Sunday, December 12, 2010

ITR (Trib):- HIGHLIGHTS Volume 6 Part 5 dt 29.11.2010

ITR'S TRIBUNAL TAX REPORTS (ITR (Trib)) HIGHLIGHTS

ISSUE DATED 29-11-2010

Volume 6 Part 5

APPELLATE TRIBUNAL ORDERS

Ø  Where claim of provision for doubtful debts disclosed in account, discharge of burden by assessee u/s. 271(1)(c), Expln. 1, levy of penalty not justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

 

Ø  Claim of set-off of long-term capital loss against business income of current year after applying indexed cost of acquisition, not permissible u/s. 71, penalty justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

 

Ø   Disclosure of rental income after enquiry by AO under compulsion, penalty justified u/s. 271(1)(c) : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

 

Ø   Adjustment to opening WDV of assets result of WDV finally worked out in earlier years, deletion of penalty justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

Ø   Management and selling commission paid to non-resident lead managers by Indian company in connection with issue of GDRs, not taxable : Dy. DIT v. Tata Iron and Steel Co. Ltd. (Mumbai) p. 463

Ø   Where deduction allowed on entire indexed cost of acquisition of land with trees, part of sale proceeds not agricultural income : Abhinav Ajmera v. Asst. CIT (Delhi) p. 482

Ø   Derivative transactions carried out in previous year relevant to assessment year 2006-07 ; business income : Smt. Seema Jain v. Asst. CIT (Delhi) p. 488

Ø   Admission of cash payments exceeding specified limit under compulsion during search, retracted by assessee, addition u/s. 40A(3) reduced : Sona Bazaar v. Asst. CIT (Bangalore) p. 492

Ø   Exclusion of reimbursement of advertisement expenditure for determining profit level indicator not proper : Panasonic India P. Ltd. v. ITO (Delhi) p. 502

Ø  Data for comparison to be data relating to year in which international transaction entered into : Panasonic India P. Ltd. v. ITO (Delhi) p. 502



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Thursday, December 9, 2010

ITR VOL 329 PART 4

INCOME TAX REPORTS (ITR)

Volume 329 : Part 3 (Issue dated 13-12-2010)

SUBJECT INDEX TO CASES REPORTED IN THIS PART

HIGH COURTS

Advance tax --Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax--Income-tax Act, 1961, ss. 115J, 115JA, 207, 208, 234B, 234C-- Binani Industries Ltd. v. CIT (Cal) . . . 323

Appeal to High Court --Powers of High Court--Finding of fact cannot normally be set aside--Income-tax Act, 1961, s. 260A-- CIT v. Forech India Ltd. (Delhi) . . . 336

----Powers of High Court--Point not raised before lower authorities cannot be considered by High Court--Income-tax Act, 1961, s. 260A-- CIT v. Chand Ratan Bagri (Delhi) . . . 356

Business expenditure --Capital or revenue expenditure--Lease rent paid to State Industrial Development Corporation for use of land for ninety-nine years--Registration of lease deed not relevant--Land not acquired by assessee--Payment made to carry on business--Lease rent deductible--Income-tax Act, 1961, s. 37-- Deputy CIT v. Sun Pharmaceuticals Ind. Ltd. (Guj) . . . 479

Capital gains --Computation of capital gains--Gains on transfer of intellectual property rights--Tribunal not justified in blindly applying B. C. Srinivasa Setty's case and concluding capital gains could not be computed--Matter remanded--Income-tax Act, 1961, ss. 45, 48-- CIT v. P. R. Seshadri (Karn) . . . 377

----Exemption--Investment of net consideration in residential house--Fact that land was owned by assessee's spouse and she had used construction for mortgage purposes--Not relevant--Finding that house had been constructed--Assessee entitled to benefit of section 54F--Income-tax Act, 1961, s. 54F-- CIT v. P. R. Seshadri (Karn) . . . 377

