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DATE: November 29, 2018 (Date of pronouncement)
DATE: December 7, 2018 (Date of publication)
AY: 2014-15
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CITATION:
S. 2(47) Transfer: The reduction of share capital of a company by way of reducing the face value of each share from Rs. 1,000 to Rs. 500 amounts to "extinguishment of rights" and is a "transfer" u/s 2(47) of the Act. The assessee is eligible to claim a capital loss therefrom (Kartikeya V. Sarabhai vs. CIT 228 ITR 163 (SC) & other judgements followed)

Sec. 2(47) which is an inclusive definition, inter alia, provides that relinquishment of an asset or extinguishment of any right there in amounts to a transfer of a capital asset. While, it is no doubt true that the appellant continues to remain a shareholder of the company even with the reduction of a share capital but it is not possible to accept the contention that there has been no extinguishment of any part of his right as a shareholder qua the company. It is not necessary that for a capital gain to arise that there must be a sale of a capital asset. Sale is only one of the modes of transfer envisaged by s. 2(47) of the Act. Relinquishment of the asset or the extinguishment of any right in it, which may not amount to sale, can also be considered as a transfer and any profit or gain which arises from the transfer of a capital asset is liable to be taxed under s. 45 of the Act

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DATE: June 21, 2016 (Date of pronouncement)
DATE: August 20, 2016 (Date of publication)
AY: 2007-08
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CITATION:
Transfer Pricing: Argument that transaction of extending credit period to AEs cannot be regarded as “international transaction” in the absence of any income arising therefrom is not acceptable. Observations in Vodafone vs. UOI 368 ITR 1 (Bom) are in a different context. The transaction of extending credit period to AEs is closely linked with the transaction of providing services to the AE and is not a separate transaction. Both transactions have to be aggregated for determination of ALP

Extending credit period for realization of sales to the AE is a closely linked transaction with the transaction of providing services to the AE and therefore cannot be treated as an individual and separate transaction of advance or loan. Accordingly, we direct the A.O/TPO to redo the exercise of determination of ALP by considering the credit period allowed in realization of sales proceeds as closely linked transaction with the transaction of providing services to the AE and therefore both has to be clubbed and aggregated for the purpose of determination of ALP

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DATE: February 9, 2016 (Date of pronouncement)
DATE: March 30, 2016 (Date of publication)
AY: 2011-12
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CITATION:
S. 115JA/115JB: Capital receipts (such as subsidy & carbon credits), which have no income element, have to be excluded from book profits even if credited to the P&L A/c

The genesis of Sec 115J, thereafter section 115JA and now section 115JB was to ensure that the assessee, while making profit from operations, should not enjoy tax free status due to various deductions available under the Income Tax Act. There was never any intention of the legislature to tax what is not income at all. In a recent decision, the Hon’ble Apex Court in the case of Indo Rama Synthetics (I) Ltd -vs- CIT (2011) 330 ITR 363 (SC) has held that the object of MAT provisions is to bring out the real profit of the companies. The thrust is to find out the real working results of the company. Inclusion of receipt in the computation of MAT would defeat two fundamental principles, it would levy tax on receipt which is not in the nature of income at all and secondly it would not result in arriving at real working results of the company. The real working result can be arrived at only after excluding this receipt which has been credited to P&L a/c and not otherwise

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DATE: January 23, 2015 (Date of pronouncement)
DATE: July 8, 2015 (Date of publication)
AY: 2009-10
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CITATION:
S. 14A & Rule 8D: (i) Investments in subsidiaries & joint ventures are for strategic purposes and not for earning dividend and so the expenditure cannot be disallowed, (ii) If the AO does not deal with the assessee's submissions and merely says "not acceptable" it means he has not recorded proper satisfaction

Investment in subsidiary companies and joint venture companies are long term investment and no decision is required in making the investment or disinvestment on regular basis because these investments are strategic in nature and no direct or indirect expenditure is incurred for maintaining the portfolio on these investments or for holding the same. The department has not disputed that the purpose of investment is not for earning the dividend income but having control and business purpose and consideration

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DATE: June 23, 2015 (Date of pronouncement)
DATE: July 8, 2015 (Date of publication)
AY: 2009-10
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CITATION:
S. 2(47)(v): Even if possession is handed over to the developer, there is no "transfer" if the developer has only paid an interest-free advance to the assessee to meet expenses

The provisions of section 2(47)(v) of the Act can only be invoked where absolute possession of capital asset was given to the buyer against certain consideration, but in the instant case no consideration was ever fixed for handing over the possession to the developer and whatever amount was received it was received as interest free advance to meet the expenses to be incurred in discharging certain responsibilities agreed upon in this agreement. Therefore, from any angle there is no transfer of asset as per provisions of section 2(47) of the Act and capital gain would only be chargeable in the years in which stock-in-trade would be sold

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DATE: June 17, 2015 (Date of pronouncement)
DATE: June 19, 2015 (Date of publication)
AY: 2010-11
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CITATION:
S. 11, 68, 115BBC: Law on taxing of "anonymous donations" received by a charitable trust explained

To be excluded from the definition of expression “anonymous donation” the person receiving the voluntary contributions referred to in section 2(24) (iia) is required to maintain a record of identity indicating the name and address of the contributor and such other particulars as may be prescribed. Since no other particulars have been prescribed under the provisions the person receiving the donation is under obligation to maintain the identity of donors indicating the name and address only

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

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

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DATE: January 16, 2015 (Date of pronouncement)
DATE: January 19, 2015 (Date of publication)
AY: 2012-13
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CITATION:
S. 271FA: As DIT is of the same rank as the CIT(A), an appeal against the DIT's order can only be filed before the ITAT even though s. 253(1) does not refer to s. 271FA

Though there is no specific reference of the order passed under section 271FA of the Act by the Director of Income-tax in section 253(1) of the Act for the purpose of filing an appeal against the said order, but an analogy drawn from the reading of section 253(1) of the Act is that the order passed by the Commissioners of Income-tax or an Officer who is equal in rank can only be challenged before the Tribunal, which is higher in rank

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DATE: November 5, 2014 (Date of pronouncement)
DATE: November 11, 2014 (Date of publication)
AY: 2008-09
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CITATION:
S. 50C vs. s. 11: If a charitable institution invests the entire sale consideration in other capital asset, s. 50C should not be invoked

The only issue in the appeal is, therefore, whether while taking the Value of Sale of capital Asset being immoveable property in case of an institution registered u/s 12A whether the provisions of section 11(1A) will prevail or deeming provisions …

ACIT vs. The Upper India Chamber of Commerce (ITAT Lucknow) Read More »

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DATE: September 18, 2014 (Date of pronouncement)
DATE: October 5, 2014 (Date of publication)
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CITATION:
Reopening of s. 143(1) assessment on the basis of the retrospective amendment of section 80HHC of the Act by the Taxation Law (Amendment) Act, 2005 is bad as the said amendment is struck doen in Avani Exports vs. CIT (Guj HC)

We find force in the contentions of the Revenue as the assessment order which was sought to be reopened by the Assessing Officer was only an intimation under section 143(1) of the Act and not a regular assessment under section …

ACIT vs. M/s Northern Tannery (ITAT Lucknow) Read More »