaseema Green Energy v. DCIT (2012) 139 ITD 139 (Hyd.)(Trib.)

 

S.37(1): Business expenditure –Capital or revenue- Non-compete fee is a capital expenditure not allowable as revenue expenditure

 

It was held that the amount paid for non-compete fees is capital outlay and same cannot be allowed as revenue expenditure under section 37(1). Further, since amount is not in nature of revenue expenditure, a part of it cannot be considered as deferred revenue expenditure so as to allow over period of non-compete agreement. (AY 1996-97)

 

NELITO Systems Ltd. v. DCIT (2012) 139 ITD 321 (Mum)(Trib.)

S.37(1): Business expenditure – Lump-sum amount paid for licensed trade mark and brand name – period of 10 years – allowed as revenue expenditure

 

Assessee-company entered into an agreement with a foreign company for use of trade mark and brand name of said company on its licensed products for a period of 10 years. It was held that where lump-sum royalty was paid to a foreign company for use of its brand name and trade work for 10 years, 25 percent of said payment was to be allowed as depreciation whereas balance 75 per cent was to be allowed as revenue expenditure. (AY 2005-06)

 

Fenner (India) Ltd. v. ACIT (2012) 139 ITD 406/20 ITR 48 (Chennai)(Trib.)

S.37(1): Business expenditure – Foreign travel expense – Incurred to explore possibility of expansion of business – Deduction allowed even when the orders not booked due to commercial reasons 

 

Where foreign travel expenses are for exploration of possibility of expansion of business, they are allowable even though object for such expenditure incurred has not been materialized i.e. even when the orders are not booked due to commercial reasons. (AY 2005-06)

 

I.J. Tools & Castings (P.) Ltd. v. ACIT  (2012) 139 ITD 414 (Asr.)(Trib.)

S.37(1): Business expenditure – Capital or revenue-– Expenditure on software packages – Revenue in nature.

 

Expenditure incurred on development of various software packages for being sold is revenue expenditure. (AY 2003-04, 2004-05 & 2007-08)

 

Opus Software Solutions Ltd. v. ACIT (2012) 139 ITD 427 (Pune)(Trib.)

S.37(1): Business expenditure-Reimbursable pre-operative expenses  from holding company is not allowable as business expenditure.

 

Impugned expenditure has not been routed through P & L A/c but has been shown in the balance sheet. When the expenditure was incurred, the amount was shown as receivable from the holding company and when the amount was reimbursed, the same was credited to the pre-operative expenses account. Assessee has not claimed any deduction for the expenditure in the year under consideration. In this year the only incident was of reimbursement of the expenditure by the holding company. Therefore, AO was not justified in disallowing the same.  (A.Y. 2003 – 2004)

 

American Express (India) (P) Ltd. v. JCIT (2012) 79 DTR 127/150 TTJ 316 (Delhi)(Trib.)

 

S.37(3): Business expenditure-Guest House expenses- Expenditure incurred to accommodate touring employees is in the nature of guest house hence disallowance is justified.

 

Assessee was not maintaining a separate guest house, but was accommodating touring employees in the house of the estate manager itself- Contention of the assessee that the expenditure in question being amounts reimbursed to the estate manager for the expenses incurred by him in accommodating touring employees is not covered by s. 37(3) cannot be sustained since s. 37(3) referred to inter alia, any expenditure incurred by an assessee on maintenance of any residential accommodation in the nature of guest house or in connection with travelling by an employee or any other person (including hotel expenses or allowances paid in connection with such travelling). It cannot be contended that reimbursement of expenses to the estate manager was not for providing accommodation to touring employees and hence, it would not come within the ambit of sub-s (3) of S. 37.  (A.Ys. 1989-90 to 90-91)

 

Parry Agro Industries Ltd v. Jt. CIT (2012) 79 DTR  204 (Ker)(High Court) 

 

S. 40(ba): Amounts not deductible-– Interest – Payment to trustees and their relatives – As trustee of assessee-trust not AOP, hence no disallowance

 

During assessment proceedings Assessing Officer found that major expenditure claimed by assessee was payment of interest to trustees and their relatives. Assessing Officer applied provisions of section 40(ba) and disallowed interest paid to directors/trustees holding that assessee was liable to be assessed as an AOP and, hence, interest paid could not be allowed as a deduction. It was held that, since, trustees of assessee-trust could not be described as members of AOP, impugned disallowance made by Assessing Officer was to be deleted. (AY 2007-08)

 

ITO v. Kodagu Academy for Education & Culture (2012) 139 ITD 221 (Bang)(Trib.)

S.40(c): Amounts not deductible- Company- Reimbursement of medical expenses-Part of salary-Personal use of motor car- Not perquisite value as per Rule 3.(Income tax Rules 3 )

 

Following the ratio in Ceat Tyres of India Ltd  v. CIT (1994) 121 CTR 80(Bom.) (High Court) reimbursement of medical expenses form part of salary / remuneration for computing disallowance under section 40(c ).Following the ratio in CIT v. British Bank of Middle East (2001) 251 ITR 217(SC) ,it was held that for quantifying disallowance under section 40( c ) expenditure incurred by the company towards the personal use of motor cars provided to the Directors was to be considered and not the perquisite value  as per rule 3 of the Income-tax Rules.(A.Y. 1983-84)     

 

Mather & Platt (I) Ltd v. CIT ( 2012) 210  Taxman 509 (Bom)(High Court)

S.40(a)(ia): Amounts not deductible- Deduction at source-Special Bench verdict that S. 40(a)(ia) applies only to “amounts payable” stayed.

 

      In Merilyn Shipping & Transports v. ACIT (2012)146 TTJ 1 (Vizag), the Special Bench held by a majority that as s. 40(a)(ia) refers to “amount payable“, only the outstanding amount or the provision for expense as of 31st March (and not the amount already paid during the year) is liable for disallowance if TDS is not deducted. It was held that this interpretation was necessary as the Finance Bill proposed the disallowance to apply to any “amount credited or paid” but this was changed to “amount payable” in the Finance Act. On the department’s appeal to the High Court, the High Court has vide order dated 8.10.2012 directed “interim suspension” of the Special Bench’s verdict.

 

CIT v. Merilyn Shipping & Transports (AP) ( High Court)www.itatonlinne.org

 

S.40A(2): Expenses or payments not deductible – Excessive or unreasonable payment of consultancy charges –Disallowance  was set aside.

 

Assessee paid Rs.88.98 lakhs to MMPL as consultancy charges under an agreement for the latter’s advice concerning day to day conduct of management of the assessee company in respect of setting up and monitoring of distribution and marketing management, and manufacturing of `R’ products according to R’s internationally applicable specifications and standards. AO allowed  Rs.30 lakhs as directors remuneration and disallowed Rs.58.98 lakhs under s. 40A(2), holding it as unreasonable and excessive. The Tribunal held that, in order to determine whether the payment is not sustainable, the AO has to first give a finding that the payment made is excessive. If it is found to be so, then the AO has to determine what constitutes the fair market value of the services rendered and disallow the difference between what is claimed and what is fair market value. No such exercise was undertaken by the AO. Further, annual cap of Rs.30 lakhs payable to managerial personnel applied to public limited companies, and not to companies such as the assessee. Disallowance rightly set aside.    (A.Y. 2005 – 06 & 2006 – 07)

 

CIT v. Modi Revlon (P) Ltd (2012) 78 DTR 342 (Delhi)(High Court)

 

S.40A(2): Expenses or payments not deductible-Expenditure on foreign education and travelling of son of managing director-Disallowance was not justified.

 

Expenditure incurred by the assessee company on foreign education and travelling expenses of the son of its managing director who was a trainee of the management of the company and has joined the company after coming back from USA cannot be treated as expenditure of personal nature as the company has been benefited by his higher education and training and, therefore, the impugned expenditure cannot be disallowed u/s. 40A(2). (A.Y. 2001 – 02 & 2004 -05)

 

CIT v. U.P. Asbestos Ltd (2012) 79 DTR 105  (All)(High Court)

 

S.41(1): Profits chargeable to tax- Remission or  cessation of liability – Addition of unsecured loan to income – Nothing to suggest that any benefit either by way of remission or cessation of any liability obtained – Unsecured loans continually admitted in balance sheet is not trading liability hence  Section 41(1) is  not attracted.

 

Unless there is cessation or remission of liability by creditor, liability subsists and assessee having not unilaterally written back accounts of creditors in its profit and loss account, provision of section 41(1) are not attracted. In the instant case, Assessing Officer added amount of unsecured loans to assessee’s income by invoking section 41(1) on ground that these were barred by limitation. It was held that since there was nothing to suggest that assessee obtained any benefit either by way of remission or cessation of any liability and unsecured loans were continually admitted by assessee in its balance sheet and, moreover, these were not trading liability and hence section 41(1) was not attracted to instant case. (AY 2008-09) 

 

ACIT v. Samrat Rice Mills (P.) Ltd. (2012) 54 SOT 1 (Delhi)(Trib.)

S.41(1): Profits chargeable to tax- Remission or   cessation of liability –   Gift – Existence of both personal relationship and business relationship cannot convert a ‘gift’ into a ‘remission of trading liability’, unless situation warrants so.

 

Assessee, trading in textiles, had received certain sum as gift from his maternal uncle by way of book entry, i.e., by crediting his capital account and debiting business account of donor. It was noticed that assessee owed almost similar amount to donor. Despite filing of uncle’s letter confirming payment of gift, Assessing Officer opined that said gift was cessation/remission of trading liability as per section 41(1). It was held that since assessee’s business was in healthy condition, business consideration warranting remission of liability for survival of business was totally absent and personal consideration for giving gift weighed more. Existence of both personal relationship and business relationship cannot convert a ‘gift’ into a ‘remission of trading liability’, unless situation warrants so. Hence section 41(1) could not be invoked. (AY 2007-08)

 

ACIT v. Rajesh Kumar (2012) 54 SOT 28 (Cochin)(Trib.)

S.43(6): Definitions- Written down value- Amalgamation of company-Amalgamated company.

 

As per Expln. 2 to s. 43(6) WDV of assets of the amalgamated company will be the WDV at the hands of the amalgamating company for the immediate preceding previous year arrived at after reducing the depreciation actually allowed in the said preceding previous year. Expln. 3 will have to relevant for the purpose of finding out the WDV of the amalgamating company, which in turn, is that of the amalgamated company. (A.Y. 1994 – 1995 & 1995 – 1996)

 

EID Parry (India) Ltd v. Dy. CIT (2012) 79 DTR 249 (Mad) (High Court)

S.43(6): Definitions- Actual cost-Written down value –Waiver of loan taken on purchase of assets – Depreciation is allowable on actual cost.

 

Where an assessee purchases an asset by taking a loan from a related concern and claims depreciation thereupon and where subsequently such loan was waived and assessee treats such waiver as capital receipt not chargeable to tax and continues to claim depreciation on such asset, revenue cannot do anything to deny claim of depreciation as law has a lacuna in that regard. (A.Y. 2001-02 to 2007-08)

 

Akzo Nobel Coating India (P.) Ltd. v. Dy. CIT (2012) 139 ITD 612 (Bang)(Trib.)

 

S.43B: Deductions on actual payment- Business expenditure – Amendment Retrospective – Provident fund and Employees State Insurance Contributions made after due date but before filing of return – Payments deductible.

 

The Supreme Court in CIT vs. Alom Extrusions Ltd (2009) 319 ITR 306 (SC) has laid down that amendments to section 43B by the Finance Act, 2003, which were made applicable with effect from April 1, 2004, were curative in nature and, hence, would apply retrospectively with effect from April 1, 1988. The provident fund and employees State Insurance contributions to the extent of Rs.12,36,139 were paid by the assessee before filing of the return and proof of payment was submitted before the A.O. The A.O. disallowed the claim holding that the payments were not made by the due date. It was held that the amounts were deductible.

 

CIT v. Manoj Kumar Singh (2012) 349 ITR 230 (All)(High Court)

S.43B: Deductions on actual payment- Tax, duty, Cess or fees  not actually paid – Electricity dues  not fees & hence  cannot be disallowed.

 

The assessee had debited to the profit and loss account a sum of Rs.1,67,10,388 towards “power consumed”. The expenditure had been included under the head of “manufacturing and other expenditure”. Later, contrary to the agreement, the APSEB, raised a higher demand. The assessee filed a writ petition before the court challenging the action for the APSEB and the court while granting stay, directed the APSEB to raise the demand for the net amount after giving the benefit of 25 per cent and the assessee paid 75 per cent of the bill. The balance of Rs.52,23,790/- was shown as liability in the books of account. The AO held that electricity charges come within the ambit of section 43B of the Act with effect from April 1, 1989, and, therefore, could be allowed as deduction only on payment basis.Held, that the provisions of section 43B do not incorporate electricity charges. The assessee had not paid the disputed electricity charges of Rs.52,23,790 to the APSEB as it obtained stay from the court and as such, the provisions of sec. 43B of the Act would not be attracted to such unpaid electricity charges. Further, non payment of such disputed electricity charges to the APSEB could not be termed as “fees” and the revenue had to allow deduction of the amount. (A.Y. 1991-92)

 

CIT v. Andhra Ferro Alloys P. Ltd(2012) 349 ITR 255 (AP)(High Court)

 

S.43B: Deductions on actual payment- Entry tax –Welfare Cess-Failure to enclose with return documents –Disallowance is justified. [S.143(1)(a)].

 

The AO had acted on the basis of the tax audit report and the documents which were enclosed with the return to make the disallowance in accordance with law. Therefore, the adjustment made by the AO was appropriate and in accordance with the then applicable existing provisions. That in respect of entry tax, welfare cess, employers contribution to provident fund and interest paid to public financial institutions, there was failure on the part of the assessee to file the requisite documents as required under sec. 43B.(A.Y.1989-90)

 

Abhishek Cement Ltd. v. UOI (2012) 349 ITR 1 (Delhi)(High Court)

S.43B: Deductions on actual payment-  Sales tax Amnesty Scheme – Not allowed .

 

During relevant assessment year assessee availed certain benefits under sales tax amnesty scheme in order to discharge unpaid sales tax dues of earlier financial years. Assessee claimed deduction of amount paid under amnesty scheme on payment basis under section 43B. It was held that unless in earlier years unpaid amount of sales tax at year-end was added to income, unpaid sales tax paid under amnesty scheme is current year could not be allowed. (AY 2005-06)

 

Deepak Nitrite Ltd. v. Dy.CIT (2012) 139 ITD 213 (Ahd.)(Trib.)

S.44B: Shipping business-Non-residents-Computation- DTAA-Indo-Swiss-Income is taxable in the country of residence and not in India.(.S.90,Art 7,8 )

 

In the absence of any specific article in the Indo Swiss DTAA dealing with taxability of profits derived from the operation of ships in international traffic, para 1 of art. 22 o the DTAA is applicable to it; although the assessee, a Swiss Company, had a PE in India in the year under consideration, the ships i.e.  the property in respect of which shipping income was earned by the assessee company being owned by it were not effectively connected with that PE, and therefore, the case of the assessee is not covered by para 2 of art. 22 and falls in para 1 of the said article, consequently, income is taxable in the country of residence of the assessee company i.e, Switzerland and not in India. (A.Y. 2003 – 2004)

 

ADIT (International Taxation) v. Mediterranean Shipping Co. S.A. (2012) 79 DTR 233/150 TTJ 401 (Mum)(Trib.)

S.44BB: Mineral oils –  Non-residents – Reimbursement of service tax – No element of profit, hence not includible in total receipt

 

Receipts reimbursing fuel charge is part of presumptive income; while reimbursement of service tax is not being a statutory liability would not involve any element of profit and, accordingly, same could not be included in total receipts for determining presumptive income under section 44BB. (AY 2008-09)

 

Sedco Forex International Drilling Inc. v. Addl. DIT (2012) 139 ITD 188 (Delhi)(Trib.)

S.45: Capital gains – Capital loss –Loss on sale of – Non convertible debentures is  a short term capital loss.(S. 2(42B)

 

Loss on sale of non convertible portion of partly convertible debentures. Assessee applied in the rights issue of 15 per cent secured redeemable partly convertible debentures of Rs.400 each of BILT. Part A was the convertible portion having face value of Rs.100 while Part B was the non convertible portion having face value of Rs.300. In terms of an agreement with a bank, non convertible Part B of the PCD having face value of Rs.300 each was sold to the bank at a price of Rs.235 each resulting in loss of Rs.65 per non convertible Part B. Loss suffered by the assessee in the sale of the non convertible Part B portion of PCD to the bank is to be treated as a short term capital loss. (A.Y. 1993 – 1994)

 

JCT Ltd v. CIT (2012) 78 DTR 337/211 Taxman 1 /254 CTR 429(Cal.)(High Court)

 

S.45: Capital gains-Tenancy rights-Cost of acquisition being Nil – Relinquishment of tenancy rights is not chargeable to capital gains.  

 

As per agreement with landlord, the landlord agreed to rent out four existing floors to the assessee, and for three more under construction floors of the building, the assessee agreed to advance to the landlord a sum of Rs.6 lakhs on which the landlord would pay interest @ 6 per cent p.a. Both sides agreed to certain fixed monthly rent on such rental properties. Tenancy did not have a fixed life.  Period for which such advance would be made to the landlord was also not specified. Agreement is a composite agreement under which, besides other terms and conditions, the landlord and tenant agreed that the property would be rented out at a certain monthly rental. It is not possible to segregate a portion of the advance going towards the cost of acquisition of the tenancy rights and a portion going towards reduced rent, if any – Cost of acquisition of property is a payment made or deferred by the purchaser at the time of acquiring such property. Such price cannot be a fluctuating price depending on the period for which the advance is made or held by the landlord. There was thus no cost of acquisition and capital gains were not chargeable on relinquishment of tenancy rights by assessee. (A.Y. 1986 – 87)

 

Amora Chemicals (P) Ltd v. CIT (2012) 78 DTR 375/211 Taxman 324 (Guj.)(High Court)

 

S.45: Capital gains- Accrual-Pledge of shares- Sale  of shares which was pledged, there being no transfer of shares but only pledge of shares for obtaining loan , which the loan was repaid no question of capital gain.   