Capital or revenue expenditure --Fees paid to foreign company for designs and drawings and expenses on foreign technicians for training assessee's personnel--Expenditure for facilitating process of manufacture--Expenses incurred are revenue expenditure--Income-tax Act, 1961-- CIT v. Munjal Showa Ltd. (Delhi) . . . 449

Deduction of tax at source --Certificate for non-deduction--Assesssee claiming income was exempt under section 11--Amendment of section 2(15) w.e.f. 1-4-2009 not challenged--Union of India not impleaded as a party--Effect of amendment of section 2(15) could not be considered--Refusal to issue certificate for non-deduction of tax at source--Justified--Income-tax Act, 1961, ss. 2(15), 11, 197-- Infoparks Kerala v. Deputy CIT (Ker) . . . 404

Depreciation --Plant--Poultry sheds--Building specifically designed with a view to protecting birds from disease--Building designed proper and scientific feeding arrangement, proper water system, proper arrangement for collection of manure and droppings, proper arrangement for medication and vaccination--Building specifically designed to further the cause of manufacture or production--Is plant--Entitled to depreciation and investment allowance--Income-tax Act, 1961, s. 43(3)-- CIT v. Shivalik Hatcheries P. Ltd. (HP) . . . 432

----Poultry sheds, fencing, water and water tank--Entitled to extra shift allowance--Income-tax Act, 1961-- CIT v. Shivalik Hatcheries P. Ltd. (HP) . . . 432

Exemptions --Educational institution--Registered society running schools--Society granted exemption under section 10(23C) up to assessment year 2001-02--Law applicable--Effect of amendment of section 10(23C)--Condition regarding application of funds--Applicability of condition--Exemption already being granted could not be refused for assessment years 2002-03 to 2004-05--Income-tax Act, 1961, s. 10(23C)(vi)-- Digember Jain Society for Child Welfare v. Director General of Income-tax (Exemptions) (Delhi) . . . 459

Export --Special deduction under section 80HHC--Computation of export turnover--Freight and insurance not includible in export turnover--Income-tax Act, 1961, s. 80HHC-- CIT v. King Metal Works (Bom) . . . 426

----Special deduction under section 80HHC--Computation of special deduction--Meaning of profits of business--Entire sale consideration on transfer of DEPB credit assessable under section 28(iiid)--Income-tax Act, 1961, ss. 28, 80HHC-- CIT v. King Metal Works (Bom) . . . 426

Income from undisclosed sources --Additions to income on basis of admission by assessee and consideration of material on record--Deletion of addition without adequate consideration--Not valid--Matter remanded--Income-tax Act, 1961-- CIT v. Swastik India (Karn) . . . 473

Industrial undertaking --Special deduction under section 80-IA--Condition precedent--Manufacture of article--Meaning of "manufacture"--Conversion of limestone into limestone powder constitutes manufacture--Assessee entitled to special deduction under section 80-IA--Income-tax Act, 1961, s. 80-IA-- CIT v. Janak Raj Bansal (HP) . . . 417

----Special deduction under section 80-IB--Condition precedent--Manufacture of article--Meaning of manufacture--Process of making transformer core from cold rolled coils amounts to "manufacture"--Assessee entitled to special deduction under section 80-IB--Income-tax Act, 1961, s. 80-IB-- CIT v. Alfa Lamination (Guj) . . . 348

Industrial undertaking in backward area --Special deduction--Finding that industrial undertaking was situated in district notified as a backward area--Assessee entitled to special deduction under section 80HH--Notification No. S. O. 165(E), dated December 19, 1986--Income-tax Act, 1961, s. 80HH-- CIT v. Guffic Chem P. Ltd .(Karn) . . . 470

Interpretation of taxing statutes --Literal interpretation-- CIT v. King Metal Works (Bom) . . . 426

