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Posted on by editor — No Comments ↓
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DATE: April 15, 2016 (Date of pronouncement)
DATE: April 28, 2016 (Date of publication)
AY: 2007-08
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CITATION:
S. 54F: The demolition of a structure does not amount to a "transfer". It is not correct to contend that Vania Silk Mills 191 ITR 647 (SC) is overruled by Grace Collis 248 ITR 323 (SC). Lower authorities cannot refuse to apply binding High Court judgements on the basis that the High Court has not considered a Supreme Court judgement

The demolition of the structure would not constitute a transfer of the assets in terms of Section 54(3) of the Act in view of the decision of the Apex Court in the matter of Vania Silk Mills P. Ltd. v. CIT, reported in 191 ITR 647. In the above case, the Apex Court has held that when an asset is destroyed, there is no question of transfer taking place under the Act. The Apex court held that in terms of the Act that the words ‘Extinguishment of any right’ in Section 2(47) of the Act, does not include an extinguishment of right on account of destruction. It has to be an extinguishment of right on account of transfer. Thus, a destruction of assets when not on account of any transfer would not be hit by Section 54F(3) of the Act. Counsel for the revenue seeks to distinguish the decision of the Apex Court in the matter of Vania Silk Mills P. Ltd. (Supra) that the destruction in that case took place because of fire and hence it was involuntary. This distinction is of no consequence. In our view of the decision of the Apex Court in Vania Silk Mills (Supra) would squarely apply to the facts of the present case

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Posted on by Dhaval Shah — No Comments ↓
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DATE: April 6, 2016 (Date of pronouncement)
DATE: April 13, 2016 (Date of publication)
AY: 2005-06
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S. 2(22)(d): Redemption of preference shares does not constitute "deemed dividend"

As can be seen by s. 2(22)(d), there should be a reduction of its capital and distribution to the shareholders out of the accumulated profits. Section 80(3) of the Companies Act states that the redemption of preference shares under this section by a company shall not be taken as reducing the amount of its authorised share capital. By virtue of section 80(3) redemption of preference shares cannot be considered as reduction of authorised share capital, therefore, treating them as deemed dividend does not arise, as the provisions of section 2(22)(d) can only be invoked only when there is distribution of accumulated profits by way of reduction of share capital. Therefore the question of invoking deemed dividend provision on this transaction does not arise, eventhough the redemption of shares are to be made out of the profits of the company by virtue of section 80(1) of the Companies Act. However, since it cannot be treated as reduction of authorised share capital by virtue of section 80(3) of the Companies Act, the amount received by assessee on redemption of preference shares cannot be treated as deemed dividend

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Posted on by itatbar — 1 Comment ↓
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DATE: May 8, 2015 (Date of pronouncement)
DATE: April 10, 2016 (Date of publication)
AY: 2005-06
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CITATION:
S. 48: Interest on borrowed money utilized for acquiring shares can be capitalized as cost of acquisition

Interest payable on moneys borrowed for acquisition of shares should be added to the cost of acquisition of shares for the purpose of computing capital gains (Macintosh Finance Estates Ltd vs. ACIT (2007) 12 S0T 324 (Mum) (Trib) not followed, CIT vs. Trishul Investments Ltd (2008) 305 ITR 434 (Mad) (HC) followed)

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Posted on by itatbar — No Comments ↓
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DATE: December 22, 2015 (Date of pronouncement)
DATE: April 5, 2016 (Date of publication)
AY: 2007-08
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CITATION:
S. 271(1)(c): If show-cause notice does not delete inappropriate words whereby it was not clear as to whether the default is concealing particulars of income or for furnishing inaccurate particulars of income, the levy of penalty is invalid

The Tribunal quashed penalty proceedings initiated u/s 271(1)(c) for AY 2007-08 as penalty show cause notice failed to specify default committed by assessee i.e. the AO did not delete inappropriate words / parts whereby it was not clear as to the default committed by assessee was for concealing particulars of income or for furnishing inaccurate particulars of income

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Posted on by itatbar — No Comments ↓
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DATE: February 19, 2016 (Date of pronouncement)
DATE: April 5, 2016 (Date of publication)
AY: 2009-10
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CITATION:
Transfer Pricing - alleged excess investment in share capital of wholly owned subsidiary cannot be termed as loan and notional interest charged thereon

The Tribunal deleted TP addition on account of a) alleged excess consideration paid on investment in share capital of wholly owned subsidiary re-characterized as loan b) and notional interest thereon on the ground that i. Chapter X of the Act is inapplicable to an international transaction on capital account which does not result in income chargeable to tax

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Posted on by bhavikshah — No Comments ↓
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DATE: March 15, 2016 (Date of pronouncement)
DATE: March 31, 2016 (Date of publication)
AY: 2007-08
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CITATION:
AO framed the assessment in a hypothetical way putting the assessee to enormous harassment and inconvenience . Similarly, the CIT(A) confirmed the addition without looking into the merits and facts of the cases which are very clear and apparent from the records produced.