 

Tribunal has on consideration of all facts concluded that there was no transfer of shares but only a pledge of shares for the purposes of obtaining a loan. Loan was repaid as evident from audited accounts. Evidence in the form of transaction statement of Demat account dated 24th Dec. 2004 was produced at the time of hearing showing the return of 50 crores shares of RI Ltd. to the assessee on 24th Oct. 2012 i.e. the date when the loan was returned by the assessee to one M-Besides, the finding of the Tribunal is a finding of fact and the Revenue has not been able to show that the same was in any manner perverse. There was thus no question of capital gains. (A.Y. 2004 – 2005)

 

CIT v. Reliance Communication Infrastructure Ltd. (2012) 79 DTR 198/254 CTR 251 (Bom.) (High Court)

 

S.45: Capital gains-Computation-Computation-Sale of shares with restrictive covenant is capital receipt.(S.48 )

 

Assessee company having sold its entire shareholding in L&T Ltd. constituting 7.7 per cent of the shares of the latter under an agreement coupled with a restrictive covenant whereby assessee agreed not to acquire any equity shares of L&T Ltd or any other instrument that provides voting rights for a minimum period of five years, 25 per cent of the price received by the assessee for the sale of shares is to be attributed to the non compete agreement having regard to the tenor of cl. 20(8) of SEBI (substantial acquisition of shares and Takeovers) Regulations, 1997; prior to asst. Year 2003-04, non compete fee was a capital receipt not liable to tax and, therefore 25 per cent of the sale consideration of the shares is not liable to tax in asst. Year 2002-03.  (A.Y. 2002 – 2003)

 

Reliance Industries  Ltd v. Addl. CIT (2012) 79 DTR 315 (Mum) (Trib.)

S.45: Capital gains – Business income – Purchase and Sale of shares – Transactions part of investment portfolio and not trading portfolio – Did not have large number of transactions which had frequency, volume, continuity and regularity – Hence, transactions be treated as capital gain.[S.28(i)]

 

Assessee was a sub-broker of shares. He had also carried out purchase and sale of shares on own account. Considering volume of transactions, Assessing Officer opined that activity undertaken by assessee had all ingredients of business and, therefore, income arising from sale of shares was to be taxed as business income. It was held that the assessee was maintaining two separate portfolios i.e., investment portfolios and trading portfolios. Further, shares in question which were subject matter of short term capital gain and long term capital gain were part of investment portfolios and were not part of trading portfolio. Also revenue could not demonstrate that there were large number of transactions which had frequency, volume, continuity and regularity. Hence, it was held that Assessing Officer was to be directed to calculate income arising from sale of shares under head ‘capital gains’. (AY 2005-06)

 

Jignesh Indulal Patel v. ITO (2012) 139 ITD 294 (Mum)(Trib.)

 

S.45: Capital gains-Capital loss – Conversion of US 64 units into US 6.75 per cent tax free bonds-No long term capital loss could be claimed as arising on conversion of US 64 UNITS IN TO 6.75 percent  tax-free bonds.(S. 2(14), 10(33), 10(35), 45(6) )

 

As the transfer in the case of the assessee of units of US 64 by conversion to 6.75 per cent tax free bonds is claimed to have taken place on 31st May, 2003, the provisions of s. 10(33) would be the provision applicable to assess the claim of the assessee for its claim for rights to determine the loss on conversion of the units of US 64 into 6.75 per cent tax free bonds and not s. 10(35). Provisions of S. 10(33) were inserted only with a view to ensure that those who gained on capital by transfer of US 64 scheme do not pay tax on such gain. Provisions are not meant to enable an assessee to claim loss by indexation for set off against other capital gain chargeable to tax. Reasons for insertion of s. 10(33) clearly show that the source viz., transfer of capital asset being units of US 64 itself that has been excluded by the legislature and not the capital gain alone. No long term capital loss could be claimed as arising on conversion of US 64 units into 6.75 per cent tax free bonds. (A.Y. 2004 – 2005)

 

Schrader Duncan Ltd v. Addl. CIT (2012) 79 DTR 25/150 TTJ 559(Mum.) (Trib.)

 

S.45: Capital gains-Long term or short term – Sale of shares allotted under ESOP- Sale after lock in period of three years taxable as long term capital gains. (S. 2(29B), 2(42A))

 

Assessee was granted valuable rights in the shares of ESOP stock of P Inc, the holding company of his employer PIHL, which were held with B Group (trustees). clauses of allotment clearly show that a specified number of shares were allotted to assessee in different years at different prices though distinctive numbers were not allotted- Assessee was not required to pay the purchase price at the time of allotment and the same was to be deducted at the time of sale or redemption of shares. Since there was an apparent fixed consideration of ESOP shares, the right to allotment of specified number of shares accrued to the assessee at the relevant time. Benefit of deferment of payment of purchase price cannot lead to an inference that no right accrued to the assessee. Indistinctive shares were held by a trust on behalf of assessee. Non allotment of distinctive number of shares by the trust is not repugnant to the proposition that assessee’s valuable right of claiming shares was held in trust. Thus, there was a define, valuable and transferable right which can be termed as a capital asset of the assessee. If the AO’s stand that the date of allotment of the shares and sale thereof is the same is accepted, then there will be no capital gain. Therefore, the gains arising on the sale of such rights after the lock in period of three years are taxable as long term capital gains. (A.Y. 2004 – 2005)

 

Abhiram Seth v. Jt. CIT (2012) 79 DTR 63/150 TTJ 228  (Delhi.) (Trib.)

S.45: Capital gains-Long term or short term –Relinquishment of rights under ESOP which was held by him for more than three years  are taxable as long term capital gains. [S.2(29B), 2(42A)]

 

Assessee acquired right in the form of cashless ESOP. He surrendered these rights and obtained certain amount, being the difference of the price of shares between the date of grant and the date of surrender. Assessee has not been allotted any shares nor has he acquired them. He surrendered the right to exercise the option for purchase of shares. Rights which were relinquished by the assessee to earn income were held by him for more than 3 years. Therefore, gains arising therefrom are taxable as long term capital gains. (A.Y. 2006 – 2007)

 

ACIT v. Ambrish Kumar Jhamb (2012) 79 DTR 75/150 TTJ 240 (Delhi) (Trib.)

 

S.45(2): Capital gains – Agricultural land in urban area – No agricultural activities carried on – Land sold in small plots – Capital asset converted into stock in trade Gains assessable u/s. 45(2).

 

 Land in an urban area was partly inherited by the assessee from his father. The remaining part was purchased by him. The assessee converted the land into small plots and sold them from 1984 onwards. Forty three sale deeds were executed between 1984 and 1991. The A.O. took the actual sale consideration for purchases of computation of income for the asst. years 1989-90 to 1991-92. Deduction of the notional value of land covered under passage and drainage was not allowed. This was upheld by the Tribunal. On appeal to the High Court: Held, dismissing the appeals, that since no agricultural operations were carried on, the income tax authorities rightly concluded that the capital asset was converted into stock in trade, and that sales of plots in the case of such land would be treated to be business activity to make profits. The Tribunal was correct in applying section 45(2) of the Act for the purposes of assessment for the relevant asst. years and adopting a notional value for the purposes of fixing the price for land for stamp duty or working out business income from the sale of land. They correctly adopted a method, which was fair and reasonable in arriving at a value of land as on April 1, 1974, to be notional cost of acquisition and applying the depreciated value by 10 per cent of every year for the purposes of arriving at the value in the year 1984. (A.Ys.1989 -90to 1991-92)

 

Rajendra Kumar Dwivedi v. CIT (2012) 349 ITR 432/210 Taxman 588 (All.)(High Court)

S.45(4): Capital gains – Firm – Dissolution of firm – Amount received by partner is not assessable in his hands as capital gains.[S.47(ii)].

 

The business of the firm was carried on till Feb. 28, 1979. Thereafter, disputes arose between the partners of the firm. The assessee sent a notice dated March 7, 1979, dissolving the firm. According to sec. 43 of the Partnership Act, 1932, where the partnership is at will, the firm stands dissolved by any partner giving notice in writing of his intention to dissolve the firm. Therefore, the partnership stood dissolved on March 7, 1979, which fell in the assessment year 1979-80. There were disputes regarding settlement of accounts. Ultimately, under a compromise recorded in the Supreme Court the assessee received Rs.15 lakhs in 1988. The Assessing Officer held that this amount constituted capital gains and this was upheld by the Tribunal. On appeal to the High Court; held, allowing the appeal, that when the assessee was paid Rs.15 lakhs by YKS in full and final settlement towards his 50 per cent share on the dissolution of the firm, there was no “transfer” as understood in law and, consequently, there could not be a tax on capital gains.  Upto the asst. year 1987-88, sec. 47(ii) of the Act,  excluded transactions of dissolution of firms. From the asst. year 1988-89, in the case of dissolution of a firm, only the firm is taxable on capital gains on dissolution of the firm u/s. 45(4) of the Act and not the partner. (A.Y.1989-90)

 

Chalasani Venkateswara Rao v. ITO (2012) 349 ITR 423 (AP)(High Court)

S.50C: Capital gains –Full value of consideration-Stamp valuation- Valuation of property – Report of departmental valuation officer is binding on Assessing Officer.

 

The assessee entered into an agreement for sale of his property in December 2001. The sale deed was registered on April 27, 2002. The AO invoked the provisions of  S. 50C for substitution of the recorded sale consideration of Rs.51,75,000 with Rs.1,38,00,000/- being the valuation done by the stamp valuation authorities.

 

The Dept. valuation officer valued the property in question of Rs.58,50,000 but the AO rejected the Dept. valuation officers report. On appeal to the High Court   it was held  that the valuation by the Dept. valuation officer had to be adopted. It is provided that where the assessee claims that the value adopted or assessed for stamp duty purposes exceeds the fair market value of the property as on the date of transfer, the AO may refer the valuation of the relevant asset to a valuation officer in accordance with sec. 55A. Generally, when the AO has obtained the report of the District valuation officer it is binding on him.  (A.Y.2003-04)

 

CIT v.  Indra Swaroop Bhatnagar(Dr) (2012) 349 ITR 210 (All)(High Court)

S.50C: Capital gains- Full value of consideration- Stamp valuation-Matter remanded.

 

Value adopted or assessed or assessable by stamp duty authority shall be deemed to be the full value of consideration and capital gains shall be computed on the basis of such consideration u/s. 48. Sec. 50C(2) provides two remedies at the option of the assessee, in that, he can either file appeal against stamp value or seek reference to valuation cell. However, where assessee had not availed such opportunity, the AO is bound to follow the clear mandate of law as contained u/s. 50C(2). Where the AO referred the property to the valuation Cell, on the direction of the CIT(A), then, the CIT(A) is not competent to delete the addition, without waiting for such report from the Valuation cell. Matter remanded for reconsideration. (A.Y. 2006 – 07)

 

ITO v.  Inderjit Kaur (Mrs)(2012) 79 DTR 297 (Chd.) (Trib.)

 

54: Capital gains- Due date–Possession-Property used for residence-Exemption-Construction of new house possession was taken afterwards eligible for exemption , further due date under section 139(4) is relevant. [S.139(4)] 

 

Assessee sold his old residential flat on 7th March, 2006, booked a new residential flat with a builder and paid a total sum of Rs.14,62,500/- towards instalments till 16th Fe. 2009. This was a case  of construction of new residential house. Assessee having spent more than the capital gains i.e. Rs.9,98,411 within three years on construction of new residential house, was eligible for exemption u/s.54 even though possession of flat was taken afterwards. Non deposit of balance amount in capital gains account scheme was only a technical default. Further, the due date of filing return under s. 139(1) has to be construed as date of filing return under s. 139(4).  (A. Y. 2006 – 2007)

 

Kishore H. Galaiya v. ITO (2012) 79 DTR 201/150 TTJ 444(Mum)(Trib.)

S.54: Capital gains-Property used for residence-Exemption-Sale of two residential houses  invested  in acquiring single residential house is eligible for exemption.

 

If other conditions as regards time limit etc. Are fulfilled, exemption u/s. 54 is allowable where capital gains arising from sale of two residential houses are invested in a single residential house. On facts, there was no evidence to show that one of the two houses sold was used for business purposes and not as a residential unit. (A.Y. 1998 – 1999)

 

Dy. CIT v. Ranjit Vithaldas (2012) 79 DTR 377/ 150 TTJ 581 (Mum.)(Trib.)

S.54EC: Capital gains- Investment in bonds-Limit of 50 lakhs- limit of Rs. 50L does not apply to the transaction but financial year. Cheque has to be issued within 6 months. Encashment of Cheque & Allottment of Bonds beyond 6 months is irrelevant.

 

In AY 2008-09, the assessee sold land on 14.12.2007 and computed capital gains of Rs. 1.57 crores. He invested Rs.50 lakhs on 3.3.2008 (FY 2007-08) in REC Bonds and Rs. 50 lakhs on 4.6.2008 (FY 2008-09) in NHAI Bonds and claimed a deduction of Rs. 1 crore u/s 54EC. The NHAI Bonds were allotted on 30.6.2008. The AO & CIT(A) restricted the assessee’s claim to Rs. 50 lakhs on the ground that (i) the Proviso to s. 54EC imposed a ceiling of Rs. 50 lakhs for the investment and (ii) the allotment of the NHAI Bonds was made beyond 6 months of the date of transfer. On appeal by the assessee, HELD allowing the appeal:

 

(i)         In Aspi Ginwala (ITAT Ahmedabad) it was held that the Proviso to s. 54EC merely restricted the investment that can be made in one FY to Rs. 50 Lkahs but it did not restrict the exemption to Rs.50 lakhs. However, a contrary view was taken in Raj Kumar Jain & Sons (ITAT Jaipur) that the exemption u/s 54EC had to be restricted to Rs.50 lakhs. However, Circular no.3/2008 dated 12.3.2008 issued by the CBDT makes it clear that the Proviso only intended to restrict the investment in a particular financial year and did not intend to restrict the maximum amount of exemption permissible u/s 54EC. The fact that the Proviso uses the words “in a financial year” fortifies this interpretation. Accordingly, it has to be held that the assessee is entitled to total deduction of Rs. 1 crores in respect of the investment of Rs. 50 lakhs made in each financial year;

 

(ii)        The cheque was issued to NHAI before the expiry of 6 months from the date of transfer. The fact that the allotment of the Bonds was made after 6 months is irrelevant. A payment by cheque which is encashed subsequently relates back to the date of receipt of the cheque. The date of payment is the date of delivery of the cheque and not the date of its encashment (Kumarpal Amrutlal Doshi (ITAT Mumbai) followed).(A. Y. 2008-09)

 

Vivek Jairazbhoy v. DCIT (Bang)(Trib.) www.itatonline.org

S.54F: Capital gains- Investment in residential house-Mere construction of sunshade is not construction of new house hence not eligible for exemption.

 

For the purpose of s. 54F, the residential house so constructed is referred to as new asset. Obviously, a new house is not something which is either an extension or addition made to an existing structure. In the present case, approval plan of the Corporation pertains only to roof changing (sunshade projection) and for construction/extension of/to the first floor. Assessee was not therefore entitled to exemption under s. 54F.

 

Pushpa v. ITO (2012) 79 DTR 218  (Ker)(High Court)

S.54F: Capital gains –Investment in residential house- Exemption – Capital gains earned had been utilized for other purposes – Borrowed funds were deposited in capital gains investment account, benefit of section 54F exemption cannot be denied.

 

Merely because capital gains earned had been utilized for other purposes and borrowed funds were deposited in capital gains investment account, benefit of section 54F exemption cannot be denied. (A.Y. 2008-09)

 

J.V. Krishna Rao v. Dy. CIT (2012) 54 SOT 44 (Hyd.) (Trib.) 

S.54F: Capital gains- Investment in residential house- Flat purchased in the name of minor assessee exemption is allowable.

 

House purchased in the name of daughter. Assessee having purchased flat in the name of his minor daughter is entitled to deduction u/s. 54F. A bare reading of s. 54F(1) makes it clear that there is no requirement that the house has to be purchased in the name of the assessee only.  (A.Y. 2008 – 2009)

 

N. Ram Kumar v. ACIT (2012) 79 DTR 386/150 TTJ 656 (Hyd.) (Trib.)

S.54F: Capital gains- Investment in residential house-Purchase of house outside India is eligible for exemption.

 

There is nothing in s. 54F to suggest that the new residential house acquired should be situated in India and therefore, assessee is eligible to claim exemption u/s. 54F notwithstanding the fact that the house property purchased in outside India. (A.Y. 2009 – 2010)

 

Vinay Mishra v. ACIT (2012) 79 DTR 1/20 ITR 129 (Bang) (Trib.)

 

S.55A: Capital gains- Reference to valuation Officer- Held to be valid during the pendency of  assessment proceedings .

 

Original computation of the capital gains as per the return field by the assessee was Rs.130.19 crores – After the revised computation/modification of the capital gains was filed, the figure of capital gains came down drastically to Rs.14,07,16,551. There was thus a reduction of approximately Rs.116 crores in the computation of the capital gains and this was significantly due to the claim that the  fair market value of the land as on 1st April 1981 was Rs.21,72,95,000/- It was on this basis that the AO took the view that the valuer’s report field by the assessee showed the figure on higher side and came to the conclusion that the matter should be referred to the DVO for valuation. It cannot, therefore, be said that he had no basis or material to form the opinion that a reference ought to be made to the DVO. Reference was made before the assessment order was passed and during the pendency of the assessment proceedings. It is not necessary to examine the contention of the assessee that once the assessment proceedings are completed, the pending proceedings under sec. 55A become infructuous or invalid or get automatically terminated. (A. Y. 2007 – 2008)

 

ACC Ltd v. District Valuation Officer & Ors (2012) 79 DTR  365(Delhi)(High Court)

S.56: Income from other sources-Compensation-Capital receipt-The matter was set aside to the Assessing Officer to decide the issue for de novo consideration.(S.4  )

 

The question raised before the Court was “whether the sum of Rs 75,00,000/- received by the assessee as compensation from  Jenson and Nichloson Limited under consent decree dated 1st  September ,1998 in Suit no .321B of 1996  passed by the Calcutta High Court was at all taxable under section 56 of the Income-tax  Act 1961”.The court opined  that the Assessing officer has not looked in to various documents , which are relevant to decide the issue. Accordingly the matter was remitted to the Assessing Officer to decide the entire case for de novo, according to law.

