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DATE: June 25, 2018 (Date of pronouncement)
DATE: November 13, 2018 (Date of publication)
AY: 2006-07
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CITATION:
S. 253: Delay of 2819 days in filing the appeal caused by the fault of CA/ Counsel has to be condoned. the expression “sufficient cause” should be interpreted to advance substantial justice. If there is "sufficient cause", the period of delay cannot be regarded as excessive or inordinate (All judgements considered)

Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay of 2819 days has to be condoned

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DATE: October 8, 2018 (Date of pronouncement)
DATE: November 13, 2018 (Date of publication)
AY: 2013-14, 2014-15
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CITATION:
S. 253 Condonation of delay: An assessee supported by large number of CAs & Advocates cannot seek condonation of delay on the ground that the officer handling the issue was transferred. A party cannot sleep over its rights and expect its appeal to be entertained. The fact that the issue on merits is covered in favour of the assessee makes no difference to the aspect of condonation of delay

The assessee is a scheduled bank supported by a large number of personnel and also assisted by qualified Chartered Accountants and Advocates. The reason as come out from the condonation petitions filed by the assessee, as stated earlier, is that there was transfer of the officer who was handling the issue. We cannot accept such proposition as it cannot be considered as good and sufficient reason to condone the delay. It was submitted that the delay is to be condoned since the issue on merit covered in favour of the assessee. This submission ignores the fact that the object of the law of limitation is to bring certainty and finality to litigation

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DATE: August 24, 2016 (Date of pronouncement)
DATE: November 8, 2016 (Date of publication)
AY: 2008-09
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CITATION:
Article 5 DTAA: Law explained as to when a "power of attorney" holder of a non-resident can constitute a "dependent agent", "fixed place of business" and a "permanent establishment" under Article 5 of the DTAA. The fact that the physical presence of the non-resident in India is nominal is irrelevant

While business constitutes continuous activity in organized manner it is often a question of fact & law. “Place of business” usually means a premises of the enterprise used for carrying on the business, whether or not exclusively used for business. The residence of the country Manager was held to be a fixed place of business as the same was used as an office address in Sutron Corporation In re 268 ITR 156 AAR. Similarly an office space of 3 x 6 metres in Motorola Inc & Ors 95 ITD 269 (Del). To constitute a PE, the business must be located at a single place for a reasonable length of time. The activity need not be permanent, endless or without interruptions. It may not be out of place to mention that functions performed by Sri V. Subramanian or the Indian subsidiary could not be classified as preparatory or auxiliary in character. The facts strongly indicate towards Sri V. Subramanian constituting a dependent agent / PE for reasons brought on record by the AO and as discussed in foregoing paragraphs. There were no presence of a number of principals who exercised legal and or economic control over the agent Sri V. Subramanian. The principal i.e. the assessee has failed to demonstrate this aspect when confronted by the AO. The principal i.e. the assessee was relying on the special skills and knowledge of the agent Sri V. Subramanian the Managing Director of the Indian entity by the same name and rendering similar functions. Sri V. Subramanian was acting exclusively or almost exclusively for and on behalf of the assessee during the currency of the contracts in question. To that extent it was not in furtherance of his ordinary course of business. Finally the refuge taken of Article 5(2)(j) on the short period of contracts and the interregnum does not offer any solace to the assessee either. The assessee has not demonstrated it was a mere passing, transient or casual presence for its activity in India

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DATE: July 24, 2015 (Date of pronouncement)
DATE: July 27, 2015 (Date of publication)
AY: 2009-10, 2010-11
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Loss suffered on account of forex derivative contracts (Exotic Cross Currency Option Contracts) cannot be treated as speculative loss to the extent that the derivative transactions are not more than the total export turnover of the assessee. If the derivative transaction is in excess of export turnover, the loss in respect of that portion of excess transactions has to be considered as speculative loss because the excess derivative transaction has no proximity with export turnover

We make it clear that total transaction considered for determining this business loss from derivative transactions cannot be more than the total export turnover of the assessee for the assessment year under consideration and if the derivative transaction is in excess of export turnover, then that loss suffered in respect of that portion of excess transactions to be considered as speculative loss only as that excess derivative transaction has no proximity with export turnover and the Assessing Officer is directed to compute accordingly

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DATE: February 18, 2015 (Date of pronouncement)
DATE: March 16, 2015 (Date of publication)
AY: 2003-04
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S. 271D/ 271E: If assessee's plea about compulsion to pay/ receive loans in cash is not disputed, the violation of s. 269SS/269T is deemed to be bonafide and does not attract penalty

It is also not mentioned in the penalty order that the aforementioned amount taken by the assessee in violation of section 269SS and repayment thereof in violation of section 269T was not bonafide transaction and the same was made with a view to evade tax

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DATE: March 5, 2015 (Date of pronouncement)
DATE: March 16, 2015 (Date of publication)
AY: 2007-08
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CITATION:
S. 41(1)/68: Failure to establish genuineness of old liabilities means that there is a remission/ cessation of such liabilities

The assessee failed to establish the genuineness of these liabilities by producing supporting evidence. Simply the liabilities being reflected against certain names in the books of account would not establish the genuineness of liabilities

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DATE: November 21, 2014 (Date of pronouncement)
DATE: December 2, 2014 (Date of publication)
AY: 2009-10
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CITATION:
S. 40(a)(ia) second proviso is not retrospective & so payment of TDS before due date of ROI does not prevent disallowance. Law laid down in Vector Shipping cannot be followed

(i) The next question arises for consideration is whether the second proviso to section 40(a)(ia) as incorporated by Finance Act, 2012 is retrospective in operation or prospective in operation. We are conscious that some of the benches of this Tribunal …

The Ramanthali Service Co-operative Bank Ltd vs. ITO (ITAT Cochin) Read More »

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DATE: January 27, 2014 (Date of pronouncement)
DATE: November 29, 2014 (Date of publication)
AY: 2009-10
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CITATION:
Consideration for use of software is not assessable as royalty under Article 12 of DTAA and s. 9(1)(vi)

(i) In order to qualify as royalty payment, it is necessary to establish that there is transfer of all or any rights (including the granting of any licence) in respect of copyright of a literary, artistic or scientific work. In …

ADIT vs. Bartronics India Ltd (ITAT Hyderabad) Read More »

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DATE: October 21, 2014 (Date of pronouncement)
DATE: October 24, 2014 (Date of publication)
AY: 2006-07
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CITATION:
charter hire payment is not assessable as royalty, there is no obligation to deduct TDS and no disallowance u/s 40(a)(i) can be made

It is very clear that the payments made by the assessee company were in the nature of simple payments for chartering ships on hire for doing the business outside India. Therefore, the payments do not satisfy the test laid down …

Mathewsons Exports & Imports vs. ACIT (ITAT Cochin) Read More »

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DATE: October 17, 2014 (Date of pronouncement)
DATE: October 21, 2014 (Date of publication)
AY: 2005-06
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CITATION:
S. 115JB: AO entitled to tinker with P&L A/c if assessee's claim not permitted by accounting principles

The question that had arisen was whether the Assessing officer was entitled to disturb the net profit shown by the assessee in the profit and loss account prepared as per the Companies Act, 1956.in order to enable anybody to understand …

Padinjarekara Agencies Pvt. Ltd vs. ACIT (ITAT Cochin) Read More »