This Digest of case laws is prepared by KSA Legal and AIFTP from judgements reported in BCAJ, CTR, DTR, ITD, ITR, ITR (Trib), Chamber's Journal, SOT, Taxman, TTJ, BCAJ, ACAJ, www.itatonline.org and other journals
Click here to download the pdf versions of the Digest of case laws
S. 11 : Property held for charitable purposes – Carry forward of deficit – Excess expenditure incurred by trust in earlier years – Set off against income of subsequent years – Permissible – Appeal of Revenue dismissed. [S. 11(1)(a), 11(1)(d), 260A .]
CIT (E) v. Tata Education and Development Trust (Bom)(HC) www.itatonline.org .
S. 270A : Penalty for under -reporting and misreporting of income – Transfer Pricing adjustment – Advanced Pricing Agreement – No order passed u/s. 92CD(3) on modified return – Virtual hearing mandatory under Faceless Penalty Scheme – Penalty order quashed and matter remanded to AO to grant virtual hearing and pass fresh speaking order within 12 weeks. [S. 92CD(3) , 143(3), 144C(3), Art. 226 ]
Man Truck & Bus India Pvt Ltd v. The Assessment Unit, ITD (Bom)(HC) , www.itatonline.org
S. 143(3) Assessment – Disallowance of expenditure – Business income – Entries in the books of account is not conclusive- Alternative remedy – No deduction of expenses claimed either by assessee or unit holders – Addition made by AO wholly without jurisdiction – Writ petition maintainable – Assessment order quashed. [S. 10(23FBA), 28(i), 37(1), 115UB, 144B , 246A , Art. 226]
Kedaara Capital Fund II LLP v. NFAC (Bom)(HC) www.itatonline .org
S. 254(2) : Appellate Tribunal – Rectification of mistake apparent from the record – PF/ESI contribution – Subsequent decision of Supreme Court – Cannot be ground for rectification – Tribunal erred in recalling its order on the basis of subsequent ruling – Writ petition allowed. [S. 254(1), 143(1)(a), 36(1)(va), 43B, 260A, Art. 226, CPC O.47 R.1]
Vaibhav Maruti Dombale v. Assistant Registrar, ITAT (Bom)(HC) www.itatonline.org
S. 73 : Loss in share trading – Speculation loss – Set-off – Not allowable against profit from F&O transactions – Arbitrage operations – Explanation to S.73 operates independently of S.43(5) – Speculative loss cannot be adjusted against F&O business income.[ S.28(i) , 43(5)]
DCIT v. JM Financial Services Ltd ( TM ) ( Mum)( Trib) www.itatonline.org
S. 143(3): Assessment – Appeal pending before CIT(A)- Writ – Alternate remedy – Writ petition not maintainable- Extraordinary jurisdiction – Not to be invoked when alternate statutory remedy is available- The Court directed CIT(A) to dispose of the appeals (both against assessment and penalty orders) within eight weeks. [ S. 144B 250 , Art. 226 ]
Anil Ramchandran Pillai v. NFAC (Bom)(HC) www.itatonline.org
Central Goods and Service tax Act , 2017 .
S. 73 : Demands and recovery – Determination of tax – Joint Development Agreement – Real estate developer – Time of supply of service – Time of supply under Joint development agreement is governed by Notification 04/2018, i.e., on conveyance/allotment, not agreement date,-Any deposit obtained without authority of law is refundable with interest, regardless of whether made under protest or otherwise. [ S. 13(2(b), 74 , Art . 226 ]
Provident Housing Ltd. v. UOI ( Goa Bench ) (Bom )(HC)
Central Goods and Services Tax Act, 2017 .
S. 54 : Refund of tax – Input tax credit – Inverted duty structure – Notification No. 09/2022 dated 13-07-2022 applicable prospectively – Refund cannot be denied for period up to 18-07-2022 – Circular restricting refund claims only if filed before 18-07-2022 held arbitrary and violative of Article 14 – Refund application filed within limitation period of two years cannot be rejected. [ S. 5(3), Art . 14 , 226 ]
Shree Arihant Oil and General Mills v. UOI (Raj)(HC) www.itatonline .org
S. 151 : Reassessment – Sanction for issue of notice – Notice issued under section 148 with sanction of PCIT instead of JCIT – Survey – Invalid sanction – Assessment held to be null and void. [ S. 133A , 143(3),151(2), 147 , 148]
Sunidhi Securities & Finance Limited v. DCIT, (Mum)(Trib) www.itatonline.org
S. 56 : Income from other sources – Immovable property – Purchase consideration – DVO valuation – Difference of 7% within 10% safe harbour – Amendment by Finance Act, 2020 curative and retrospective – Addition deleted.[ S. 50C , 56(2)(x)(b)(B) ]
Ramesh Dnyandeo Dhuri v. ITO (SMC)(Mum)(Trib), www.itatonline .org