 

CIT v. Vasudhara Holdings Ltd (2012) 210 Taxman 568/ 254 CTR 341/ 79 DTR 351 (SC)

S.56(2) (vi): Income from other sources – Dissolution of trust – Equal distribution of asset – Amount received by a person as beneficiaries not be termed as amount received ‘without consideration’, hence, no addition could be made

 

Assessee and his wife were trustees and their two daughters were beneficiaries in a private trust created by assessee’s mother. Subsequently, assessee and his wife were added as additional beneficiaries and their daughters, on being major, relinquished their rights, etc. on property of trust. On dissolution of trust, assets were equally distributed between assessee and his wife. It was held that amount received by a person as beneficiaries on dissolution of trust cannot be termed to be an amount received ‘without consideration’ and, hence, no addition could be made. (AY 2007-08)

 

Ashok C. Pratap v. Addl. CIT (2012) 139 ITD 533/79 DTR 9/150 TTJ 137 (Mum)(Trib.)

S.68: Cash credits-Gift from Non-residents- Matter remanded back to tribunal to consider the financial capacity of donors.

 

Assessee received gifts from two NRIs. The Assessing Officer assessed the said amounts under section 68 on the ground that the assessee has not led evidence that the alleged donors  had adequate funds . The Tribunal deleted the addition only on the ground that the donors are assessed to tax at Singapore. On appeal by the Revenue , High Court dismissed the appeal of revenue . On appeal to Supreme Court , the Court  remanded the matter back to the Tribunal for disposal a fresh in the light of the judgment in case of CIT v. Mohankala (2007)291 ITR 278/  6 SCC 21. The Court also observed that it is open to the assessee to produce relevant evidence.(A.Y. 1994-95 , 1995-96)

 

P.R. Ganapathy ( 2012) 210 Taxman 572/254 CTR 336/79 DTR 300(SC)   

S.68: Cash credits-Genuineness of gift- NRE–Additions cannot be made merely because entire transcript of NRE account was not furnished.

 

Return filed by donor and his wife on the face of record reveals the creditworthiness of the donor which according to admitted fact on record is US$ 1.16 lacs. Once genuineness of return is not in dispute then there appears to be no reason to disbelieve that the amount was paid by donor. Once the income of the donor has not been disbelieved by the assessing authority then payment of meagre amount of Rs.10 lacs by donor should not be doubted. Merely because the entire transcript of NRE account was not furnished shall not make out a case to disbelieve the amount paid by donor to the assessee. Tribunal was therefore justified in deleting the addition. (A. Y. 1996 – 97)

 

CIT v. S.K. Jain (2012) 79 DTR 220/254 CTR 652(All)(High Court)

S.68: Cash credits-Share application money- Despite PAN & Bank details, addition of share allotment money valid if applicants do not respond to summons.

 

      The assessee, a company, received Rs. 35 lakhs towards share allotment. As the shareholders did not respond to summons, the AO assessed the said sum as an unexplained credit u/s 68. On appeal, the CIT(A) and Tribunal relied on CIT vs Lovely Exports (2008)216 CTR 195 (SC) & CIT vs Divine Leasing & Finance Ltd.(2008) 299 ITR 268 (Del) held that as the assessee had furnished the PAN, bank details and other particulars of the share applicants, it had discharged the onus of proving the identity and credit-worthiness of the investors and that the transactions were not bogus. It was also held that the AO ought to have made enquiries to establish that the investors had given accommodation entries to the assessee and that the money received from them was the assessee’s own undisclosed income. On appeal by the department to the High Court, held reversing the CIT(A) & Tribunal:

 

Though in previous decisions (Lovely Exports) it was held that the assessee cannot be faulted if the share applicants do not respond to summons and that the Revenue authorities have the wherewithal to compel anyone to attend legal proceedings, this is merely one aspect.  An assessee’s duty to establish the source of the funds does not cease by merely furnishing the names, addresses and PAN particulars, or relying on entries in the Registrar of Companies website. The company is usually a private one and the share applicants are known to it since the shares are issued on private placement basis. If the assessee has access to the share applicant’s PAN or bank account statement, the relationship is closer than arm’s length. Its request to such concerns to participate in income tax proceedings, would, from a pragmatic perspective, be quite strong. Also, the concept of “shifting onus” does not mean that once certain facts are provided, the assessee’s duties are over. If on verification, the AO cannot contact the share applicants, or the information becomes unverifiable, the onus shifts back to the assessee. At that stage, if it falters, the consequence may well be an addition u/s 68 (A. Govindarajulu Mudaliar v CIT (1958) 34 ITR 807(SC) followed).

 

CIT v. N. R. Portfolio Pvt. Ltd (Delhi) (High Court) www.itatonline.org

S.68: Cash credits-share application money –Shares  were  purchased in the name of persons and money was contributed by others hence   addition was held to be justified.

 

Only in cases where there are no existing persons having a link with the deposit in the sense that it is not a case of benami transaction and the very existence of such persons is in question, the amount can be treated as  undisclosed income. However, in a case of benami transaction where the shares are shown in the name of one person whereas the money might have been provided by some other person, the credit entries are not to be treated as undisclosed income of the company. In the instant case, enquiry was conducted regarding share applicants of the assessee company who were stated to be spread over several cities. As regards the enquiry made at Jaipur, some of the shares were transferred to one P. There are no details as to how many shares stood in the name of P. This requires enquiry at the hands of the AO. Amount which is referable to the shares transferred to P has to be necessarily excluded from the undisclosed income of the company. Only the unexplained balance amount not standing in the name of any existing person can be treated as undisclosed income of the assessee company. As far as the enquiry at Thanjavur is concerned, the share applications were in the name of M who happened to be the brother of C, one of the directors of the company, while the shares  were allotted to C-Amount deposited by M could not be treated as undisclosed income at the hands of the company. As regards the enquiry made at Chennai, a sum of Rs.1,70,000 remains unexplained by the assessee. Barring this amount, the remaining amount of Rs.1,41,000 merits to be treated as explained. Once the assessee has not substantiated its case before the AO as to certain persons who had ostensibly made applications for allotment of shares and contributed money, AO rightly took recourse to s. 68 and treated the unexplained amount as the hands of the assessee. (Block Period 24th Feb, 1988 to 24th Feb, 1998)

 

Rajani Hotels Ltd v. Dy. CIT (2012) 79 DTR 185 (Mad) (High Court)

S.68: Cash   credits – Failure to prove identity of shareholders – Addition sustained. 

 

Where assessee company failed to prove identity of alleged shareholders and, moreover, it was also apparent that amount was deposited in bank accounts of those investors immediately prior to issuing cheques to assessee, Assessing Officer was justified in making addition under section 68 in respect of share capital. (AY 2007-08)

 

Vaibhav Cotton (P) Ltd. v. ITO (2012) 139 ITD 264 (Indore)(Trib.)

S.69: Unexplained investment – Capital Gains – No other material except report of valuation cell – Report of valuation cell not on record – Reference – Question returned unanswered.

 

The assessee purchased three properties and sold them, declared capital gains for the asst. years 1990-91, 1994-95 and 1994-95. The A.O. referred the matter to the valuation cell and recomputed the purchase price and sale price. The Tribunal held that no incriminating material was found during the course of search and the transactions were duly reflected in the returns filed by the assessee in the normal course. It pointed out that except for the valuation officer’s report, there was no other material to establish that the assessee had made investment from undisclosed sources or had received under hand consideration. Held, that the revenue had not placed on record the valuation officer’s report and in the absence of the data and material, it was impossible to verify whether or not the findings recorded by the Commissioner (Appeals) and the Tribunal were perverse. In the absence of details and material on record question could not be answered. (Block period 1988-89 to 1998-99)

 

CIT v. A.K. Jain (2012) 349 ITR 236 (Delhi)(High Court)        

S.69B:  Amounts of investments not fully disclosed in books of account—Addition as unexplained investment in property was not justified.

 

Sec. 69B in terms requires that the AO has to first “find” that the assessee has “expended” an amount which he has not fully recorded in his books of account. It is only then that the burden shifts to the assessee to furnish a satisfactory explanation. A “finding” obviously should rest on evidence. In the present case, it is common ground that no incriminating material was seized during the search which revealed any understatement of the purchase price. That is precisely the reason why the AO had to resort to r. 3 of Sch.III to the WT Act. This rule does not even claim to estimate the “fair market value” of an asset; it merely lays down a procedure for computing the value of an asset for the purposes of the WT Act. There is a fundamental fallacy in invoking the provisions of the WT Act to the application of s. 69B, notwithstanding that both the Acts are cognate and have even been said to constitute an integrated scheme of taxation. Sec. 69B does not permit an inference to be drawn from the circumstances surrounding the transaction that the purchaser of the property must have paid more than what was actually recorded in his books of account. Since the entire case has proceeded on the assumption that there was understatement of the investment, without a finding that the assessee invested more than what was recorded in the books of account, the decision of the IT authorities cannot be approved- sec. 69B was wrongly invoked.

 

CIT v. Dinesh Jain (HUF) (2012) 79 DTR 457/211 Taxman 23/254 CTR 534 (Delhi)(High Court)

 

CIT v. Dinesh Jain ( 2012) 79 DTR 457/254 CTR 534 /211 Taxman 23 (Delhi ) (High Court)

 

CIT v. Lata Jain ( 2012) 79 DTR 457/254 CTR 534 /211 Taxman 23 (Delhi ) (High Court) 

S.69B: Amounts of investments not fully disclosed in books of account—Cost of construction -Report of DVO-Addition was deleted.(S.142A )

 

In the absence of finding rejecting the accounts of the assessee reference to the DVO could not have been made by the AO. That apart, variation between the total cost of construction disclosed by the assessee and that estimated by the DVO is only 3.86 per cent. This is a very minor variation having regard to the large amounts involved. Besides, since the AO did not examine the variations with specific reference to any item of expenditure that was unreasonable or showed wide variation, this difference can also be attributed to differing perceptions and the practice adopted by the concerned business activity. Therefore, there is no infirmity in the findings of the Tribunal upholding the order of the CIT(A) deleting the impugned additions. No substantial question of law arises for consideration. (A.Y. 2002 – 2003 to 2007 – 2008)

 

CIT v. Ambience Developers & Infrastructure (P) Ltd. (2012) 79 DTR 373/254 CTR 527  (Delhi) (High Court)

S.69C: Unexplained expenditure-Search and seizure– Cash flow statement- Order of High Court overruling the judgment of Commissioner (Appeals) and Tribunal was set aside and directed the Commissioner (Appeals) to decide on merit.(S.132(4), 158BB,158BC )

 

High Court  over-ruled the  decisions of the decisions of Tribunal and Commissioner (Appeals) on factual aspects, stating that cash flow statements submitted by the assessee were not supported by documents .On appeal the Court held that High Court should have remitted  case to Commissioner (Appeals) giving opportunity to assessee to produce relevant documents . Accordingly the  order of High Court was set aside and the matter was remitted to the file of Commissioner (Appeals) to decide the appeal on merits.(A.y. 1991-92, 1992-93 , 1996-97)

 

M.K. Shanmugam ( 2012)349 ITR 384/ 210 Taxman 574 /254 CTR 317(SC)

 

Editorial-  CIT v. M.K.Shanmugam ( 2011) 203 Taxman 94(2012) 349 ITR 369/254 CTR 318/79 DTR 269  (Mad) (High Court) , set aside.    

S.73: Losses –Short term-loss Speculation loss- Assessee company not involved in business of sale and purchase of shares, loss cannot be assessed as speculation loss .Loss may be allowed as speculation loss.

 

Assessee company was not involved in the business of sale and purchase of shares, and merely indulging in purchase and sale of shares for investment is not business activity and therefore explanation to S. 73 was not attracted. The loss  has to be allowed as short term capital loss. The reasoning of  CIT (A )  that  there was no pressing need for the appellant company to sell shares  within a  short span of its acquisition  was held to be perverse .(A.Y. 1991 – 92)

 

Standipack (P) Ltd v. CIT (2012) 78 DTR 252/211 Taxman 144 (Cal.)(High Court)

S.80G(5): Deduction-Donation- Hindu – Recognition –Worshipping lord Shiva, Hanumanji and goddess Durga and maintaining of temple  cannot be considered as  religion hence registration to be granted.

 

Hindu is neither a separate community nor a separate religion and the object of worshipping Lord Shiva, Hanumanji and goddess Durga and maintaining of temple cannot be regarded as object for advancement, support or propagation of a particular religion and, therefore, approval under s.80G(5)(vi) could not be refused to the assessee trust on the ground that the trust exists for religious object; CIT is directed to grant approval to the assessee trust.

 

Shiv Mandir Devsttan Panch Committee Sanstan v. CIT (2012) 79 DTR 276/150 TTJ 452 (Nag) (Trib.)

S.80HHC: Deduction-Export business-Interest on loans given to sister concerns-Income from other sources and not business income.

 

Interest on loans given to sister concerns constituted `income from other sources’ and not `business income’ and same was required to be excluded while computing profits for the purposes of deduction under sec. 80HHC.    (A.Y.1989-90)

 

Tanna Exports Ltd. v. CIT (2012) 78 DTR 395 (Bom.)(High Court)

S.80HHC: Deduction-Export business-Deduction u/s 80IA should be reduced in proportion of  export turn over to total turnover .

 

Export profits of the export units which have been allowed as deduction u/s. 80IA/80-IB should be reduced in proportion of export turnover to total turnover while allowing deduction u/s. 80HHC and not the entire deduction allowed u/s. 80IA/80-IB subject to the condition that total deduction should not exceed the eligible profits of the undertaking. (A.Y. 2002 – 2003)

 

Reliance Industries  Ltd v. Addl. CIT (2012) 79 DTR 315  (Mum) (Trib.)

S.80HHE: Deduction-Export of computer software-Assessee has no option to claim deduction under   section  80-O.(S.80O )

 

It is no doubt true that prior to the introduction of s. 80HHE under the Finance (No.2) Act, 1991 w.e.f. 1st April, 1991, there was no specific head under which technical or professional services would qualify for deduction other than under s. 80-O. However, with the introduction of s. 80HHE w.e.f. 1st April 1991, one finds a specific provision for granting deduction of any income earned on providing technical services outside India in connection with the development or production of computer software. Specific provision excludes a general provision. Given the fact that cl. (ii) to sub-S. (1) of s. 80HHE restricts technical services rendered outside India as one in connection with the development or production of computer  software, the assessee could not fall back on s. 80-O for the purpose of claiming a better deduction. In the circumstances, Tribunal was not correct in holding that the assessee had a choice of choosing either s. 80HHE or s. 80-O, depending on the nature of the profession. (A.Ys. 1993-94 & 1995-96)

 

CIT v. B.T. System & Service Ltd.(2012) 79 DTR 118/254 CTR 411 (Mad)(High Court)

S.80HHF: Deduction-Export or transfer of film software-Computation- 90% of net commission received by assessee from profits of business for computation of deduction under section 80HHF, was remanded back to High Court.

 

The question before the court was “whether on the facts and in the circumstances of the case and in law ,the income –tax  Appellate Tribunal was correct in directing the department to  reduce 90% of the net interest commission received by the assessee from the profits of the  business for computation of deduction under section 80HHF of the income –tax Act, 1961”.

The department argued that the provisions of section 80HHF may not be identical to the provisions section 80HHC .The  assessee contended the provisions are identical. High Court remitted back to the High  Court to decide expeditiously , if possible within three months .It may also consider the judgment in case of ACG Associated Capsules (P) Ltd v.CIT ( 2012)343 ITR 89/ 205 Taxman 136/247 CTR 372/ 67 DTR 205(SC).

 

CIT v. Star India (P)  Ltd (2012) 210 Taxman 575/254 CTR 335/79 DTR 287   (SC)

S.80IA:Industrial undertaking – Windmill for power generation – Depreciation – Set off of depreciation loss/income from power generation business against profits of manufacturing of copper wires.

 

The assessee   installed a windmill for power generation and claimed depreciation. It showed the profits from its business activities at Rs.60 lakhs and after claiming depreciation of Rs.55.56 lakhs, furnished “nil” income. The depreciation was disallowed by the Assessing Officer on the ground that the windmill was not installed during the asst. years 2005-06. Thereafter, it filed a revised statement of income. In the revised computation, it  claimed deduction of depreciation on windmill of Rs.73.20 lakhs against the business profit of Rs.60 lakhs and the remaining balance of Rs.13.19 lakhs was carried forward to the next accounting year. Even then the total income under the revised statement of income was nil. The assessee also made a claim u/s. 80-IA. The A.O. held that the non taxable income u/s. 80IA could not be set off against eligible business income and thus loss/depreciation of Rs.73.20 lakhs from the windmill was carried forward to the subsequent year to set off against the eligible income of the assessee. The Tribunal held the carried forward loss of the eligible business was required to  be set off first against the income of the subsequent years of the eligible business while determining the profits eligible for deduction u/s. 80IA and set off losses from other sources under the same head was not permissible. On appeal it was held that the order of the Tribunal directing the A.O. to set off the loss/unabsorbed depreciation of the eligible business u/s. 80IA(4) against the income from other non eligible business carried out by the assessee was not perverse and arbitrary. Accordingly the appeal of revenue was dismissed.(A.Y.2005-06)

 

CIT v. Swarnagiri Wire Insulations P Ltd (2012) 349 ITR 245 (Karn.)(High Court)

S.80-IA: Deductions-Industrial undertakings-Infrastructure development- Development and operation of bio – medical waste treatment facility- Entitled to exemption.

 

Assessee entered into an agreement with Surat Municipal Corpn. and Municipal council of Udaipur for development of infrastructure meant for solid waste management system. As per the terms of the agreements, assessee has to set up bio medical waste treatment facility at its own cost. Local body only provided land for the  purpose of construction of the said facilities. Agreement with Surat Municipal Corpn. has been entered into for seven years. Assessee has to install necessary equipment and machinery. It is entitled to charge for the treatment at the rate fixed by the Municipal Corpn. from time to time. As per the agreement with Udaipur Municipal Council, the said facility is to be operated without by any hindrance during the term of lease for thirty years on payment of token lease amount of Rs.1. Simply because the collector is authorized to observe the operation and maintenance of the facility, it does not mean that the Municipal Council has financed the said project. Further, assessee has shown the said “infrastructure” as fixed assets in its balance sheets and claimed depreciation thereon which has been allowed by the Revenue. Therefore, assessee has acted as a “developer” and not merely as a “contractor”. Assessee has raised bills and TDS certificates have been issued by the Municipal Corporation for waste treatment charges and the services rendered to various hospitals and not in respect of any construction or development. Thus, the contention of the Revenue that since the assessee has been mentioned as “contractor” in the TDS certificates it has not acted as a “developer” cannot be accepted. These TDS certificates were only in respect of the charges for treatment of waste and not in respect of developing or construction of said infrastructure facility. Therefore, the assessee is entitled for deduction u/s. 80IA(4). (A.Ys. 2004 – 2005, 2005 – 2006 & 2007 – 2008)

 

En-Vision Enviro Engineers (P) Ltd v. DCIT (2012) 69 DTR 357 (Ahd.) (Trib.)

