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Attachment is decision of Pune ITAT on 80IA(4) in BT Patil matter. Most welcome relief.


http://www.mediafire.com/view/?0ogzyeeqd4m00n6

I could not paste the text as it was giving the formatting issue.

Till majority son was not the owner of the property but the grand-father has the exclusive control over the property, therefore we can show it as grandfather gift the property to the grandson. and we all know that gift from the relatives will not cover under the ambit of section 56

1. How can it be proved that grandfather has the exclusive control over property even after transferring the same in favour of trust? What is basis?

2. How can it be proved that it is a gift from Grandfather to Grandson when actually it is different?

3. Property records and Security ownership certificate is in name of Trust

but can it override literal interpretation? for section 56 it is still receipt of property for no consideration. I think beneficiary wasn't owner till majority.

Facts of Case:
1. A grandfather formed a private discretionary trust to make his grandson its sole beneficiary upon 5th birthday of grandson. He gifts assets comprising a building, some bonds to trust. Trust has its own PAN and assessed as an AOP. (No assessment order passed by AO)

2. All these assets are to be transferred to his grandson upon his attaining 18 years of age.(Market value as on creation of trust Rs. 50 Lacs)

3. Till then father of grandson, i.e. son of founder of trust is trustee. He cannot dispose any property. He can only ensure smooth transfer of assets.

4. As on today, founder grandfather is no more and grandson has attained 18 years of age and all the assets are going to be transferred in name of grandson. (Current market Value 18 Crores)

Issue :

Whether receipt assets from such trust will be taxable u/s 56 in light of express provisions in hands of Grandson???

http://mediafire.com/?xsvqlnydgm1mc5x

Link is attached. Copy paste was not possible. I don't have DTR citation but found parallel citation

Can you pls post the details of order or copy of order. As this issue is covered against the assessee by larger bench order, it will be interesting. In addition to this, identical matter is pending before Hon. Bombay High Court; the hearing of which is scheduled on 18th Oct. 2010


http://itatonline.org/archives/index.php/b-t-patil-sons-vs-acit-itat-mumbai-larger-bench

Copy of decision has been made available at following link :

http://www.mediafire.com/?atnoyck4hzj5jim

Text of decision being too much could not be pasted. So link to download the same is as under:
http://www.mediafire.com/file/yn2dekgml5m/BOM HC on settlement commission.pdf

http://www.mediafire.com/file/gjn2umxz0nn/Spl bench on 115JB_rain_commodities.pdf

Attachment is special bench decision on 115JB. Text being to much could not be copied and pasted here.

In the matter of CIT v Apar Industries Ltd (ITA.No. 1036 of 2009) Hon Bombay High Court has held as under :

(i) MAT credit under Section 115JAA is credit for tax paid under Section 115JA;

(ii) The sum represented by the available MAT credit would fall within the expression "tax ... already paid under any provision of this Act" in Section 140A(1);

(iii) The expression "such tax" in Section 140A(1) would mean the tax payable on the return, minus, the available MAT credit which represents the tax already paid under a provision (section 115JA) of the Act;

(iv) The expression tax paid "otherwise" in Section 234B(2) would take within its sweep any tax paid under a provision of the Act including the MAT credit which is available under Section 115JAA;

(v) The amendment to Explanation (1) of Section 234B by the Finance Act of 2006 is clarificatory;

(vi) The tax credit which is allowed to the assessee and obtained in a particular year is a part of the Minimum Alternative Tax of that year. It represents tax paid by the assessee to the exchequer. In the year in which such tax credit is sought
to be set off in terms of Section 115JA, the tax credit is available on the first day of that year and hence the tax deducted to the extent it can be set off represents tax already paid and available as credit at the beginning of the year;

(vii) The assessee cannot, therefore, be charged interest on something which he has already paid;

(viii) The provisions of Section 234A are compensatory. Since the tax due to the extent of available MAT credit stands
paid, the levy of interest under Section 234A thereon would not arise

Judgment of the Hon Delhi High Court in Commissioner of Income Tax V/s. Jindal Exports Limited 314 ITR 137 has been followed

and hence

interest u/s. 244A of the Income Tax Act, 1961 was allowable on the refundable taxes arrived after giving credit of brought forward MAT from the gross demand