Loss --Short-term capital loss--Forfeiture of amount paid towards convertible warrants--Loss deductible as short-term capital loss--Income-tax Act, 1961-- CIT v. Chand Ratan Bagri (Delhi) . . . 356

Non-resident --Income deemed to accrue or arise in India--Royalty--Agreement between Indian company and foreign company for supply of plant know-how and product know-how--Agreement concluded and data delivered abroad--Purchase of drawings and documents abroad--Transaction was one of sale--No income could be deemed to accrue or arise to non-resident--Income-tax Act, 1961, s. 9(1)(vi)-- CIT v. Maggronic Devices P. Ltd. (HP) . . . 442

Penalty --Concealment of income--Search and seizure--Additional income offered by assessee and assessed on estimate--Levy of penalty not permissible without detailed discussion of documents and explanation for offer of additional income--Income-tax Act, 1961, s. 271(1)(c)-- CIT v. Suresh Chand Bansal (Cal) . . . 330

Precedent --Effect of decision of Supreme Court in Lucky Minmat v. CIT [2000] 245 ITR 830-- CIT v. Janak Raj Bansal (HP) . . . 417

----Effect of decisions of Supreme Court in American Hotel and Lodging Association Educational Institute v. CBDT [2008] 301 ITR 86 and Aditanar Educational Institution v. Additional CIT [1997] 224 ITR 310-- Digember Jain Society for Child Welfare v. Director General of Income-tax (Exemptions) (Delhi) . . . 459

----Ratio of case when applicable-- CIT v. P. R. Seshadri (Karn) . . . 377

----Supreme Court--One-line order of Supreme Court dismissing appeal after it is admitted and heard--Binding--Constitution of India, arts. 136, 141-- Binani Industries Ltd. v. CIT (Cal) . . . 323

Reassessment --Limitation--Law applicable--Effect of amendment of section 143 w.e.f. 1-4-1989--Return filed on 24-1-2003 in response to notice under section 148--No notice issued under section 143(2) but assessee having opportunity to be heard--Order of reassessment passed on 26-3-2004--Barred by limitation--Income-tax Act, 1961, ss. 143, 148--Circular No. 549 dated 31-10-1989-- CIT v. Deep Baruah (Gauhati) . . . 362

----Notice--Notice beyond four years--Condition precedent--Failure to disclose material facts necessary for assessment--Facts relating to sale of shares disclosed and assessment after enquiry--Notice after four years on ground that transaction not genuine--Notice not valid--Income-tax Act, 1961, ss. 147, 148-- Smt. Raj Rani Gulati v. Union of India (All) . . . 370

----Notice--Oral direction not to proceed with enquiry--Enquiry without affording an opportunity to assessee--Assessment order set aside--Matter remanded--Income-tax Act, 1961, ss. 147, 148-- Vira Properties (Madras) Pvt. Ltd. v. Asst. CIT (Mad) . . . 389

----Writ--Writ court cannot consider facts--Return submitted by assessee--Survey showing undisclosed income--Notice of reassessment was valid--Income-tax Act, 1961, ss. 147, 148--Constitution of India, art. 226-- Dr. Lata Chouhan v. ITO (MP) . . . 400

Rectification of mistake --Mistake apparent from record--Search and seizure--Refund--Interest on refund--Assessee entitled to interest--Assessee to seek rectification --Income-tax Act, 1961, ss. 132, 154-- CIT v. Sri Krishna Saraf (Mad) . . . 342

Search and seizure --Addition on account of documents found at premises of a relative of assessee--Investment in purchase of car and interest--Tribunal remanding the matter to Assessing Officer--Findings of fact--Income-tax Act, 1961, s. 158BFA(1)-- CIT v. Harjit Singh (P&H) . . . 422

----Penalty--No concealment of income--No failure to furnish inaccurate particulars of income--Assessing authority not justified in levying penalty--Income-tax Act, 1961, s. 271(1)(c)-- CIT v. Sri Krishna Saraf (Mad) . . . 342