S.80IB: Deduction – Industrial undertakings- Industrial undertakings other than infrastructure development undertaking – Mere handling and transportation of food grains and storing same at godowns – Not eligible for deduction,  nothing attributed towards infrastructure development

 

Main purpose of S. 80IB(11) is construction of godowns specifically for stocking food grains for greater efficiency in grain management system and minimize post harvest food grain losses. Hence, it was held that mere handling and transportation of food grains and storing same at godowns owned by Food Corporation of India (FCI) would not make assessee eligible for deduction u/s 80IB(11) as it is nothing attributed towards infrastructure development. (AY 2005-06 & 2006 -07)

 

ITO v. Shankar K. Bhanage (2012) 139 ITD 39 (Mum.)(Trib.)

S.80IB (10): Deduction –Undertaking- Development and construction-– Assessee constructs a building as a developer at its own cost and gets a percentage of built up area in consideration from land owner is called as builder.

 

Where assessee constructs a building as a developer at its own cost and gets a percentage of built up area in consideration from land owner, assessee is said to be a builder and not a contractor and, therefore, is eligible for deduction under section 80-IB(10). (AY 2006-07)

 

Kura Homes P. Ltd. v. ITO (2012) 139 ITD 445 (Hyd.) (Trib.)

S.80IB(10): Deduction – Undertaking- Development and construction- Developer follows percentage completion method – Profit attributable to completed project is taxed in respective year – Deduction be granted in that year.

 

Where a developer follows percentage completion method, and profit attributable to completed project is taxed in respective year, deduction under section 80-IB(10) is also to be granted simultaneously in that year. (AY 2006-07)

 

Kura Homes P. Ltd. v. ITO (2012) 139 ITD 445 (Hyd)(Trib.)

 

S.80-IC: Deduction-Special category States-Interest income is eligible for deduction.

 

Interest received from the Irrigation Department, Govt. of Assam as per the order of the Court for the delay involved in the payment in connection with delivery of goods to Irrigation Department constituted income derived from the industrial undertaking of the assessee and is eligible for deduction us. 80IC. (A.Y. 2004 – 2005)

 

CIT v. Universal Pipes (P) Ltd (2012) 79 DTR 175/211 Taxman 420(Gau.)(High Court)

 

S.80-IC: Deduction-Special category States-Manufacture or production of fragrance, attar, etc. Deduction is available.(S.2(29BA)

 

Assessee engaged in manufacture of fragrance, attar, etc. In the state of Uttarkhand was entitled to deduction u/s. 80-IC; end product manufactured by the assessee and sold is altogether different from distilled oil. Distilled oil is one of the raw material for producing fragrant, fragrant compound or attar. (A.Y. 2007-2008)

 

Natural Fragrances v. Dy. CIT (2012) 79 DTR 181/150 TTJ 211(Delhi) (Trib.)

S.80P: Deduction- Co-operative societies-Business of banking – Interest on deposit made out of non SLR funds is eligible for deduction.

 

Interest on deposits made out of non SLR funds is attributable to the business of banking; deduction u/s. 80P(2)(a)(i) is available in respect of such interest income.

 

CIT v. Kangra Central Co-op. Bank Ltd. (2012) 79 DTR 137/ 254 CTR 306/211 Taxman 529 (HP)(High Court)

 

CIT v. Jogindra Central CO-Operative Bank Ltd ( 2012) 254  CTR 306 (HP)(High Court)

 

S.80P: Deduction – Co-Operative societies – Rental income of bank by letting out property – Be assessed as house property is not eligible for deduction .

 

Rental income of bank by letting out property, even if commercial premises/assets, has to be assessed as ‘Income from house property’ as it cannot be construed as ‘income from banking activity’. It was held that a co-operative bank is not eligible for deduction under section 80P(2)(a)(i) in respect of such rental income. (AY 2006-07)

 

ITO v. Kerela State Cooperative Bank Ltd. (2012) 139 ITD 601 (Coch.)(Trib.)

S.90: Double taxation relief-Transfer pricing- DRP failed to dispose of objections raised by assessee by passing a reasoned and speaking order – Matter remanded back.

 

Assessee, a UAE based company, was engaged in business of shipping operations – It was running feeder service between India and Dubai by using its own vessels as well as chartered vessels. Assessee received certain amount as ‘slot hire charges’. Assessing Officer referred draft assessment order to DRP proposing to tax aforesaid charges received by assessee at rate of 15 per cent under section 44B – Assessee raised objection before DRP submitting that its ‘slot hire charges’ were from shipping operations and were covered by Article 8 of DTAA between India and UAE, and, therefore, same was not taxable in India. It was held that where DRP failed to dispose of objections raised by assessee by passing a reasoned and speaking order, matter was to be remanded back for disposal afresh. (A.Y. 2007-08)

 

Orient Shipping Services v. Addl.  CIT (2012) 54 SOT 150 (Mum.)(Trib.)

S.92C: Avoidance of tax- Transfer pricing-Arms’ length price- Selection of comparables.-Matter set aside to the Tribunal .

 

TPO and the AO ignored certain comparables on the ground that they pertain to loss making / continuously loss making organizations. Assessee however contended that it was necessary to consider a variety of entities, both loss making and otherwise. Assessee disputed the approach on the one hand excluding the loss making entities but considering the entities that had abnormally high profits.  Remand of matter by Tribunal with a direction to give sufficient opportunity to the assessee to file fresh comparables and to decide proper ALP. Tribunal does not state that the material, including the comparables, furnished by the assessee were inadequate. In view of statement of assessee that it does not wish to furnish any further material and wants the matter to be decided on the basis of material already on record, order of remand passed by Tribunal set aside with direction to Tribunal to decide the matter.  (A.Y. 2003 – 2004)

 

Mitsui O.S.K. Lines Maritime (India) P. Ltd. v.  Dy. CIT (2012) 79 DTR 261 (Bom.) (High Court)

 

 

S.92C: Avoidance of tax -Transfer pricing-TNMM- TPO is entitled to collect information under section 133(6), however if it is used against the assessee, assessee  should be given an opportunity-Comparables cannot be ignored on ground of abnormal profits/losses if they are functionally comparable.(S.133(6))

 

The assessee provided software research & development services to its’ USA based AE and was remunerated on a ‘cost plus’ basis. The assessee claimed that applying the TNMM and using operating profits to cost as the Profit Level Indicator (“PLI”), its PLI of 9.98% was at arms length. The TPO & DRP rejected the assessee’s claim and computed the ALP at 24.35% and made an adjustment of Rs. 6.20 crores. The Tribunal had to consider the following issues: (i) whether in selecting a comparable, a turnover filter has to be adopted, (ii) whether companies with abnormal margins can be regarded as comparable, (iii) whether a filter can be applied to distinguish between companies earning revenue from rendering “onsite services” as compared to those rendering “offshore services” even though there is no functional difference between the two activities & (iv) whether the TPO is confined to information in public domain or he can collect information u/s 133(6). Held by the Tribunal:

 

(i)         S. 92C & Rule 10B(2) clearly lay down the principle that the turnover filter is an important criteria in choosing the comparables because significant differences in size of the companies would impact comparability even there is no functional difference in their activities. Size matters in business because a big company would be in a position to bargain the price and also attract more customers. It would also have a broad base of skilled employees who are able to give better output. A small company may not have these benefits and therefore, the turnover also would come down reducing profit margin. As the assessee’s turnover is Rs. 47 crores, only companies with a turnover between Rs. 1 to Rs. 200 crore should be considered for comparability ( DCIT v Quark Systems (P) Ltd. (2010) 38 SOT 307(Chd)(SB), Genesis Integrating Systems & OECD TP Guidelines, 2010, ICAI TP Guidelines followed);

 

(ii)        U/s 92C & Rule 10B(2), there is no bar to considering companies with either abnormal profits or abnormal losses as comparable to the tested party, as long as they are functionally comparable. This issue does not arise in the OECD guidelines and the US TP regulations because they advocate the quartile method for determining ALP under which companies that fall in the extreme quartiles get excluded and only those that fall in the middle quartiles are reckoned for comparability. Cases of either abnormal profits or losses (referred to as outliners) get automatically excluded. However, Indian regulations specifically deviate from OECD guidelines and provide Arithmetic Mean method for determining ALP. In the arithmetic mean method, all companies that are in the sample are considered, without exception and the average of all the companies is considered as the ALP. Hence, while the general rule that companies with abnormal profits should be excluded may be in tune with the OECD guidelines, it is not in tune with Indian TP regulations. However, if there are specific reasons for abnormal profits or losses or other general reasons as to why they should not be regarded as comparables, then they can be excluded for comparability. It is for the Assessee to demonstrate existence of abnormal factors. On facts, as the assessee has not shown any factors for abnormal profits, no comparable can be excluded for that reason (contra view in Quark Systems & Sap Labs noted);

 

(iii)       Though the functions performed by offshore service providers and onsite service providers is the same, i.e. development of computer software, under Rule 10B(2)(b) one has to have regard to the functions performed, taking into account assets employed or to be employed and the risks assumed by the respective parties to the transactions. The “market conditions” are different for on-site and offshore work because in onsite development of computer software, the assessee does not employ assets or assume many risks. Even the per hour rate is different. The fact that in TNMM it is only the margins in an uncontrolled transaction that is tested does not mean that the fact that pricing will have an effect on the margins obtained in a transaction can be ignored. Companies which generate more than 75% of the export revenues from onsite operations outside India are effectively companies working outside India having their own geographical markets, cost of labour etc., and also return commensurate with the economic conditions in those countries. Thus assets and risk profile, pricing as well as prevailing market conditions are different in predominantly onsite companies from predominantly offshore companies like the assessee. Since, the entire operations of the assessee took place offshore i.e. in India; it should be compared with companies with major operations offshore, due to the reason that the economics and profitability of onsite operations are different from that of offshore business model;

 

(iv)       The TPO is entitled to collect information u/s 133(6) though if it is sought to be used against the assessee, it must be furnished to the assessee and his objections taken into account. If the assessee seeks an opportunity to cross examine the party, that opportunity should be provided so that he can rebut the stand of that particular company. On facts, the assessee had not been able to show that the TPO had used information u/s.133(6).(A. Y. 2007-08)

 

Trilogy E-Business Software India v. DCIT (Bang.)(Trib.)www.iatonline.org

 

S.92C: Avoidance of tax- Transfer pricing-Arms’ length price-Application of cost plus method -Charter hire charges- No adjustment is called for.

 

Difference arose in calculation of cost due to the fact that TPO took the cost relating to charter hire activity as 50 percent of total cost whereas the assessee took the actual cost relating to the charter hire activity. Cost plus method can be applied only by taking the actual cost of the activity. Once the figures used in the calculation made by the TPO are replaced by actual figures, the payment made by the assessee is at ALP and, therefore, no adjustment is called for. (A.Y. 2002 – 2003)

 

Reliance Industries  Ltd v. Addl. CIT (2012) 79 DTR 315  (Mum) (Trib.)

S.92C: Avoidance of tax- Transfer pricing-Arms’ length price-Most appropriate method -C&F agent-Directed to adopt proper comparable.

 

Assessee purchases the spare parts to be sold to its AE only and for doing so, it earned 1 per cent of mark up on the value of the produces and the cost of importing the goods. Though the assessee is becoming the owner of the goods imported, but by virtue of the product replacement services agreement, he has no right to fix the resale price or to choose the customer to whom the products are to be sold. When the assessee cannot be held to be a trader or distributor of the spare parts, it is clear that the resale price method is not applicable for arriving at the ALP of the international transactions. TNMM method is the most appropriate method for computing the ALP relating to the international transactions of the assessee with its AE-Comparables chosen by TPO were not appropriate. Only comparable which can be accepted is IC and is to be accepted and the gross profit as pointed out by the counsel for the assessee should also be reconsidered by the TPO – Hence, issue is remitted back to the TPO/AO with a direction to recomputed the ALP by adopting the proper comparables. (A.Y. 2006 – 2007)

 

CISCO Systems (India) (P) Ltd. v. DCIT (2012) 78 DTR 498 (Bang.) (Trib.)

S.92C: Avoidance of tax- Transfer pricing-Arms’ length price- Selection of comparables.

 

Receipt of the assessee from its AE in the relevant year being Rs.213 crores, turnover filter of Rs.5 crores applied by the CIT(A) for selection of comparables is fair and justified as against the turnover filter of Rs.1 crore applied by the TPO, more so when the TPO himself has applied the turnover filter of Rs.5 crores in the earlier year. 

 

The TPO himself has noted that GIC Ltd cannot be considered as a comparable because of substantial related party transactions. To nullify the effect of related party transactions, he considered the consolidated accounts of GIC Ltd. However, in the case of ITES which is the main business of the assessee, 95 per cent of the GIC Ltd’s consolidated account is received from subsidiaries and only 5 per cent from GI India operations. The subsidiary of GIC Ltd. is in United States. Similarly, even in respect of Global Information Services segment, 60 per cent of the consolidated revenue is from subsidiaries and only 40 per cent from GIC Ltd in view of the above, the CIT(A) rightly held t hat GIC Ltd. cannot be considered as a comparable company for the purpose of determining ALP of ITES rendered by the assessee.          (A.Y. 2003 – 2004)

 

American Express (India) (P) Ltd. v. JCIT (2012) 79 DTR 127/150 TTJ 316 (Delhi)(Trib.)

 

S.92CA: Transfer pricing – Reference to TPO – Assessing Officer is not required to give opportunity of hearing.

 

Assessing Officer is not required to provide opportunity of hearing to assessee before referring matter to TPO (AY 2005-06)

 

I.J. Tools & Castings (P.) Ltd. v. ACIT  (2012) 139 ITD 414 (Asr)(Trib)

S.115JA: Company – Books profits –Limited powers of assessing officer – Prior period expenses – Deductible.

 

The assessee has computed the book profits after deducting the prior period expenses The Assessing Officer held that prior period expenses adjustments could not be reduced for arriving  the net profit of that particular years . On appeal to the High Court the Court held that,  the assessing authority has no jurisdiction to go further into the accounts hence .no exception could be taken to the course adopted by the assessee in adjusting the prior period expenses in computing the net profit. Accordingly following the ratio in Apollo Tyres vs. CIT (2002) 255 ITR 273 (SC), the appeal of the assessee was allowed. (A.Y. 1997-98)

 

Tamil Nadu Cements Corporation Ltd v. J CIT (2012) 349 ITR 58 (Mad)(High Court)

S.115JA: Company-Book profit- Loss by amalgamating company has to be taken in to consideration while computing book profits

 

Assessee acquired bulk drug division of SPCL. As per the scheme sanctioned by the High Court the date of transfer was 1st April, 1997, while the effective date of such acquisition was 19th June, 1997. Loss of SPCL for the aforesaid period has to be taken into consideration despite the fact that the assessee has not shown this loss in its P & L A/c prepared in accordance with the provisions of the Companies Act, 1956 and has reduced the same from the general reserve. (A.Y. 1997 – 1998)

 

Addl. CIT v. Nicholas Piramal India Ltd. (2012) 78 DTR 369/150 TTJ 1 (Mum)(Trib.)

 S.115JA: Company-Book profit- Amount transferred to debenture redemption reserve is to be reduced .(Companies Act ,1956 )

 

Amount transferred to the reserve account to meet the liability on account of redemption of debentures issued by the assessee is a provision made for an ascertained or known liability and, therefore, it is to be reduced from the profit as per P & L A/c prepared in accordance with the provisions of companies Act, 1956 to arrive at the book profit under sec. 115JA.       (A.Y. 1997 – 1998)

 

Addl. CIT v. Nicholas Piramal India Ltd. (2012) 78 DTR 369/150 TTJ 1(Mum)(Trib.)

S.115JB: Company-Book profit- Bad debts-Cannot be added while computing book profit.

 

Bad and doubtful debts can never be said to be liability and cannot be added up for computing the book profit u/s. 115JB.  (A.Y.1999 – 2000)

 

CIT v. Fusion Software Engg. (P) Ltd. (2012) 79 DTR 130(Karn)(High Court)

S.132: Income-tax authorities-Powers-  Search and seizure – Warrant of authorization – Law applicable – Effect of amendment of section 132(1) w.e.f. 1-6-1994 – Additional Director has power to issue authorization :

 

The Finance (No.2) Act, 2009 has inserted the words “Additional Director” in sec. 132(1) of the Act, with effect form June 1, 1994, besides other authorities. Therefore, the Additional Director has the power u/s. 132(1) to issue search and seizure warrant.

 

Held accordingly, allowing the appeals, that the search action on the basis of the authorization of the additional director was valid. Accordingly the search action on the basis of the authorization of the Additional Director was valid. 

 

CIT v. Trilochan Pratap Singh & Ors (2012) 349 ITR 314 (All)(High Court)

 

CIT v. Suhail Ahmad (2012) 349 ITR 314 (All)(High Court)

 

CIT v.Praveen Suhail (2012) 349 ITR 314 (All)(High Court)

 

CIT v. Azad Education Society (2012) 349 ITR 314 (All)(High Court)

S.132: Income–tax Authorities-Search and seizure-Powers- Authorisation  – Reason to believe.

 

Income tax department  based on the records of the year 2002 and the report of the Addl. Director after visiting the clinic in 2005 on four occasions alongwith decoy patients, and having examined the IT returns and balance sheets in which negligible income was returned, authorized the search, there was no illegality in recording the satisfaction note by the competent authorities based on relevant and credible evidence collected by the Dept. Accordingly the writ petition filed by the  Assessee was dismissed.

