Honourable Member Shri M. Balganesh joined as an Accountant Member of the ITAT on July 15, 2015, and was posted at Kolkata Bench. On December 04, 2018, the Honourable Member was transferred to Mumbai. From April 01, 2023, the Honourable Member will be posted in Delhi.
The farewell function was held at Hotel West End Mumbai. Shri Porus Kaka Senior Advocate, President of the ITAT Bar Association appreciated the good qualities of the Honourable Accountant Member.
On behalf of the members of the ITAT Bar Association Mumbai, Mr. K. Gopal Advocate, Vice-President of the ITAT Bar Association Mumbai presented the memento to the Honourable Accountant Member as a mark of love and affection.
Speaking on this occasion Honourable Shri B.R. Baskaran Senior Accountant Member appreciated the gesture of the ITAT Bar Association Mumbai in organizing the farewell function, Honourable Member stated that functions like this will help the institution by improving the coordination between Bar and Bench.
Honourable Accountant Member Shri M.Balganesh thanked the members of the ITAT Bar Association for their good wishes and cooperation in discharging his duties and expressed his gratitude.
Shri Nitesh Joshi Advocate, Vice-President proposed a vote of thanks on behalf of the ITAT Bar Association Mumbai.
On this occasion Past Presidents of the ITAT Bar Association Mumbai viz. Dr. K. Shivaram, Senior Advocate, Shri Subash S. Shetty, Advocate, Mrs. Arati Vissanji, Advocate, Shri Hiro Rai Advocate and Shri Vipul Joshi, Advocate, were present.
Shri Firoze B. Anadyarujina, Senior Advocate, Shri Percy Pardiwala, Senior Advocate and Shri. Jehangir Mistry Senior Advocate were also present.
A large number of professionals who appear regularly before the ITAT and young professionals also attended the function and wished the Honourable Member all the best in his future tenure as an Accountant Member of the ITAT.
The Honourable Member has authored many landmark cases and some of the matters are approved by the High Court. A few important case laws are;
- 9(1)(vii):Income deemed to accrue or arise in India – Fees for technical services – DTAA – India -UK .
Payment received by assessee a UK-based company for providing consulting engineering services to an Indian entity would not be considered as fees for technical services under article 13 of India-UK DTAA as a supply of services was contract specific and was not made available to Indian entity to be used in any other project in future
Buro Happold Ltd. v. DCIT  145 taxmann.com 450 (Mumbai – Trib.)
- 23 : Income from house property – Annual value – Addition made as deemed notional rent in respect of unsold flats held as stock in trade was held to be not justified. Provisions of S. 23(5) are prospective.
- 32 : Depreciation – Additional depreciation – Generation of electricity amounted to manufacturing or production of an article or thing; the assessee who had set up hydel power and thermal power plants would be entitled to additional depreciation u/s.32.
Damodar Valley Corporation v. Dy. CIT (2016) 160 ITD 78 (Kol ( Trib.)
Affirmed by the Calcutta High Court in the case of Pr. CIT v. Damodar Valley Corporation  285 Taxman 236 (Cal)(HC)
56 : Income from other sources – DCF method – The directors of assessee-company who were also directors in a foreign company, transferred shares of said company to the assessee-company at same rate at which they had purchased those shares. The entire exercise of change in ownership was undertaken only to comply with RBI/FEMA Regulations. Hence no intention to make any gains out of said transaction, valuation of shares made based on DCF method which was justified. No addition can be made relying upon the provisions of rules 11UA (a).
Keva Industries (P.) Ltd. v. ITO  112 taxmann.com 137 (Mum)(Trib.)
- 68 : Cash credits – Demonetization – Entire cash deposits made by the assessee during the demonetization period in Specified Bank Notes stood properly explained by the availability of cash balance in its books, as well as furnished entire details of cash received from customers containing name and address of customers, PAN, and invoice amount. No addition thereon could be made under section 68.
Jet Freight Logistics Ltd. v. CIT (NFAC)  146 taxmann.com 349 (Mum (Trib.)