Copy of judgment is as under:

http://www.mediafire.com/file/mmht1qeyzdw/BOM HC on MAT credit for 234A B C.pdf

Hon Apex Court has held as under :

    *  Once section 249(4)(a) is treated as a mandatory condition for filing an appeal before CIT (Appeals) and once that condition stood satisfied at the time of his filing an appeal to CIT (Appeals), then, there was no necessity for the assessee to once again pay the admitted tax due as a condition precedent to his filing the appeal before the Appellate Tribunal under section 253(1)(b)

in CIT v. Pawan Kumar Laddha [Civil Appeal Nos. 8914-8922 of 2003] [2010]

Copy of judgment is as under:

http://www.mediafire.com/file/ondtonflzto/Pramod_Kumar_Ladda_SC_Tax on returned income need not be paid.pdf

There has been long standing debate on the levy of the interest under section 234D for the assessment year prior to AY 2004-05.

Special bench of Hon. ITAT, in the matter of M/s Ekta Promoters Pvt Ltd 113 ITD 719 has held as under:


  interest under section 234D is chargeable from assessment year 2004-05 and it could not be charged for earlier years even though regular assessments for these years are framed after 1-6-2003 or the refund was granted for those years after the said date.

This decision has been followed consistently.



However, Hon Kerala High Court in the matter of  THE COMMISSIONER OF INCOME TAX,

Vs


M/S KERALA CHEMICALS & PROTEINS LTD., ITA.No. 1692 of 2009

has held as under:

However, we vacate the finding of the Tribunal that Section 234D is applicable only from the assessment year 2004-05 onwards. The view taken by the assessing officer that Section applies from 1.6.2003 is the correct position


Copy of all the judgments are available at following links:

http://www.mediafire.com/file/gmzmzotyzrl/234D by Kerala High Court.pdf

http://www.mediafire.com/file/mgwm0jqck22/ekta promoters.xps

http://www.mediafire.com/file/0tiym2dcv2n/MUM ITAT on 234D SBI capital market.pdf

Hon.Bombay High Court has held as under:

1.The question as to whether a reimbursement for expenses would form part of the taxable income is not res integra insofar as this Court is concerned.


2. In CIT v. Siemens Aktiongesellschaft [2009] 177 Taxman 81 (Bom.),  a Division Bench of this Court held that sharing of expenses of the research utilised by the subsidiaries as well as the head office organization would not be income which would be assessable to tax.

3. Appeal of Revenue is dismissed

Copy of judgment is available at following link:

http://www.mediafire.com/file/3n4ymmoz2km/BOM%20HC%20ON%20REIMBURSEMENT_KRUPP.pdf

Hon. Mum Tribunal has held as under :

(i) S. 153A does not authorize the making of a de novo assessment. While under the 1st Proviso, the AO is empowered to frame assessment for six years, under the 2nd Proviso, only the assessments which are pending on the date of  initiation of search abate. The effect is that complete assessments do not abate. There can be two assessments for the same assessment year. Assessments which are not pending before the AO on the date of search but are pending before an appellate authority will survive.  


(ii)  An assessment can be said to be "pending" only if the AO is statutorily required to do something further. If a s.143(2) notice has been issued, the assessment is pending. However, the assessment in respect of a return processed u/s 143(1) is not "pending" because the AO is not required to do anything further about such a return.  


(iii) The power given by the Proviso to "assess" income for six assessment years has to be confined to the undisclosed income unearthed during search and cannot include items which are disclosed in the original assessment proceedings.  (iv) On facts, s the returns had been processed u/s 143(1), the assessments were not "pending" and as no material was found during the search, the additions could not be sustained.    

We delete all the additions made and allow the appeals of the assessee.

In the result, all the appeals of the assessee are allowed.

Copy of judgement is too long to be put here link is provided as under:

http://www.mediafire.com/file/zmannmnmnz2/MUM%20ITAT%20ON%20153A.pdf

One more decision in the matter of M/s ABG Heavy Industries Ltd by Hon Bombay High Court has given much awaited and coveted relief to assessees developing infrastructure facilities. Text of judgment is too long to be uploaded here. Link for the same is as under:

http://rapidshare.com/files/367007204/ABG_HEAVY_INDUSTRIES_BOMABY_HC.pdf.html