 

Dr. Roop & Ors v. CIT (2012) 254 CTR 14/79 DTR 56 (All)(High Court)

S.132(4A): Income-tax authorities-Powers- Search and seizure – Presumption as to correctness of seized documents  must be given full effect-Expenditure shown in the documents  must be allowed. (S. 37(1), 68)

 

The assessee’s business was to charter and operate flight for transportation of goods. Consequent to a search, block assessment was made against the assessee in which, on the basis of the documents seized, certain sums were added u/s. 68 of the I.T. Act, 1961.Held, dismissing the appeals, (i) that if the revenue was of the opinion that the expenses claimed towards green boxes was inadmissible or was excessive, or not genuine, in order to reject the entries in the books of account and other documents of the assessee seized during the search, it ought to have relied on other materials. Having once drawn the presumption that the contents of the documents of the assessee taken into possession during the search were true, the revenue could not, consistently with that presumption, have proceeded to require the assessee to produce materials in support of the expenditure entries. Such an inconsistent approach in respect of the contents of the same book was founded only on suspicion that they were not genuine. However, suspicion cannot replace proof. Moreover, the full effect of the presumption should be given effect, whenever the statute directs a particular nonexistent state of affairs to be assumed. Therefore, in the absence of any materials in the form of documents, the revenue could not have denied the benefit of any expenses which would otherwise have ensured to the assessee, as an allowable deduction u/s. 37(1).

 

(ii) That in so far as the heads of expenses were concerned, the revenue was unable to show how any of them were prohibited by law or amounted to offences.(Block period 1-4-1998 to 20-8-1998 )

 

CIT v. Indeo Airways P Ltd(2012) 349 ITR 85/79 DTR 289 (Delhi)(High Court)

S.139: Assessment- Revised Return –Revised return cannot be filed where original return was not filed in time, however additional claim could be made before  appellate authority. (S.32)

 

Revised return cannot be filed where original return was not filed in time. The Tribunal l held that an additional claim could be made before appellate authority  and he is duty –bound  to consider the same . Accordingly the depreciation allowance under  explanation  5 of section 32 is held to be allowable . (AY 2007-08)

 

Rakesh Singh v. ACIT (2012) 139 ITD 128 (Bang)(Trib.)

S.139: Assessment- Return- Newly established undertaking- For claiming deduction under section 10A,  filing of return under section 139(1) is mandatory. (S. 10A (IA), 234A )

 

The special bench was constituted to decide the  following question , “Whether the proviso to section 10A(IA)  of the Income-tax Act  which says that no deduction under section 10A shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under section 139(1) is mandatory or merely directory ?”. The Tribunal held that provisions of section 10A(IA)  are mandatory and not directory ; deduction under section 10A  cannot be allowed to an assessee who does not furnish return on or before due date specified under  sub section (1) of section 139. The charging of interest is held to be mandatory .When one of the consequences for not filing  return  of income within due date prescribed under section 139(1) is mandatory then other consequences cannot be held to be directory and the same is also mandatory.(A.Y. 2006-07)

 

Saffire Garments v.ITO ( 2013) 151  TTJ 114 (SB) (Rajkot)(Trib.)

S.142A: Assessment-Estimate by valuation Officer- Addition –Matter was set aside.(S.55A, 69B )

 

In view of insertion of s. 142A by Finance (No.2) Act, 2004, w.e.f. 15th Nov. 1972, AO has power to refer the matter to DVO for the purpose of determination of valuation of property, AO having proceeded to assess the cost of construction of a building on the basis of the cost estimated by the DVO without considering  the valid objection raised by the assessee, matter is remanded to the assessing authority to reconsider the same and pass assessment order afresh after necessary clarification from DVO. (A.Ys. 1998 – 1999 & 1999 – 2000)

 

 CIT v. M. Nagaraja (2012) 79 DTR  381 (Karn.)(High Court)

 

S.143(1)(a): Assessment- Intimation on basis of return –Details of payment- No power to disallow claim for lack of proof of claim – When proof is required notice for production of evidence in support of return to be issued.(S.43B)

 

The Assessing Officer u/s. 143(1)(a) of the  Act, in the assessee’s return of income for the asst. year 1989-90, made three adjustments in respect of  scientific research expenses of Rs.82,310, club payments Rs.2,577 and under sec. 43B Rs.16,69,470, totaling Rs.17,54,357. On a writ petition challenging  the three adjustments:

 

Held, allowing the petition, that with regard to the first two adjustments, these were not prima facie adjustments which could have been made by the A.O. in exercise of his power u/s. 143(1)(a) of the Act. No power was given to the I.T. Officer to disallow a claim for the reason that there was no proof in support of the claim made by the assessee.  Only where it was evident from the return as filed, alongwith the documents in support thereof, that a claim of the assessee was inadmissible, can an adjustment under the proviso be made. If proof in support of the claim was not furnished by an assessee, then for the lack of proof, no disallowance or an adjustment could be made. The only option which was open to the I.T. Officer, in such a case, was to require the assessee to furnish proof in which case he would have to issue notice u/s. 143(2). Adjustment could be made only if there was information available in such return that prima facie a claim or allowance was inadmissible.  With regard third adjustment the assessee had given details of payments made to PF and also the sales tax does in form of chart, therefore addition not justified. Assessee has shown details of payment  made till date of filing of return  in the form of chart hence disallowance under section 43B  cannot be made.(A.Y. 1989-90)

Easter Industries Ltd v. UOI (2012) 349 ITR 324 (Delhi)(High Court)

S.143(1)(a): Assessment- Intimation- Adjustment-Assessing Officer cannot disallow claim and make addition for lack of evidence – Intimation to be set aside.

 

On a writ petition by the assessee, a public sector undertaking, for quashing of intimation u/s. 143(1)(a) of the Act, and also for quashing the consequential orders. It was held, that if the AO wanted to disallow any expenditure for want of proof, he should have issued notice and called for the evidence for deciding the question. The A.O. could not have made the addition for want of documents. The adjustments made were not covered by the scope of Sec. 143(1)(a).

 

Indian Drugs and Pharmaceuticals Ltd v. UOI(2012) 349 ITR 32 (Dehil)(High Court)

 

S.143(1)(a): Assessment – Prima facie adjustment-Intimation  – Addition related to debatable issues and documents not required to be filed with return .

 

For the asst. year 1989-90, the assessee filed a return claiming loss of Rs.99,99,575/-. In the adjustment explanatory sheet enclosed with the intimation u/s. 143(1)(a) of the  Act, the Assessing Officer made some adjustments disallowing deductions of cash payments, charity and donations, entertainment expenditure, depreciation, entry tax,  welfare cess, employers contribution to provident fund and interest paid to public financial institutions, and created a demand of additional tax.  On a writ petition.

 

Held, (i) that as far as disallowance of cash payments, charity and donation, entertainment expenditure and depreciation was concerned, the adjustments were impermissible and not mandated under clause (iii) of sec. 143(1)(a) of the Act. These additions related to debatable issues or aspects which required examination of explanation or production of documents which were not required to be filed with the return.

 

That in respect of entry tax, welfare cess, employers contribution to provident fund and interest paid to public financial institutions, there was failure on the part of the assessee to file the requisite documents as required under sec. 43B.

 

The AO had acted on the basis of the tax audit report and the documents which were enclosed with the return to make the disallowance in accordance with law. Therefore, the adjustment made by the AO was appropriate and in accordance with the then applicable existing provisions.(A.Y.1989-90)

 

Abhishek Cement Ltd. v. UOI (2012) 349 ITR 1 (Delhi)(High Court)

S.143(2): Assessment – Notice – Block assessment –Notice was not issued under section 143(2)-Assessment annulled. (S.158BC, 292BB )

 

Once it is admitted that the AO has repudiated the return filed by the assessee under s. 158BC the entire proceedings in the absence of notice u/s. 143(2) subsequent thereto suffer from lack of jurisdiction. When the notice under s. 143(2) was not issued, question of service, or improper service is not relevant. Therefore,   section  292BB is not attracted. The Assessment was annulled .The appeal of assessee was allowed.

 

Nawal Kishore & Sons Jewellers v. CIT (2012) 79 DTR 241  (All.)(High Court)

 

S.143(2): Assessment – Notice – Block assessment-Notice is mandatory. (S.158BC, 158BD, 292BB) 

 

Notice u/s. 143(2) is necessary, where for any reason the AO repudiates the return field by the assessee in response to the notice u/s. 158BC(a) relating to the block assessment sec. 292BB is a rule of evidence, and not a rule which dispenses with the requirement of giving notice under the Act. In the absence of notice u/s. 143(2) assessment under s. 158BD/158BC was not sustainable.

 

CIT v. Parikalpana Estate Development (P) Ltd. (2012) 79 DTR 246 (All) (High Court)

S.143(3): Assessment-Income from undisclosed income – No evidence of excess consumption of fuel – Additions to income could not be made. 

 

The assessee was engaged in the business of running a solvent extraction plant and sale of rice bran oil and mustard oil, etc.  The A.O. made additions to the income of the assessee. Rs.17,18,494/- on account of excess fuel consumption. The Tribunal deleted the additions. On appeal to the High Court. Held that there could not be any addition until and unless it is proved that there had been excess consumption of fuel which was not recorded in the books of account. The AO had taken the figure from the auditors report and at the same time he had taken the figure from the profit and loss account without considering the quantity mentioned in the purchase vouchers. Moreover, the AO had made the addition on estimate basis which was merely a question of fact. Appeal of revenue was dismissed.(A.Y.2003-04)

 

CIT v. Raghuraji Agro Inds. P. Ltd (2012) 349 ITR 260 (All)(High Court)

 

S.145:Assessment- Method of accounting-Valuation of stock- Excise duty-Excise duty to be excluded from  value of closing stock of finished goods at the end of accounting period, when assessee is following net method  for valuing closing stock.

 

The assessee company has been following the net method for valuing closing stock . It includes excise duty at the time of removal of goods .  The auditors have out the remark in the notes as under “ As per the practice consistently  followed , excise duty payable estimated at Rs 1,43,66 145 on finished goods held in factory are neither included in expenditure nor valued in such stocks but are accounted for on clearance of  goods from factory . The accounting treatment however has no impact on the profit for the year.  Following the order of supreme court in CIT v. Indo Nippon Chemicals Ltd (2003) 261 ITR 275 (SC), the civil appeals of department was dismissed.(A.Y. 1995-06 , 1997-98)

 

CIT v. Sri Ram Honda Power Equipment Ltd ( 2012) 210 Taxman 577 (SC)

 

S.145: Assessment- Method of accounting-Valuation of stock- Excise duty-Excise duty to be excluded from  value of closing stock of finished goods at the end of accounting period, when assessee is following net method  for valuing closing stock.

 

The assessee company has been following the net method for valuing closing stock . It includes excise duty at the time of removal of goods . Following the order of supreme court in CIT v. Shri Ram Honda Power equipment Ltd ( 2012) 210 Taxman  577 (SC) , civil appeal filed by the department was dismissed.(A.Y. 1995-96)

 

ACIT v. Torrent Cables Ltd ( 2012) 210 Taxman 579 (SC)

S.145: Assessment-Method of accounting-Estimation of income- Higher income on TDS certificates – Addition was held to be justified.(S.144)

 

The Assessing Officer found that the tax deducted at source (TDS) certificates attached to the return of income showed   receipt of higher amount as compared to the books. The assessee failed to explain the difference .The Assessing Officer rejected the books of  account and assesses the income under section 144 . The addition was confirmed by Commissioner (Appeals) and Tribunal. On appeal the High Court up held the order of Tribunal by observing that the documents alleged to have been produced before the Tribunal during the course of hearing , were in fact not produced. This being finding of fact , no interference was called for.(A.Y.1998-99)

 

Laxmi Ventures (Bombay) (P) Ltd v. Dy.CIT ( 2012) 210 Taxman 560 (Bom.)(High Court)

S.145: Assessment-Method of accounting-Valuation of stock – valuation to be at cost price or market price whichever is lower – Reimbursement payments not includible in net realizable value.

 

The assessee was engaged in the business of export of sugar. It did not manufacture sugar but procured or purchased sugar from manufacturers. It did not engage itself in domestic sales (except sale of damaged stock).For the asst. year 1993-94, the AO examined the valuation of closing stock and made in addition holding, inter alia, that the assessee in the past years had been regularly following the cost method for valuing the closing stock. Similar additions were made for the asst. years 1995-96 to 1998-99 and 2001-02 to 2004-05. The Commissioner (Appeals) confirmed the additions. The Tribunal deleted the additions. The Assessing Officer made another addition of Rs.71.80 lakhs on the ground that the assessee had wrongly not included reimbursements that had not been paid under the head `export loss reimbursement’.  The Commissioner (Appeals) deleted the addition and this was confirmed by the Tribunal. Held, dismissing the appeals, (i) that the Revenue had not been able to demonstrate that in the earlier assessment years, the assessee had valued the closing stock at cost and not on the net realizable value basis. The Tribunal was right in holding that there was no change in the method of valuation of closing stock during the asst. year 1993-94.

 

(ii)           That the assessee was entitled to value the closing stock at cost price or market price, whichever was lower.

 

(iii)          That there was no statutory or contractual obligation under which the assessee could have claimed reimbursement of export losses from the manufacturers from whom it had procured sugar for export. Hence, the Tribunal was right in accepting the net realizable value as declared by the assessee and was right in not adopting the cost price for computation of the closing stock.(A.Y. 1993-94, 1995-96 to 1998-99 , 2001-02 to 2004-05)

 

CIT v. Indian Sugar and Gen. Industry Export Import(2012) 349 ITR 38 (Delhi) (High Court)

S.145: Assessment- Method of accounting-Rejection – Yield of oil and oil cakes-Additions partly sustained. 

 

Although the quantity of cotton see, mustard and ground nut crushed during the previous year was shown separately but the yield of oil and oil cakes has been given in consolidated form. Further, the sales of oil and oil cakes have been shown in the manufacturing account in consolidated form although there was a wide variation in the market price of these products. Discrepancies pointed out by the AO while rejecting the book results have not been satisfactorily explained by the assessee. Addition partly sustained. (A.Y. 2008 – 2009)

 

Pawan Kumar v. ITO (2012) 79 DTR  17(Chd.)(Trib.)

S.147: Reassessment- Setting aside of assessment- Reasoned order.

 

High court has set aside the order, reassessment order. On appeal to Supreme court the Supreme court set aside the order of  High Court and remitted the matter to the High Court foe de novo consideration in accordance with law.

 

Pavez  Nazir Hussein Jafri v. CIT (2012) 210 Taxman 581(SC)

 

Editorial.-Order of Bombay High Court in WP No.1807   of 2011 d ated 23-12-2011 is  set aside.   

S.147: Reassessment–Valuation of assets-Reference to valuation officer- – Proviso to sec. 132A – Retrospective – Assessment includes reassessment – However proviso saves reassessment proceed u/s. 153A only-Reference to valuation officer was held to be invalid.(S.132A, 142A, 153A )

 

Reassessment for the years 1989-90 to 1992-93 were completed in the case of the assessee before Sept. 30, 2004. The A.O. had appointed the valuation Officer for valuing assets and based on that, made certain additions in the income of the assessee.

 

It was held that though assessment includes reassessment, none the less it is only the reassessment proceedings u/s. 153A that are saved and no other proceedings of reassessment. Sec. 142A of the Act, though retrospective would not apply to the facts of these cases. The deletion of additions was justified. Section 142A of the I.T. Act, 1961, inserted by the Finance (No.2) Act, 2004, with effect from November 15, 1972, provides for estimate by the Valuation Officer in certain cases. The proviso thereto applies in respect of an assessment made on or before the 30th day of sept. 2004, and where such assessment has become final and conclusive on or before that date, except in cases where a reassessment is required to be made in accordance with the provisions of sec. 153A.(A.Ys. 1989-90 to 1992-93)

 

ACIT v. M.I Builders P. Ltd.(2012) 349 ITR 276 (All)(High Court)

S.147: Reassessment-Reason to believe – Change of opinion-Within four years-Held to be not valid.

 

It was only after detailed scrutiny that the AO framed original assessment making no additions to the income disclosed by the assessee. AO examined the claim thoroughly before passing the assessment order. Such scrutiny assessment cannot be reopened even within four years from the end of relevant assessment year on the reasons recorded by the AO. There was merely a change of opinion for which reopening was not sustainable. (A.Y. 2007 – 2008)

 

Ashwamegh Co-op. Housing Society Ltd. v. Dy. CIT (2012) 79 DTR 449/254 CTR 362 (Guj)(High Court)

 

S.147: Reassessment-Full and true disclosure – Change of opinion-There was no mentioning of lack of information –Reassessment was quashed. 

 

It is evident from the roznama, the requisitions by the TPO and the AO and the petitioner’s response thereto in the assessment proceedings for the year 2004-05 that the material had been furnished by the petitioner and considered by the AO and the TPO .There is not a whisper as to the nature of the inadequate disclosure. AO nowhere specifies even the nature of the information that was not furnished in the earlier proceedings –  There is no mention of the disclosure of the nature of payments in the assessment proceedings for asst. Year 2007-08 which were absent in the proceedings for the relevant asst. Year 2004-05 basis of the notice was thus infounded on facts nor does he state that the absence of this unspecified lack of disclosure was not noticed by the A.O. There was thus merely a change of opinion and therefore impugned notice dated 28th March, 2011 and the impugned order dated 27th March, 2012 are quashed and set aside. (A.Y. 2004 – 2005)

 

Rabo India Finance Ltd. v. Dy. CIT(2012) 79 DTR 316/211 Taxman 423 (Bom.)(High Court)

S.147: Reassessment- Time limit for notice-Full and true disclosure -Excessive relief-Export-No disclaimer certificate was filed –Reassessment was held to be valid. (S.80HHC ).