We find that the third party transactions were added in the hands of the assessee without without any basis or material and thus, the AO framed the assessment in a hypothetical way putting the assessee to enormous harassment and inconvenience. Similarly, the ld. CIT(A) confirmed the addition without looking into the merits and facts of the cases which are very clear and apparent from the records produced

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Posted on by editor — 2 Comments ↓
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DATE: June 5, 2015 (Date of pronouncement)
DATE: February 8, 2016 (Date of publication)
AY: 2010-11
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CITATION:
S. 23(1)(b): Brokerage paid to give out premises on rent and to earn lease rent is not deductible in computing the Income from house property

The word ‘rent’ connotes a return given by the tenant or occupant of the land or corporeal hereditaments to the owner for the possession and use thereof. It is a sum agreed between the tenant and the owner to be paid at fixed intervals for the usage of such property. The phrase rent received and receivable contemplates the amount received for the enjoyment of the property and certain rights in the said property by the tenant. If there is charge directly related to the rental income or for the property without which the rights in the property cannot be enjoyed by the tenant then it can be construed as part and parcel of enjoyment of the property from where rent is received then such charges can be held to be allowable from the rent received or receivable. However, the brokerage paid to the third party has nothing to do with the rental income paid by the tenant for enjoying the property to the owner. Brokerage cannot be said to be a charge that has been created in the property for enjoying the rights and at best it is only an application of income received/receivable from rent

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DATE: September 11, 2015 (Date of pronouncement)
DATE: October 12, 2015 (Date of publication)
AY: 2009-10
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CITATION:
S. 271(1)(c): If the notice does not clearly specify whether the penalty is initiated for "concealment" or for "filing inaccurate particulars", it is invalid. Penalty should not be imposed merely because the income has been offered to tax in a later year and not in the present year

The penalty notice issued u/s 274 of the Act is ambiguous to the extent for which the penalties are initiated. The said notice does not specify where the present penalty is being levied for concealment of income or for furnishing of inaccurate particulars of income. CIT (A) did not strike of The irrelevant limb mentioned in the notice u/s 274 of the Act. CIT (A) is not clear as to the relevant limb of the provisions of section 271(1)(c) of the Act for which penalty should be levied. Further, in the quantum order u/s 250 of the Act, the CIT (A) initiated penalty for assessee’s failure in furnishing inaccurate particulars in respect of estimated cost of future expenditure resulted in suppression of income. In the penalty order of the CIT (A), penalty was levied for “concealment of particulars of income‟ in respect of the change in estimated cost. By all these variations, the CIT (A) is not clear as to whether the penalties are levied for “concealment of income” or “furnishing of inaccurate particulars of income”

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DATE: August 14, 2015 (Date of pronouncement)
DATE: August 22, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 115JB: Amount towards waiver of loan under OTSS, credited to "General Reserves" and not to the P&L Account cannot be added to "book profits"

Assessing Officer has not specified categorically that as to how the Part II & III of Schedule VI has not been followed or is against the prescribed accounting standard there is a requirement of law that waiver of loan taken for utilizing capital expansion is to be routed only through profit and loss account and cannot be credited to the ‘General Reserve’, i.e. directly in the Balance sheet

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Posted on by editor — 1 Comment ↓
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DATE: July 3, 2015 (Date of pronouncement)
DATE: July 15, 2015 (Date of publication)
AY: 2008-09
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CITATION:
S. 54: Booking a flat which is going to be constructed by the builder is a case of “construction” of the flat. If the flat is booked prior to the date of transfer of the old flat, deduction u/s 54 is not available. The date of receiving possession of the new flat cannot be regarded as the date of “purchase” of the new flat

The booking of a flat which is going to be constructed by a builder has to be considered as a case of “Construction of flat”. Deduction u/s 54 is available only if the assessee constructs a new house within three years after the date of transfer. In the instant case, the assessee has constructed a house prior to the date of transfer of original house, in which case, the assessee is not entitled to claim deduction u/s 54 of the Act in respect of the cost of new flat

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