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DATE: (Date of pronouncement)
DATE: March 11, 2011 (Date of publication)
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In view of Pithwa Engineering 276 ITR 519 (Bom) & Ashok Patel 317 ITR 386 (MP) followed in CIT vs. P. S. Jain & Co (included in file) where it was held that the CBDT Circular imposing limits on the filing of appeals by the department applied to pending appeals, Instruction No. 3/2011 Dated 9-2-2011 also applied to pending appeals and as the tax effect was less than Rs. Rs. 10 lakhs, the appeal was not maintainable.

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DATE: (Date of pronouncement)
DATE: March 10, 2011 (Date of publication)
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Article 26(2) of the India-USA DTAA provides that the taxation of a PE of an enterprise of a Contracting State in the other Contracting State shall not be less favorably levied in that other State than the tax levied on enterprises of that other Contracting State carrying on the same activities. In simple language, Article 26(2) means that taxation of a PE of a USA resident shall not be less favorable than the taxation of resident enterprise carrying on the same activities. The result is that the exemptions and deductions available to Indian enterprises would also be granted to the US enterprises if they are carrying on the same activities. As the assessee was carrying on the “same activities” of export of software as done by residents, it was entitled to deduction u/s 80-HHE as admissible to a resident assessee (Automated Securities Clearance Inc vs. ITO 118 TTJ (Pune) 619 reversed; Metchem Canada Inc vs. DCIT 99 TTJ (Mum) 702 referred to)

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DATE: (Date of pronouncement)
DATE: March 9, 2011 (Date of publication)
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While s. 91 allows credit for Federal & State taxes, the DTAA allows credit only for Federal taxes. The result is that the s. 91 is more beneficial to the assessee & by virtue of s. 90(2) it must prevail over the DTAA. Though s. 91 applies only to a case where there is no DTAA, a literal interpretation will result in a situation where an assessee will be worse off as a result of the provisions of the DTAA which is not permissible under the Act. S. 91 must consequently be treated as general in application and must prevail where the DTAA is not more beneficial to the assessee. Accordingly, even an assessee covered by the scope of the DTAA will be eligible for credit of State taxes u/s 91 despite the DTAA not providing for the same

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DATE: (Date of pronouncement)
DATE: March 9, 2011 (Date of publication)
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The answer to the question whether the waiver of a loan is taxable as income or not depends on the purpose for which the loan was taken. If the loan was taken for acquiring a capital asset, the waiver thereof would not amount to any income exigible to tax u/s 28(iv) or 41(1). On the other hand, if the loan was taken for a trading purpose and was treated as such from the very beginning in the books of account, its waiver would result in income more so when it was transferred to the P&L A/c in view of Sundaram Iyengar 222 ITR 344 (SC)

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DATE: (Date of pronouncement)
DATE: March 8, 2011 (Date of publication)
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If an assessment happens to be an under-assessment or a mistaken order, the course open to the AO is either to rectify the mistake u/s 154 or to make a reassessment u/s 147. While, it is correct, as held in EID Parry 216 ITR 489 (Mad), that the AO has to choose between the two and cannot initiate both proceedings at the same time, the principle of constructive res judicata made applicable by the Madras High Court that the AO having initiated rectification proceedings u/s 154 should stick to the same only and cannot drop that and proceed u/s 147 is not acceptable. The fact that the AO invoked s. 154 and dropped it does not affect the validity of re-assessment u/s 147

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DATE: (Date of pronouncement)
DATE: March 8, 2011 (Date of publication)
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CITATION:

Circular dated 15.5.2008 laying down monetary limit controls the filing of the appeals and not their hearing. Appeals filed as per applicable limit at the time of filing cannot be governed by circular applicable at the time of hearing. The object of the Circular u/s 268A is only to govern monetary limit for filing of the appeals. There is no scope for reading the circular as being applicable to pending appeals

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DATE: (Date of pronouncement)
DATE: March 5, 2011 (Date of publication)
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The Proviso to s. 14A which gives protection to the assessee with respect to AY 2001-02 & earlier years was inserted w.e.f. 11.5.2001. As the order of the CIT u/s 263 was passed earlier on 29.12.99, the protection under the Proviso is not available

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DATE: (Date of pronouncement)
DATE: March 3, 2011 (Date of publication)
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CITATION:

When a payment is made by cheque, then the ‘date of payment‘ is the ‘date of the cheque‘ even though the cheque may be encashed subsequently. As the cheque was issued within 6 months of the transfer, s. 54EC relief was available even though the cheque was encashed, and bonds were allotted, later

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DATE: (Date of pronouncement)
DATE: March 2, 2011 (Date of publication)
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U/s 144C(1) the AO has to pass a draft assessment order in the case of an “eligible assessee” which is defined in s. 144C(15)(i) to mean any person in whose case the variation from returned income arises as a consequence of the order of the TPO u/s 92CA(3). As no transfer pricing adjustments had been made by te TPO, the assessee was not an “eligible assessee” and the AO had no jurisdiction to pass the draft assessment order

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DATE: (Date of pronouncement)
DATE: March 2, 2011 (Date of publication)
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CITATION:

The assessees’ contention that export profit has to be computed with reference to the P&L A/c prepared under the Companies Act is not acceptable because there is no such provision in s.80HHC to determine export profit with reference to P&L A/c. Clause (iv) of s. 115JB (2) provides that the “amount of profit eligible for deduction u/s 80HHC as computed u/s 80HHC (3)” has to be deducted in computing the book profits. Accordingly, only the deduction u/s 80HHC as computed under the normal provisions is allowable

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