 

As per cl. (c)(iii) of Expln 2 to s. 147, any excessive relief made under the Act is a fact liable to be considered for reopening the assessment – Admittedly, petitioner did not file `disclaimer certificate’ which is a mandatory requirement while claiming deduction under s. 80HHC. Authority concerned proceeded with and finalised the matter as if it were assessee’s own export On the other hand, the party to whom the petitioner supplied goods has been also allowed deduction u/s. 80HHC. As such, there cannot be any `double benefit’ under this head. Since the petitioner did not comply with the statutory requirement, it cannot be said that there was a full and true disclosure on the part of the petitioner. Though the mistake of granting deduction in the absence of disclaimer certificate is partly attributable to the AO, reopening of assessment to correct the same is valid.  (A.Y. 1989-90)

 

Veeteejay Exports (P) Ltd v. Dy. CIT (2012) 79 DTR  110(Ker)(High Court)

S.147: Reassessment- Assessment under section 143(1)-New material- Assessment under section 143(1),  cannot be reopened u/s 147 in absence of “new material”.(S.143(1),148 )

 

      The assessee filed a ROI in which it claimed exemption under Article 8 of the DTAA (“airline profits”) even in respect of interest earned on fixed deposits. The AO accepted the ROI u/s 143(1). Subsequently, he issued a notice u/s 148 seeking to make a reassessment and bring the interest to tax. The assessee claimed that as there was no new material that had come to the possession of the AO, the reassessment proceedings were not valid. The AO & CIT(A) relied on CIT v. Rajesh Jhaveri Stock Brokers P. Ltd.(2007) 291 ITR 500 (SC) and rejected the claim. On appeal by the assessee to the Tribunal, held  allowing the appeal:

 

The assessee had made a clear disclosure in the ROI that it was claiming exemption under Article 11 for the interest income. This was accepted u/s 143(1). The assessment was sought to be reopened without there being any new material on record. In Telco Dadajee Dhackjee it was held by the Third Member that even in a case where only an intimation had been issued u/s 143(1)(a), it is essential that the AO should have before him tangible material justifying his reason to believe that income had escaped assessment. In the absence of such tangible material, the reassessment proceedings are invalid. Though in Praful Chunilal Patel (1999) 236 ITR 832 (Guj),, it was held that there is no necessity for the AO to have fresh facts coming to his notice subsequent to the original assessment to justify the reopening this view has not been subscribed to by the Full Bench in CIT v. Kelvinator of India Ltd. (2002) 256 ITR 1 (Del) which has been affirmed by the Supreme Court {CIT v. Kelvinator of India Ltd. (2010) 320 ITR 561(SC)}. (A. Y. 2001-02)

 

Delta Air Lines Inc v. ITO (Mum)(Trib.) www.itatonline.org.

S.147: Reassessment – Reason to believe – Not valid when AO initiated only for wants to examine or verify particulars of return with a view to ensure that assessee has not understated its income

 

Proceedings for reassessment can be initiated only when Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment and not where he simply wants to examine or verify particulars of return with a view to ensure that assessee has not understated its income. When initiation of reassessment proceeding is sustainable on any of several reasons recorded by Assessing Officer, same shall be valid. (A.Y. 1996-97)

 

Dy.DIT (IT) v. Societe International De Telecommunication (2012) 139 ITD 328 (Mum)(Trib.)

S.148:Reassessment- Notice-Issue subject matter of order of settlement commission-Reassessment  was quashed .(S. 80 IB (10), 245-I )

 

Order of settlement is conclusive as expressly stated in s. 245-I contention that it is conclusive only with regard to matters stated in the order of settlement and in respect of mattes not stated therein, the AO has the power to reopen the assessment is not sustainable. Moment the application of the assessee was allowed to be proceeded with by the ITSC till the final order of the settlement was passed on 17th March, 2008, it was the ITSC which had exclusive jurisdiction in relation to the assessee’s case. Therefore, all matters which could be  examined by the AO could be examined by the ITSC in these proceedings, including the assessee’s claim for deduction u/s. 80IB(10). If the contention of the Revenue is accepted, not only will the finality of the order of settlement be disturbed, but it will also result in different orders relating to the same assessment yar and relating to the same assessee being allowed to stand. Such a result, which is likely to create chaos and confusion in the tax administration could not have been intended. Order of the ITSC can be reopened only in cases of fraud and misrepresentation and in no other case. Moreover, it is difficult to say that the deduction under s. 80-IB(10) was not a matter covered by the order of the ITSC-AO had no jurisdiction to reopen the assessment for the asst. Year 2006-07 by issuing a notice u/s. 148 on the ground that the deduction u/s. 80IB(10) was wrongly allowed.  (A.Y. 2006 – 2007)

 

Omaxe Ltd v. ACIT (2012) 79 DTR 83/254 CTR 370 (Delhi)(High Court)

 

S.148: Reassessment-Notice –Transfer of case – Territorial jurisdiction of Assessing Officer-Transfer case before issue of notice , notice was held to be invalid.(S.120,127 ) 

 

The Asst. Commissioner had no jurisdiction over the assessee on the date of issuance of notice on March 29, 2004, as the jurisdiction over the assessee was transferred to the Additional Commissioner, Lucknow, by order dated August 1, 2001, passed u/s. 120 of the I. T. Act. 1961, by the Chief Commissioner, Lucknow. The Tribunal had rightly held that the issuance of notice u/s 148(1) of the Act by the Asst. Commissioner, Lucknow, was without jurisdiction. Appeal of revenue was dismissed. (A.Y.1997-98) 

 

CIT v. M.I. Builders P. Ltd(2012) 349 ITR 271 (All.)(High Court)

S.148: Reassessment – Notice – Validity Non Resident – deduction of tax at source – Certificate u/s. 197(1) issued No return filed – Held notice valid.(S.195,197 )

 

The petitioner was awarded four contracts encompassing onshore supply, onshore services and offshore supply, by PGCIL. PGCIL moved an application u/s. 195 of the Act. with regard to the payments to the petitioner. Orders were passed only in respect of the payments made to the petitioner on the offshore contract and onshore services contract at 10 per cent on gross basis in respect of the payment made for training charges and 10 per cent on gross basis in respect of the payment made for maintenance and service charges respectively and on other payments, deduction was to be made at nil rate. The Revenue had been issuing certificates u/s. 197(1) for tax deduction at source. The petitioner received notice dated May 19, 2008, issued u/s. 148 of the Act alleging that the income of the petitioner for the asst. year 2005-06 had escaped assessment. On writ petitions to quash the notice it was held, that no return had been filed. It was clear from the order that the order was interim in nature and in fact, the order could not have been anything else but interim in character as the scope of section 197 is limited. Explanation 2(a) to section 147 clearly takes care of the situation where no return has been filed. On a conjoint reading of sections 195 and 197 it  is clear that if any opinion is expressed at the time of grant of certificate it is tentative or provisional or interim in nature and the order would not  bar the AO from initiating a proceeding under sec. 147. The notices were valid.(A.Y.2005-06)

 

Areva T & D, SA v. Asst DIT (2012) 349 ITR 127 (Delhi)(High Court)

S.153:Assessment-Reassessment-Time limit-Applicability of S. 153(2A) –Assessment abated  -Assessee is entitled to refund of tax paid  by it.(S. 153(3),250 , 254 )

 

Class of cases of fresh assessment to be made pursuant to order u/s. 250 etc. Would fall under sub-s (2A) of s. 153, and the period of limitation prescribed therein would operate. In those cases where there is no need for a fresh assessment and which are not covered under sub-s (2A) of s. 153, but are covered under cl. (i), (ii) and (iii) of s. 153(3), the limitation prescribed under sub s (2A) of s. 153 would not apply. In the present case, Tribunal may not have used the words “setting aside the assessment”, nevertheless, when it remitted the matter back to the AO for summoning two witnesses again for cross examination by the assessee and permitted further probe to the AO,  necessary it must be understood to have set aside the assessment under challenge. In essence, thus, the AO was required to pass a fresh order of assessment which was necessary on account of an order passed by the Tribunal under s. 254 cancelling the assessment framed by the AO. Period of limitation prescribed in s. 153(2A), therefore, would apply and not s. 153(3). Assessment proceedings for the asst. Year 1988-89 are declared to have abated as having become time barred. Assessee entitled to refund of tax except self assessed tax paid by it. (A.Y. 1988 – 1989)

 

Instruments & Control Company v. Chief CIT. (2012) 79 DTR 465 (Guj) (High Court)

S.153: Assessment-Limitation-Delivery date to post office is relevant- Dispatch of assessment order after limitation period renders it void.(S143 )

 

      For AY 2006-07, the last date for passing the s. 143(3) assessment order was 31.12.2008. The AO passed an order dated 31.12.2008 which was served on the assessee on 16.02.2009 vide registered post. The assessee claimed that the envelope by which the order was dispatched showed that the assessment order was delivered to the post office on 12.2.2009 and that the assessment order was “passed” after the limitation period and was void. The CIT (A) rejected the claim. On appeal by the assessee to the Tribunal, held allowing the appeal: 

 

S. 153 provides that no assessment order shall be “made” u/s 143 after the expiry of two years from the end of the assessment year. There is no requirement that service must be effected before the expiry date. However, an order can be considered to have been made/ passed only when it leaves the control of the authority concerned. The mere signing of an order on the last date of limitation does not mean that it has been made/ passed if it is not handed over to the person who is authorized to serve it. In order to make the assessment order complete and effective, it should be issued so as to be beyond the control of the authority concerned for any possible change or modification and this should be done within the limitation period though actual service of the assessment order may be beyond that period. When an assessment order has been purported to have been passed within the prescribed period of limitation but the same is served on the assessee after unreasonable delay without being an explanation coming forward for such delay, in the absence of any explanation whatsoever it can safely be presumed that the order was not made on the date on which it purports to have been made and on the basis of such presumption it can be held that the order was passed after the expiry of limitation. On facts, the Department could not produce any evidence to prove that the assessment order was ready and dispatched on 31.12.2008. Thus, the assessee’s contention that the assessment order was not passed on 31.12.2008 has to be accepted and it has to be held that the order was barred by limitation (Kanu Bhai M. Patel (HUF) vs Hiren Bhatt or His sussessors to office & Ors. (2011) 334 ITR 25 (Guj) & other judgements followed) (A. Y. 2006-07)

Subrata Roy v. ITO ( Kolkata)(Trib)www.itatonline.org

S.153A: Assessment- Search or requisition- Presumption – Since total undisclosed income was offered by assessee as per seized documents no separate addition was made in respect of cash found. (S. 69,292C.)

 

Seized documents RM-1 and RM-2 were found in the possession and control of the assessee during the course of search in his case, a presumption u/s. 292C has to be drawn that the said documents belonged to the assessee and the contents thereof were true unless disproved by cogent evidence. Department having claimed that the contents of RM-1 and RM-2 were incorrect, the onus was on the Department to bring on record some acceptable evidence to prove that what was stated in the seized documents did not depict the actual state of affairs. In view of the provisions of s. 292C, the contents of seized material are to be presumed to be true unless rebutted by the party claiming contrary; AO and the CIT(A) having failed to discharge such onus by bringing on record some  cogent evidence to disprove the notings on the seized papers, the notings on the seized documents clearly depicting purchase and sale of gold, diamonds and painting and investment of sale proceeds in property and shares have to be accepted as such and, therefore, additions towards undisclosed income/unexplained investment could not be made by disregarding such notings. (A.Ys. 2003 – 04 to 2008 – 09)

 

Vivek Kumar Kathotia v. Dy. CIT (2012) 79 DTR 81/150 TTJ 462(Kol) (Trib.)

S.153C: Assessment- Income of any other person- Search and seizue-Recording of satisfaction- Search assessment is void if Assessing Officer’s satisfaction  is not recorded.(S.132,158BD )

 

Search & seizure operations u/s 132 were conducted at the premises of P.C. Wadhwa. Pursuant thereto, a notice u/s 153C was issued on the assessee requiring it to file its return. The assessee asked the Assessing Officer  for a copy of the reasons which resulted in satisfaction for issue of the s. 153C notice. The said reasons were not furnished by the Assessing Officer on the ground that there was no requirement in the Act which required such reasons to be furnished. The CIT(A) struck down the s. 153C assessment on the ground that the Assessing Officer  had not recorded any satisfaction before issue of the notice. On appeal by the department to the Tribunal, held,  dismissing the appeal:

S. 153C is analogous to s. 158BD. In the context of s. 158BD, the Supreme Court held in Manish Maheshwari v. ACIT (2007) 289 ITR 341(SC) that the recording of satisfaction by the Assessing Officer  that undisclosed income belongs to any person, other than the person who was searched, is a condition precedent. This principle applies to s. 153C as well. The burden is on the Revenue to show that the necessary ingredients of s. 153C have been complied with. On facts, there is material to show the Assessing  Officer  in the case of the person searched was satisfied that any money, bullion, jewellery or other valuable articles or things or books accounts or documents seized or requisitioned belongs to someone else. There is nothing to show that such satisfaction was recorded by the Assessing Officer . Even in the assessment order, no seized document or material has been referred to by the Assessing Officer. Consequently, the conditions of s. 153C are not satisfied and the assessment order had to be quashed (Vijaybhai N. Chandrani v. ACIT (2011) 333 ITR 436 (Guj) and other judgements followed).(A. Y. 2003-04 to 2008-09)

 

ACIT v. Global Estate (Agra)(Trib.)www.itatonline.org)

S.153C: Assessment- Income of any other person-Search and seizure-Recording of satisfaction-Search assessment is void if AO’s satisfaction not recorded.(S.132,153A, 158BD)

 

A search & seizure action u/s 132(1) was carried out in the case of Ingram Micro India Pvt. Ltd. As certain documents were found which allegedly showed that the assessee (a Singapore company) was not paying tax in India though it had a PE, an assessment u/s 153C was made to bring such profits to tax. The assessee challenged the s. 153C assessment on the ground that the AO who had conducted the search had not recorded satisfaction that any income belonged to the assessee. Held by the Tribunal:

U/s 153A & 153C, proceedings can be initiated only after the AO comes to the satisfaction that the seized material pertains to a person other than the searched party and comes to the conclusion that proceedings are required to be initiated in the other party’s case. In Manish Maheshwari vs ACIT (2007) 289 ITR 341 (SC), it was held in the context of s. 158 BD that the recording of satisfaction by the AO that any undisclosed income belongs to any person, other than the person searched, is a “condition precedent” and that a notice issued without recording satisfaction and application of mind was a nullity. This principle has been applied to s. 153C in SSP Aviation Ltd. vs DCIT (2012)  207 Taxman 260 (Delhi) & P. Satyanarayana (ITAT Chennai). On facts, as the Department was not able to produce any material to show that the AO assessing the searched party had reached the satisfaction that any income belonged to the assessee, the assessment had to be annulled. (A. Y. 2002-03 to 2007-08)

 

Ingram Micro (India) Exports Pvt. Ltd v. DDIT ( Mum.)(Trib.)www.itatonline.org

S.154:Assessment- Rectification of mistakes – Industrial undertaking – Assessment allowing deduction on profits before setting off carried forward losses – Rectification to restrict deduction– Matters debatable at the time – Rectification is not permissible. [S. 80IA,143(1)(a)].

 

The assessee’s return was processed u/s. 143(1)(a) of the Act,  allowing deduction u/s. 80-IA before setting off carried forward losses. The A.O. in proceedings u/s. 154 of the Act restricted the deduction u/s. 80IA to the profits after setting off losses of earlier years, rejecting the assessee’s objections based on CIT vs. K.N. Oil Inds. (1997) 226 ITR 547 (MP). The Commissioner (Appeals) dismissed the assessee’s  appeal following CIT vs. Kotagiri Inds. Co-op. Tea Factory Ltd. (1997) 224 ITR 604 (SC) and this was affirmed by the Tribunal and the High Court. On further appeal, the  court  held, that the provisions of chapter VI-A particularly those dealing with quantification of deductions, having been amended several times and even after the date of the decision relied on by the Tribunal, one could not say that this was a case of a patent mistake. Accordingly the order of High Court was set aside. (A.Y.1997-98)

Dinosaur Steels Ltd. v. Jt. CIT (2012) 349 ITR 360/80 DTR 217/254 CTR 640 (SC)

Editorial: Decision of madras High Court  in Dinosaur Ltd  v. JCIT (2007) 288 ITR 476 (Mad)(High Court) set aside.

S.154: Assessment- Rectification of mistake Jurisdictional High Court-Judgment of jurisdictional High Court not considered – Held mistake apparent from   record.

 

A situation in which judgment of jurisdictional High Court is not considered, such a non-consideration is clearly a mistake apparent from record. (AY 2004-05)

 

Uttara Ghosh(Smt) v. Dy.CIT (2012) 139 ITD 88 (Kol.)(Trib.)

S.158BB: Block assessment- Computation-Undisclosed income-Sworn statement during search-Addition which was confirmed by High Court was set-aside. (S.69C,132(4),158BA,158BC )

 

High Court has overruled the decisions of the CIT(A) and the Tribunal even on factual aspects of the explanation/evidence submitted by the assessee vis-a-vis undisclosed income discovered during the search. It ought to have remitted the case to the CIT(A) for giving opportunity to the assessee to produce relevant supporting documents. Therefore, impugned judgment of the High Court is set aside  and the case is remitted to the CIT(A) to decide the matter uninfluenced by the judgment of the High Court.  (Block Period 1st April, 1990 to 13th March, 2001)

 

M.K. Shanmugam v. CIT (2012) 79 DTR 286(SC)

 

Editorial: Judgment of  High Court in CIT v. M.K. Shanmugam (2012) 79 DTR 269 (Mad) reversed.

 

S.158BB: Block assessment- Computation-Undisclosed income-Sworn statement during search-Addition was held to be justified. (S.69C,132(4),158BA,158BC )

 

Assessee himself in his sworn statement made during search having admitted that he had received a sum of Rs.42 lacs by way of `on money’ for sale of property earlier purchased in joint names of himself and his wife and having offered the same for taxation in his hands as undisclosed income, AO had not committed any error in making the addition of Rs.42 lakhs while completing the block assessment. Contention of assessee that 50 per cent of the amount belonged to his wife liable to be assessed in her hand cannot be accepted in view of the finding of AO that assessee was regular defaulter in filing returns and had treated income returned in invalid returns filed beyond time for various assessment years as undisclosed income of assessee.