- 69B : Amounts of investments not fully disclosed in books of account. Substitution of ‘full value of the consideration received’ with ‘stamp value’ in terms of section 50C, is applicable in hands of the seller of a property who has to compute capital gains u/s. 48 pursuant to the transfer of a capital asset in nature of land or building or both; the same cannot be extended in case of the purchaser estimates undisclosed investment.
Dy. CIT v. Global Mercantiles (P.) Ltd.  157 ITD 924 (Kol)(Trib.)
- 80IA: Industrial undertakings – Infrastructure development- The assessee was awarded a contract to construct a Road by NHAI and it was to procure raw materials, make arrangements for power, water, plant machinery, etc., and conduct all other activities needed for construction. The assessee would be a developer and not a mere works contractor, eligible for deduction under section 80-IA.
ACIT v. Ho Hup Simplex JV  92 taxmann.com 106 (Kol )( Trib.)
- 80P : Co-operative societies – The assessee co-operative society collected deposits only from its members and had no transaction with non-members, assessee could not be considered as a co-operative bank, merely because during penalty proceedings under section 271D former CA of assessee mistakenly submitted that assessee was a co-operative bank, thus, the assessee was entitled for deduction under section 80P(2)(a)(i).
Thane Zilla Madhyamik Shikshak Sangh Sahakari Parpedhi Maryadit v. ACIT  187 ITD 201 (Mum (Trib.)
- 92C: Transfer pricing – Computation of arm’s length price (Methods for determination of – TNMM) – Where TPO observed that assessee had earned processing fees for issuing guarantees on behalf of its AEs and rejected TNMM adopted by assessee and proceeded to benchmark guarantee transaction using external CUP method, since data under CUP method was not available and data of margins under TNMM was readily available, it would be appropriate to apply TNMM as Most Appropriate Method (MAM)
Australia and New Zealand Banking Group Ltd. v. DCIT  140 taxmann.com 574 (Mum) ( Trib.)
- 115JB : Book profit – Section is applicable only to entities registered and recognized to be companies under the Companies Act, 1956. In the case of a corporation established under the Damodar Valley Corporation Act, 1948, provisions of s.115JB would not apply.
Damodar Valley Corporation v. Addl. CIT  157 ITD 415 (Kol-(Trib.)
Affirmed by the Calcutta High Court in the case of PCIT v. Damodar Valley Corporation  137 taxmann.com 338 (Cal)(HC)
- 133A :Power of survey – Settlement Commission – The order passed by the Assessing Officer only on the basis of the rejection order of the Settlement commission was not valid. The Assessing Officer is directed to pass the order in accordance with law after considering the submissions of the Assessee.
- 148 : Reassessment –Notice – Recorded reasons stating that the return was not filed, on facts the assessee had filed the return and informed to the Assessing Officer in response to the notice. Reassessment was quashed on the ground that the recorded reason was based on incorrect facts hence the reassessment is bad in law.
- 253 : Appellate Tribunal -Appeal -Consolidated order – When there were two different search and seizure actions conducted by the Department and the case of the assessee reopened twice for each year. However, while deciding the issue CIT (A) passed a combined order, allowing all the appeals filed before it. Before the Tribunal, Department filed one appeal for each assessment year. Tribunal held that each assessment order is separate and that separate appeals must be filed for each appeal. The appeal of the department was dismissed as defective.
- 271AAA: Penalty – Search initiated on or after 1st June, 2007. Consequent to the search proceeding, Assessee offered an additional income voluntarily in a disclosure petition under section 132(4) followed by the filing of a return under section 153A, the assessee was entitled to immunity from levy of penalty under section 271AAA.
Dy. CIT v. Salasar Stock Broking Ltd. (2016) 47 ITR 616 (Kol (Trib.)
Shri S.E. Dastur, Senior Advocate and Past President of the ITAT Bar Association wrote an article on the subject of “My Ideal Tribunal Member”
We hope this article will be an inspiration to all the Honourable Members of the ITAT to be an ideal Tribunal Member
For ITAT Bar Association
Shri Ajay R. Singh & Shri Paras S. Savla
March 31, 2023