 

For asst. Years 1991-92, 1992-93 and 1996-97 assessee filed invalid return beyond time and did not submit supporting documents alongwith cash flow statement in order to explain investments. AO also found that the assessee did not maintain proper books of account from financial year 1998-98 till date of search. This position was admitted by assessee himself in his sworn statement. Assessee had not produced any material to show that the remaining credits were outstanding as on 31st March, 1998 and the assessee also did not furnish the name and address of the creditors. Further, as per s. 158BA block assessment is in addition to regular assessment for each previous year falling in the block period. Therefore, the CIT(A) and the Tribunal were not justified in deleting addition made by AO under s. 69C for asst. Year 1998-99 in the block assessment. Appeal of department was allowed. (Block Period 1st April, 1990 to 13th March, 2001)

 

CIT v. M.K. Shanmugam (2012) 79 DTR 269 (Mad) (High Court)

 

Editorial. Supreme court set aside the order of High Court and remitted the matter to Commissioner (Appeals) to decide on merit.M.K.Shanmuguam v.CIT ( 2012) 79 DTR 286(SC)

S.158BB: Block assessment- Computation-Undisclosed income –Presumption of documents- Documents  is  to be read as whole if income is assessed , the expenditure also to be allowed unless it is prohibited by law or amounted to offences. [S.37(1),132(4A)]

 

Having once drawn the presumption that the contents of the documents (of the assessee) taken into possession during the search were true, the Revenue could not have, consistently with that presumption, proceeded to require the assessee to produce materials in support of the expenditure entries. Therefore, in the absence of any materials, in the form of documents, the Revenue could not have denied the benefit of any expenses which could otherwise have incurred to the assessee, as an allowable deduction u/s. 37(1). Further, Revenue was unable to show how any of them were prohibited by law, or amounted to offences. Tribunal did not commit any error of law in holding that such expenses were deductible under the main part of s. 37(1). 

 

CIT v. Indeo Airways (P) Ltd. (2012)349 ITR 85/ 79 DTR 289  (Delhi) (High Court)

S.158BC: Search and seizure –Block assessment- Undisclosed income-on money-Order of High Court-Order of High Court overruling the judgment of Commissioner (Appeals) and Tribunal was set aside and directed the Commissioner (Appeals) to decide on merit.(S.132, 69C,158BA)

 

The Assessing Officer made  addition being “on money”  on transfer of property. Commissioner (Appeals) and Tribunal deleted the addition. On appeal by revenue the High Court  over-ruled the  decisions of the decisions of Tribunal and Commissioner (Appeals) on factual aspects, stating that cash flow statements submitted by the assessee were not supported by documents .On appeal the Court held that High Court should have remitted  case to Commissioner (Appeals) giving opportunity to assessee to produce relevant documents . Accordingly the  order of High Court was set aside and the matter was remitted to the file of Commissioner (Appeals) to decide the appeal on merits.(Block period 1-4-1990 to 13-3-2011)

 

M.K.Shanmugam ( 2012)349 ITR 384/ 210 Taxman 574 (SC)

 

Editorial:  CIT v. M.K.Shanmugam ( 2011) 203 Taxman 94(2012) 349 ITR 369 (Mad) (High Court), set aside.    

S.158BC: Block assessment- Procedure-Income of any other person- Validity of notice- Giving less than 15 days –Assessment cannot be quashed. (S.158BD, 292B)

 

Notice under s. 158BD r/w/s 158BC(a) giving less than 15 days time to file the return cannot be held to be invalid; assessment cannot be quashed on that ground. [Block period 1st April 1988 to 16th April, 1999]

 

CIT v. Naveen Verma (2012) 78 DTR 321  (P&H) (High Court)

 

S.158BD: Block assessment- Undisclosed income of any other person –Search and seizure –Notice –Giving less than 15 days to file the return  cannot be held to be  invalid, assessment cannot be  quashed on that ground. (S158BC, 292B )

 

      The effective party is entitled to the fair opportunity and the assessment being made by a fair procedure, minimum period of 15 days has been specified statutorily. At the same time, the effect of violation of principles of natural justice is not to always nullify the exercise of jurisdiction but to ensure that the compliance of such principles is made unless prejudice is caused. The notice specifying lessor period can be read as specifying the statutory period, this principle is duly recognized u/s. 292B. The Tribunal erred in concluding that failure to give notice of 15 days will vitiate the assessment itself without considering the prejudice to the assessee. Total absence of notice may be on different footing but if notice is duly served, the assessee can either avail of the statutory time for filing of the return irrespective of shorter period mentioned in the notice or can be given fresh opportunity if it is held that the assessee suffered prejudice on account of shorter period mentioned in the notice. In any situation, it is not permissible to quash the assessment proceedings merely on the ground that period mentioned in the notice was lesser than the statutory period specified u/s. 158BC(a).Appeal of revenue was allowed.(Block period Ist April ,1988 to 16 th April 1999)

 

CIT v. Naveen Verma(2012) 254 CTR 76(P&H) (High Court)

 

Editorial : Refer Navin verma v.ACIT (2006) 100 ITD 73 (Delhi)(Trib.), reversed.

 

S.158BD: Block assessment- Undisclosed income of any other person-Review petition allowed-Satisfaction not recorded-Same Assessing Officer-Matter restored to the Tribunal (S.158BC, 158BD )

 

If both the assessments i.e. one under s. 158BC and the other u/s. 158BD are completed by the same officer, the decision of the Supreme Court in Manish Maheshwari vs. ACIT (2007) 208 CTR (SC) 97 (2007) 289 ITR 341 (SC) has no application – In the instant case Revenue has produced documents to substantiate that both the assessments were completed by the same officer.Therefore, review petition is allowed by recalling the judgment in CIT v.  T.M. Kuriachan(Dr.) (2012) 79 DTR 443 (Ker)(High Court) and the order of the Tribunal is vacated with the direction that if, on verification by the Tribunal it is noticed that assessments on both assessees one under s. 158BC and the other u/s. 158BD were completed by the very same AO, the Tribunal would treat its order as cancelled and restore the appeal before it to take decision on merits after hearing both sides.

 

CIT v. T.M. Kuriachan(Dr) (2012) 79 DTR 447 (Ker)(High Court)

 

Editorial: Judgment in CIT v. T.M.Kuriachan (Dr)( 2012) 79 DTR 443 (Ker)(High Court) is recalled .

S.179:Company in liquidation- Liabilities of directors-Non-executive director- Natural justice- Order passed without giving an opportunity of being heard and without informing about efforts made by the department to recover tax due from company  was set aside.(S.264)

 

The assessee was non-executive director of company. He resigned from the Board on 29th April 1994.On 27 the September , 2006 the assessee was issued notice to recover the tax due of the company for the assessment years 1986-87 to 1993-94 under section 179 of the income tax Act. The  assessee informed to the assessing Officer that the Company is a partnership form having 80%  share hence the  assessing Officer must  proceed against the firm for recovery due s of the Company.  The Assessing  Officer rejected the application of assessee. Assessee moved petition under section 264 which was rejected by the Commissioner without giving an opportunity of hearing. On writ petition the  Court set aside the order of Commissioner and  Assessing Officer and directed the Assessing Officer to pass an order after following principle of natural justice  and including  granting a personal hearing .

 

Bhupatlal J.Shah v.ITO ( 2012) 210 Taxman 481 (Bom.)(High Court)

S.192: Deduction at source- Salary – Hospital engaged some doctors on fixed monthly remuneration – governed by its service rules – Remuneration paid is salary  tax is to be deducted.

 

Where assessee-hospital engaged some doctors on fixed monthly remuneration, and doctors were governed by its service rules, remuneration paid was taxable as ‘salaries’ and liable for deduction of tax under section 192. (AY 2007-08 & 2009-10)

 

DCIT v. Wockhard Hospitals Ltd. (2012) 139 ITD 161 (Hyd.)(Trib.)

 

S.194C: Deduction  at source – Contractors-Works contract – Contract for purchase of natural gas, payment of charges for transportation of natural gas to seller, the transportation charges not liable to tax deduction at source.

 

The assessee was engaged in the manufacture of fertilizers. For its activities, it consumed natural gas which was supplied by different agencies through pipelines. According to the revenue, while purchasing the gas from the agencies, the assessee entered into a work contract for transport of such gas from the sellers premises to the buyers consumption points. It was the case of the Revenue that upon payment for such works contract, the assessee was required to deduct tax at source at the appropriate rate under sec. 194C of the Act. The Tribunal referred to various clauses of the agreement between the assessee and the seller holding that the assessee did not hire any service for carriage of goods and that, therefore, the case would not fall in clause (c) of Explanation III to sec. 194C of the Act. Held, dismissing the appeal that  Transportation of gas was only a part of the entire sale transaction. The clear understanding of the parties that the ownership of gas would pass on to the buyer at the delivery point showed that the transport of gas by the seller was a step towards execution of contract for sale of gas and there was no contract for carriage of goods. Section 194C(1) does not require that a contract to carry out a work or the contract to supply  labour to carry out work should be confined to works contract.  However, there was no contract between the seller and the assessee for carriage of goods. Transportation of gas by the seller was only in furtherance of contract of sale of goods. Thus, the case was not covered under sec. 194C. The transportation charges did not depend on the consumption of quantity of gas but were a fixed monthly charges to be borne by the assessee as part of the agreement between the parties. Therefore, the application of sec. 194C did not arise. Appeal of revenue was dismissed.(A.Y.2005-06)

 

CIT v. Krishak Bharati Co-op. Ltd. (2012) 349 ITR 68/253 CTR 402/211 Taxman 236/78 DTR 154 (Guj)(High Court)

S.194C: Deduction at source – Contractor/ sub-contractor – Payment to labours through Maharashtra Mathadi Hamal – no relationship of principal and contractor between parties – Not liable for TDS

 

Assessee was registered under Maharashtra Mathadi Hamal and other Workers (Regulation of Employment and Welfare) Act, 1969. As per provisions of said Act, assessee appointed labourers through Mathadi Board. Assessee made payment of wages to Mathadi Board which in turn remitted same to labourers. It was held that there being no relationship of principal and contractor between parties, assessee was not required to deduct tax at source while making payment of wages to Mathadi Board. (AY 2007-08)

 

Gokuldas Virjibhai & Co. v. ITO (2012) 139 ITD 284 (Pune)(Trib.)

S.234B: Interest-Advance tax-Minimum alternative tax-Interest cannot be charged  on the brought forward tax credit balance .(S.115JA )

 

The question before the Court was whether the department is entitled to charge interest under section 234B  of the income-tax  Act,1961 ,on the bringing forward the tax credit balance in to the year of account relevant year

 

Following the case in CIT v. Tulsyan NEC Ltd (2011) 330 ITR 226 (SC) , the civil appeals of the department were dismissed.(A.Y. 2001-02)

 

CIT v. Sage Metals Ltd ( 2012) 210 Taxman 582/254 CTR 455 (SC)

S.234C: Interest- Deferment of advance tax- Waiver or reduction

 

For asst. Years 1999-2000 and 2000-01, instructions dated 23rd May, 1996 were applicable for considering waiver or reduction of interest under sec. 234C, and not the instructions dated 26th June, 2006, assessee had requested for release of the FDRs for payment of the advance tax instalment, assessee was therefore entitled to waiver of interest u/s. 234C to the extent of 40 per cent. (A.Ys. 1999 – 2000 & 2000 – 01)

 

Super Cassettes Industries Ltd v. Chief CIT (2012) 79 DTR 99 /254 CTR 521(Delhi)(High Court)

 

S.250: Appeal- Commissioner (Appeals-)-Procedure-Opportunity of hearing to Assessing Officer-Matter set aside.

 

On an appeal filed by assessee, the CIT(A) as a quasi – judicial authority, must provide an opportunity of hearing to AO as mandated by S. 250. In case Form ITNS 51 is not returned to CIT(A) by AO, CIT(A) is not justified in presuming that the AO or his representative is not interested in appearing before CIT(A). ITNS 51 though served on AO having  not been received back by CIT(A), appeal decided by CIT(A) without informing the next date of hearing to AO was in violation of principles of natural justice. Matter remanded to CIT(A) for decision afresh after affording  opportunity of hearing to A.O. (A.Y. 2007 – 2008)

 

ACIT v. Himanshu Gandhi (2012) 79 DTR 47/150  TTJ 133(Mum.) (Trib.)

 

S. 253: Appeal – Appellate Tribunal – Tax effect less than Rs. 3 lakhs – Revenue appeal not maintainable

 

In view of Instruction No. 3, dated 9-2-2011, where tax effect involved in revenue’s appeal was less than Rs. 3 lakhs, same was to be dismissed being non-maintainable. (AY 2005-06)

 

I.J. Tools & Castings (P.) Ltd. v. ACIT  (2012) 139 ITD 414 (Asr)(Trib.)

 

S.254(2):Appeal- Appellate Tribunal- Orders- Rectification of mistake apparent from the record-Rectification is not possible even though subsequent year has given contrary conclusion. 

 

Tribunal, after considering the entire material on record, arguments advanced and case law cited, having consciously reached a conclusion, order of Tribunal cannot  be said to suffer from mistake apparent form record even though subsequently on similar facts, Tribunal reached a contrary conclusion. (A.Ys. 1998-99, 2002-03, 2003-04 & 2005–06)

 

Pravan Air Products (P) Ltd v. Jt. CIT (2012) 79 DTR 198 (Ahd) (Trib.)

S.260A: Appeal -High Court –Monetary limit- Maintainability – Small tax effect.

 

      Tax effect of the instant appeal filed by the revenue was less than the there shold monetary limit for filing of appeal by the Revenue as prescribed by Instruction No.F.279/126/98-ITJ, dated 27th March 2000 and the instruction No.2 of 2005 dated 24th Oct. 2005 and no questions of general importance are involved and therefore appeal is dismissed.(A.Y.1988-89)

 

CIT v. S. Akbar Shah (2012) 253 CTR524  (Mad)(High Court)

S.260A: Appeal- High Court – Monetary limit-Maintainability – Small tax effect – Circulars or Instructions issued u/s. 268A by the CBDT are applicable not only to new cases but to pending cases as well.(S.268A)

 

Circulars or instructions issued u/s. 268A by the CBDT are applicable not only to new cases but to pending cases as well; in view of instruction No.3 of 2011, dated 9th Feb. 2011, appeals were not maintainable. (A.Ys. 1988-89 & 1989-90)

 

CIT v. Vijay V. Kavekar (Smt) L/H Late Vijaykumar B. Kavekar. (2012) 253 CTR 481 (Bom)(High Court)

 

S.263: Commissioner- Revision of orders prejudicial to revenue-Investment  allowance- Machinery used in manufacture of denatured spirit – Assessee is entitled to investment allowance –Revision held to be not valid. (S.32A)

 

The assessee was allowed investment allowance by the income tax officer. The Commissioner, in revision u/s. 263 of the I.T Act, 1961, withdrew it on the ground that the assessee manufactured rectified spirit and denatured spirit and sold arrack after diluting the rectified spirit. Held that item 1 of the Eleventh Schedule reads “Beer, wine, and other  alcoholic spirits”. The words “other alcoholic spirits” are grouped with the words “beer” and “wine”. “Beer” and “wine” are alcoholic spirits which are fit for human consumption. They are in other words postable alcoholic spirits. That is not the case with rectified spirit or industrial alcohol. Industrial alcohol or rectified spirit was not intended to be included within “other alcoholic spirits.” The revision held to be not valid and assessee could not be denied investment allowance.(A.Ys.1985-86,1986-87,1989-90)

 

CIT   v. O.R. Distilleries Ltd. (2012) 349 ITR 215 (AP)(High Court)

S.263: Commissioner-Revision of orders prejudicial to revenue– Complete application of mind by the Assessing  Officer –Rerevision warranted.(S.40(a)(ia) )

 

The assessee was engaged in the business of manufacturing and export of jewellery. During the course of assessment proceedings, while examining the details of expenses relating to the head ‘miscellaneous expenditure’ , the AO took the view that expenses on account of repairs and maintenance were capital expenditure and disallowed them, also AO made disallowance u/s 40(a)(ia). This order was revised and cancelled by CIT u/s 263. It was held that there was a complete application of mind by the AO while examining the expenditure under the brand promotion and brand building. Thus, the view taken by the AO was prima facie correct and therefore, there was no reason to hold that such an order was erroneous or prejudicial to the interest of revenue. (AY 2006-07)

 

Fine Jewellery (India) Ltd. v. ACIT (2012) 19 ITR 746 (Mum.)(Trib.)

S.263: Commissioner- Revision of orders prejudicial to revenue-Transfer pricing-Assessment order following binding TPO’s order is not “erroneous or prejudicial”. Doubt raised whether TPO’s order can at all be revised u/s 263. [92CA(3)]

 

The assessee sold equity shares held by it in PT Essar, Indonesia, to Essar Global Ltd, Mauritius, and claimed a capital loss of Rs. 19 crores by adopting the NAV method for computing the sale price. The TPO rejected the NAV method and held that the PE method was the appropriate method. He recomputed the ALP and reduced the capital loss to Rs. 7.41 crores. The AO passed an assessment order in conformity with the TPO’s order. The TPO thereafter submitted a proposal to the DIT which was forwarded to the CIT that the average of the NAV & PE method should have been adopted instead of the PE method to compute the capital loss and that the TPO’s order be revised u/s 263. However, instead of revising the TPO’s order, the CIT passed an order u/s 263 holding that the assessment order was erroneous and prejudicial to the interests of the revenue. On appeal by the assessee to the Tribunal,  held ;

 

(i)         While the TPO proposed, in his application to the DIT/CIT that s. 92CA(3) order be considered for revision, the CIT revised the assessment order passed u/s 143(3). This action of the CIT is not appropriate because as so long as the TPO’s s. 92CA(3) is not revised, it is binding on the AO u/s 92CA(4). There is no fresh reference to the TPO nor is there any revised order of the TPO. As, in the assessment order, the AO followed the binding order of the TPO, there is no error in the assessment order capable of revision (Sun Microsystems (ITAT Bang) distinguished on the ground that at that the AO was not bound by the TPO’s order);

 

(ii)        The issue whether the TPO’s order could be revised by the CIT or by the DIT is not considered as it does not arise in the present case though as the CIT has no administrative jurisdiction over the TPO, he could not have revised the s. 92CA(3) order passed by the TPO. There seems to be no clarity about the authority competent to modify the TPO’s order in case it is is prejudicial to the interests of the revenue. The CIT cannot exercise jurisdiction over the TPO as the TPO functions separately under the DIT (TP). The DIT should have initiated the s. 263 proceedings himself instead of sending a proposal to the CIT for revising the TPO’s order though the question would also arise whether the DIT can revise an order which he himself has approved as per the Board’s Circular;

 

(iii)       Further, the issue as to whether the TPO ought to have adopted the NAV method or the PE method or an average of the two is a debatable issue on which two opinions are possible. If the AO/TPO has taken a possible view, the order cannot be branded erroneous merely because the CIT feels that the other view should have been taken ( CIT v Max India Ltd.(2007) 295 ITR 282 (SC) followed ). (A. Y. 2005-06)

 

Essar Steel Limited v. ACIT (Mum.)(Trib)www.itatonline.org

 

S.264: Commissioner- Revision of other order- Natural justice –Speaking order-Commissioner must pass a reasoned order which would ensure due application of mind, Accordingly the order was set aside.(S.179 )

 

The assessee was non-executive director of company. He resigned from the Board on 29th April 1994. On 27 the September , 2006 the assessee was issued notice to recover the tax due of the company for the assessment years 1986-87 to 1993-94 under section 179 of the income tax Act. The  assessee informed to the assessing Officer that the Company is a partnership form having 80%  share hence the  assessing Officer must  proceed against the firm for recovery due s of the Company.  The Assessing  Officer rejected the application of assessee. Assessee moved petition under section 264 which was rejected by the Commissioner without giving an opportunity of hearing. On writ petition the  Court set aside the order of Commissioner and  Assessing Officer and directed the Assessing Officer to pass an order after following principle of natural justice  and including  granting a personal hearing .

 

Bhupatlal J.Shah v. ITO ( 2012) 210 Taxman 481 (Bom.)(High Court)

 

S.264: Commissioner-Revision of other order- Revised return was filed beyond limitation, Commissioner was directed to rectify the return and grant the relief.(S. 10(34), 10(38),139(5) )

 

The assessee filed the return of income wherein he has shown dividend and long term capital gains as taxable and forgot to claim the exemption .On receipt of intimation the assessee filed the revised the return claiming the exemption. The Assessing Officer has not taken the congnisance of revised return as the same was filed beyond time limit specified under section 139(5).The Assessee filed the revision application under section 264 against the intimation under section 143(1).The Commissioner rejected  the application under section 264 . The Assessee also filed rectification application before the Assessing Officer under section 154, which was pending. The Honourable Court quashed the order passed under section 264  and directed the Assessing Officer to dispose the application keeping in mind the object of circular dated 11-4-2005.The Court also observed that in any civilized system, the assessee  is bound to pay the tax which he is liable under the law to the Government .The Government on the other hand is obliged to collect only that amount of tax which is legally payable by an assessee .The entire object of administration of tax is to secure the revenue for the development of the Country and not to charge assessee more than that which is due and payable by the assessee.(A.Y.2007-08)

 

Sanchit Software & Solutions (P.) Ltd (2012)349 ITR 404/ 210 Taxman 539 (Bom.)(High Court)       

S.264: Commissioner-Revision of other order- Rectification of mistake Rectification of mistake is maintainable and is not barred by section 154(IA  ).(S.154(IA)

 

An order was passed under section 264   by the Commissioner against the  order of Assessing Officer  under section 143 (3).Where in an amount of Rs 6.80 lakhs was allowed and balance amount of Rs 31.25 lakhs was disallowed. The assessee moved an application 154 before the Commissioner. The Commissioner declined to entertain the application placing   reliance on section 154(IA). On writ the court held that the application was not made before the Assessing Officer who passed the order which was the subject-matter of revision, but, the application was made before the revisional authority himself for rectification. Such an application was maintainable and was not barred by section 154(IA).Accordingly the writ petition was allowed. (A.Y.2007-08)

 

Janata Co-Operative Bank Ltd  v. CIT ( 2012) 349 ITR 715 (Bom.)(High Court)  

S.271(1)(c): Penalty-Concealment Search and Seizure -Explanation 5(2) Penalty – Non – disclosure of income due to bona fide belief that income was not taxable and the assessee paying taxes and co-operating with revenue, penalty could not be imposed.(S.132)

 

A search was carried out in the business premises of the assessee on Sept. 20, 1989. During  the course of search, it was discovered that the assessee had invested an amount of Rs.11 lakhs in two properties and this had not been disclosed. The assessee admitted the purchase of the property out of income which was not disclosed. The non disclosure of the income was due to the circumstances that he was an uneducated and illiterate petty contractor who received payments only after deduction of tax at source. Thereafter, the assessee field returns for the asst. years 1985-86 to 1989-90. These returns were accepted as they were, without any further payment of tax and regularized after issuance of a notice u/s. 148 of the Act. The assessee paid the tax due and made an application for waiver of interest. Waiver was granted. The A.O. was of the view that the assessee did not fulfil the requirements of clause (2) of Explanation 5 to sec. 271(1)(c) and, therefore, was liable to pay penalty. The Tribunal held that penalty could not be levied. The Tribunal also concluded that the conduct of the assessee was not contumacious. On appeal to the High Court:Held, dismissing the appeals, that since both the Commissioner (Appeals) and the Tribunal were satisfied about the bona fides of the assessee and the assessee had complied with the provisions of clause (2) of explanation 5 to section 271(1)(c) of the Act, no case for imposition of penalty was made out.(A.Y.1985 -86 to 1989-90 )

 

CIT  v. B. Venkatesam  (2012) 349 ITR 413 (AP)(High Court).

 

CIT v. B.Yadagiri (2012) 349  ITR 343 (AP)(High Court)

 

CIT v. B.Nagendar(2012) 349 ITR 343 (AP)(High Court)

S.271(1)(c): Penalty –Concealed of  income-Recording of satisfaction- No  was satisfaction recorded hence penalty is not  leviable- Deemed satisfaction  does not to apply to earlier years.

 

The Assessing Officer has  added a sum of Rs.11,000 to the income returned by the assessee as per the revised return. Sub-section (1B) of sec. 271 creates a fiction by which the satisfaction of the    Assessing  Officer  is deemed to have been recorded in cases where an addition or disallowance is made by the Assessing Officer  and a direction for initiation of penalty proceedings is issued. This provision is made effective retrospectively with effect from April 1, 1989. As the assessment order for the asst. year 1984-85 had been passed on March 27, 1987, prior to April 1, 1989, the revenue could not rely on sub section (1B) of sec. 271. The Assessing Officer should, before imposing penalty, record in the assessment order his satisfaction that the assessee had either concealed the income or furnished inaccurate particulars of income in his return. There was no finding in categorical terms in the assessment . order that the assessee had furnished inaccurate particulars or had concealed income. Appeal of assessee was allowed. (A.Y. 1982-83 to 1984-85)

 

Chennakesava Pharmaceuticals v. CIT(2012) 349 ITR 196 (AP)(High Court)

S.271(1)(c): Penalty – Concealment- Depreciation-Claim for deduction which was debatable. Penalty could not be levied.

 

The assessee claimed depreciation on a building which was being used by the firm in which the assessee was a partner. In quantum proceedings it had been held that the assessee was not entitled to depreciation on the building as it was being used by the firm and not by the assessee. Imposition of penalty u/s. 271(1)(c) of the  Act, is not akin to or like criminal proceedings and the question of mens rea or mala fides on the part of the assessee need not be examined and is not relevant. At the same time, it is not mandatory that in each case where addition or disallowance is made by the AO, penalty must and should be imposed. When an assessee establishes that he had acted bona fide and all facts and material were disclosed by him penalty should not be imposed. A wrong deduction claimed can amount to furnishing of inaccurate particulars. However, a distinction must be drawn between a false claim, which cannot be countenanced and claims which are made on the basis of legal provisions which are debatable and quite plausible.  When a legal issue arises for consideration, which is debatable but the claim made by the assessee is not accepted, there is no jurisdiction to invoke the penalty provisions u/s. 271(1)(c). Divergent legal views on legal interpretation of a statute can take place, but it is not necessary that there should be uniformity or consensus of opinion on the aspects of law.   (A.Y.2005-06)

 

Karan Raghav Exports P. Ltd. v. CIT (2012) 349 ITR 112 (Delhi)(High Court)

S.271(1)(c): Penalty – Concealment-Furnishing of inaccurate particulars – Disclosure of the sum in the year of receipt  – No concealment as all facts disclosed .

 

The assessee was engaged in the business of copyrights of motion pictures. The assessee received consideration on transfer of its ownership rights of the movie in the previous year relevant to the assessment but agreement was signed in next year. Addition was made on this account and penalty was initiated. It was held that the factual matrix of the case no where proves that the assessee had either concealed the income or furnished any inaccurate particulars. The fact that it had mentioned the consideration in the year of receipt itself proved its bona fide. It was further held that every instance of addition does not ispo facto led to a conclusion that the assessee was guilty of concealment as penalty proceedings were altogether different in nature. (AY 2007-08)

 

ITO v. Jain Associates (2012) 19 ITR 824 (Mum)(Trib.)

S. 271(1)( c): Penalty – Concealment – Capital gain on sale of shares- No penalty in case of bonafide belief. [S.10(23G)]

 

Assessee filed its return of income electronically. Assessing Officer made certain inquiry and found that assessee did not offer capital gain on sale of shares of Mumbai SEZ to tax. He, accordingly, brought to tax capital gain and levied penalty upon assessee for concealment of income. It was held that where assessee was under a bona fide belief that capital gains arising on sale of SEZ shares were exempt from taxation and application under section 10(23G) to that effect was pending with CBDT, levy of penalty for concealment of income was not justified. (AY 2006-07)

 

Skil Infrastructure Ltd. v. ACIT (2012) 139 ITD 25 (Mum.)(Trib.)

 

Interpretation of taxing statutes – Words used in provision – Principles of  Noscitur A Sociis and Ejusdem Generis.

 

General words in a statute must receive general construction. This is, however, subject to the exception that if the subject matter of the statute or the context in which the words are used, so requires a restrictive meaning is permissible to the words are used, so requires a restrictive meaning is permissible to the words to know the intention of the legislature. When a restrictive meaning is given to general words, the two rules often applied are noscitur a  sociis and ejusdem generis. Noscitur a sociis literally means that the meaning of the word is to be judged by the company it keeps. When two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. The expression ejusdem generis – “of the same kind or nature” signifies a principle of construction whereby words in a statute which are otherwise wide but are associated in the text with more limited words are, by implication given a restricted operation and are limited to matters of the same class of genus as preceding them. (A.Ys.1985-86,1986-87, 1989-90)

CIT v. O. R. Distilleries Ltd ( 2012) 349 ITR 215 (AP)(High Court)

Service Tax

 

S.65: Service  tax chargeability – General Insurance business –  Public interest- liable to service tax in respect of insurance activity of financing  of vehicles.-Levy is not ultra vires.(Finance Act ,1994. S.69 )

 

Perusal of Circular No.89/7/2006-ST, dated 18th Dec. 2006 shows that what is exempted in para 2 is the activities performed by sovereign/ public authorities under the provision of law, which are in the nature of statutory obligations which are to be fulfilled in accordance with law. The fee collected by them for performing such activities is in the nature of compulsory levy as per the provisions of the relevant statute and it is deposited into the Govt. treasury. Such activity is purely in public interest and it is undertaken as mandatory and statutory function. It is in those cases, service tax is not leviable. Insurance  activity carried on by the assessee in respect of vehicles owned by the Government departments and commercial concerns and vehicles financed by the Government falls within para 3  of Circular referred above  and the same is exigible to  service tax , levy is not ultra-vires , arbitrary or unreasonable.

 

Karnataka Government Insurance Dept. v. Astt .Commissioner of Central Excise & Ors (2012)253 CTR 603/78 DTR 282 (Karn)(High Court) 

 

S.65: Service tax-Taxable service – Storage and warehousing service – Terminal charges for export cargo and passenger baggage-Insurance coverage to employees is not liable to service tax- Other coverage of general  insurance is liable to  service tax. (Finance Act ,1994 )

 

      The exemption clause provided for exemption from service tax on export cargo and passenger baggage u/s. 65(23) should enjoy a liberal construction. What is specifically excluded from levy should not be brought to tax under another charging entry and if the same is permitted, the same will frustrate the  exemption clause.  All fiscal statutes provide for tax/duty exemptions to encourage exports and. 65(23) also should be understood as part of the same scheme. The only question to be considered is whether retention up to 48 yours of the air cargo and passenger baggage for X-raying, for completion of all customs formalities and the time taken by the Airlines to lift the cargo could be treated as storage and warehousing for the purpose of levy of tax u/s. 65(102).

 

Storage and warehousing obviously is storing the goods for a duration of time providing safe custody of goods. Nobody sends the cargo or passenger baggage to assessee’s terminal building for storage because goods are sent there only for shipment by air. It so happens that there is a time lag between the arrival of the goods in assessees terminal and the actual dispatch of goods by air. The short duration of time taken for unloading and transport to the plane cannot be said to be time of storage or warehousing of goods. Activity of the State Government department in providing life insurance coverage to the employees of the State Government as part of its statutory obligation for giving effect to rule 22 of part 1 of Kerala Service Rules is not taxable service so as to attract service-tax liability, however , activities regarding any other service /insurance coverage provided as part of general insurance to commercial institutions/individuals or even to a Government company are liable to service –tax .   

 

Kerala State Industrial Enterprises Ltd v. CIT(2012) 253 CTR 586/78 DTR 275  (Ker)(High Court)

S.65: Service tax- Taxable service – Insurance business – Life insurance coverage to State Govt. employees and general insurance coverage for assets of the Government. ( Sec. 44(f) of the LIC Act, 1956. )

 

S. 44(f) of the LIC Act, 1956 is very much clear and categoric to the effect that it excludes any scheme in existence on the appointed day or any scheme framed after the appointed day with approval of the Central Govt. in consideration of certain compulsory reduction made by the Governemnt from the salary of its employees as part of the conditions of service, assuring payment of money on the death of the employee or on the happening of any contingency dependent on his life. It is also relevant to note that by virtue of r. 22A of part I of KSR, which rules have been formulated by the State Govt. is exercise of the power under Art 309 of the Constitution of India, it is obligatory on the part of any State Government employee to have applied for and obtained coverage in respect of life by subscribing to a policy, in the official branch of the State Life Insurance and shall continue to subscribe the same till he ceased from the `service’. The said provision itself makes it clear that there is a reciprocal statutory duty upon the State Insurance Department to provide policy to such State Government employees and this statutory obligation cannot be stated as a `taxable service’ provided to any individual or establishment or class of such persons.

 

Activity of the State Govt. Department in providing `life insurance coverage’ to the employees of the State Government as part of its statutory obligation for giving effect to r. 22A of part I of Kerala Service Rules is not a taxable service so as to attract service tax liability; however, activities regarding any other service/insurance coverage provided as part of general insurance business to commercial institutions/individuals or even to a Government company are liable to service tax.

 

Kerala State Insurance Department v. UOI(2012) 253 CTR 593/78 DTR 286   (Ker)(High Court)

 S.76 – Penalty

 

Penalty u/s 76 and 78 of the Finance Act, 1994 is not automatic; not only the ingredients of ss. 76 and 78 should exist, but also there should be absence of reasonable cause for the said failure, ss. 76 and 78 are mutually exclusive, if penalty is payable under s. 78 s. 76 is not attracted; authority has the discretion regarding the quantity of the penalty to be imposed; however, the penalty to be imposed cannot be less  than the minimum or more than the maximum prescribed under the statute; minimum penalty to be imposed was Rs.100 and not Rs.100 per day till the amendment w.e.f. 18th April, 2006.

 

CST v. Motor World & Ors. (2012) 79 DTR 151 (Kar.)(High Court)

S.84: Revision – Powers of Commissioner to enhance penalty

 

When the statutory provisions prescribe a penalty at a particular rate taking away discretion on the part of the assessing authority and the assessing authority imposes penalty lesser than what is prescribed, probably a case for exercise of  revisional power is made out. However, if the penalty imposed is not less than the minimum prescribed and an element of discretion is vested in the authority to impose penalty between the minimum and maximum limits, the revisional authority cannot enhance the penalty in his revisional jurisdiction.

CST v. Motor World & Ors. (2012) 79 DTR 151(Karn)(High Court)

 

Report.

 

Accounting standards Committee Final report ( 2012) 349 ITR 87 (St)

Retrospective Amendments relating to indirect transfer –Expert committee ( 2012) 349 ITR 21 (ST)   

Articles.

 

S.54: Capital gains- Exemption of income tax on capital gains –S. 54, 54EC, and 54F  -By T.N. Pandey  ( 2012) 349  ITR 17 (Journal)

 

S.54F: Capital gains- Non applicability of section 50C in interpreting provisions of section 54F  – by R.L.Sangani ( 2012) 254 CTR 28 (Articles)

 

S.214: Interest- The case of Gurarat Flourd Chemicals Raising peculiar points –By  Minu Agarwal ( 2012) 254  CTR 49 (Articles)

 

S.271(1)(c ): Penalty concealment-Concealment penalties under Income-tax Act : Supreme Court accepts “to err is human” by T.N.Pandey ( 2012) 349  ITR 35(Journal)

 

S. 271 (1)(c ): Penalty concealment-Relevancy of  revised return in mitigating penalty- The Immortal effect of judicially created anomaly- by  Minu Agarwal

 

(2012) 254 CTR 25 (Articles) 

A.

 

Accounts –Draft tax accounting standards –Defects and observations  -By  S.Ramachandran (2012) 254  CTR 52 (Articles)

 

D.

 

Double tax Avoidance –Government’s persistence with Indo –Mauritius Tax treaty  despite its abuses is amazing- by T.N.Pandey ( 2012) 254  CTR 32 (Articles)

 

G.

 

GAAR-Shome Committee Report by S. Rajarathnam (2012) 349  ITR 1 (Journal)

H.

 

Human rights and tax payers –by N.M.Ranka ( 2012) 254  CTR 39 (Articles)

 

I.

 

Indirect transfer  -Draft report on retrospective amendments by S.Rajaratnam ( 2012) 349  ITR 29 (Journal)

 

K.

 

Kelkar Committee Report on Reform (2012) –By S.Rajaratnam ( 2012) 349 ITR 35 (Journal)

 

M.

 

Money does not grow on trees by T.C.A. Ramanujam and T.C.A. Sangeetha ( 2012)349  ITR 40 (Journal)

 

S.

 

Service tax- Abatements under Service tax- by Dr. Sanjiv Agarwal ( 2012) 254 CTR 43 (Articles)

 

T.

Transfer pricing scrutiny –How long will that be compulsory? By Gopal Nathani ( 2012) 349  ITR 54 (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.