----Search at premises of third person--Seizure and recovery from safe deposits belonging to assessee--Issue of notice under section 142(1) after search revealing search having nexus with assessee--Assessment under section 143(3)--Assessee entitled to seek necessary relief under section 132B(4)--Income-tax Act, 1961, ss. 132, 132B(4), 143-- CIT v. Sri Krishna Saraf (Mad) . . . 342

Undisclosed stock --Books of account incomplete at time of survey--Finding of Commissioner (Appeals) and Tribunal that stock related to import purchases verifiable from customs records--Accounts reconciled later--Finding of fact--Income-tax Act, 1961-- CIT v. Forech India Ltd. (Delhi) . . . 336

Unexplained investment --Assessee purchasing demand drafts and remitting to a party--No proof that sum represented bad debt or business loss--Addition as unexplained investment--Justified--Income-tax Act, 1961, s. 69-- Satish Kumar v. CIT (P&H) . . . 396

Wealth-tax --Company--Exemption--Asset used for business--Land used for internal roads and playground--Not entitled to exemption--Wealth-tax Act, 1957--Finance Act, 1983, s. 40(3)(vi)-- Motwane Manufacturing Co. Pvt. Ltd . v. CWT (Bom) . . . 413

Words and phrases --Meaning of "manufacture"-- CIT v. Alfa Lamination (Guj) . . . 348

----Meaning of "manufacture"-- CIT v. Janak Raj Bansal (HP) . . . 417

 

SECTIONWISE INDEX TO CASES REPORTED IN THIS PART

Constitution of India :

Art. 136 --Precedent--Supreme Court--One-line order of Supreme Court dismissing appeal after it is admitted and heard--Binding-- Binani Industries Ltd. v. CIT (Cal) . . . 323

Art. 141 --Precedent--Supreme Court--One-line order of Supreme Court dismissing appeal after it is admitted and heard--Binding-- Binani Industries Ltd. v. CIT (Cal) . . . 323

Finance Act, 1983 :

S. 40(3)(vi) --Wealth-tax--Company--Exemption--Asset used for business--Land used for internal roads and playground--Not entitled to exemption-- Motwane Manufacturing Co. Pvt. Ltd . v. CWT (Bom) . . . 413

Income-tax Act, 1961 :

S. 2(15) --Deduction of tax at source--Certificate for non-deduction--Assesssee claiming income was exempt under section 11--Amendment of section 2(15) w.e.f. 1-4-2009 not challenged--Union of India not impleaded as a party--Effect of amendment of section 2(15) could not be considered--Refusal to issue certificate for non-deduction of tax at source--Justified-- Infoparks Kerala v. Deputy CIT (Ker) . . . 404

S. 9(1)(vi) --Non-resident--Income deemed to accrue or arise in India--Royalty--Agreement between Indian company and foreign company for supply of plant know-how and product know-how--Agreement concluded and data delivered abroad--Purchase of drawings and documents abroad--Transaction was one of sale--No income could be deemed to accrue or arise to non-resident-- CIT v. Maggronic Devices P. Ltd. (HP) . . . 442

S. 10(23C)(vi) --Exemptions--Educational institution--Registered society running schools--Society granted exemption under section 10(23C) up to assessment year 2001-02--Law applicable--Effect of amendment of section 10(23C)--Condition regarding application of funds--Applicability of condition--Exemption already being granted could not be refused for assessment years 2002-03 to 2004-05-- Digember Jain Society for Child Welfare v. Director General of Income-tax (Exemptions) (Delhi) . . . 459

S. 11 --Deduction of tax at source--Certificate for non-deduction--Assesssee claiming income was exempt under section 11--Amendment of section 2(15) w.e.f. 1-4-2009 not challenged--Union of India not impleaded as a party--Effect of amendment of section 2(15) could not be considered--Refusal to issue certificate for non-deduction of tax at source--Justified-- Infoparks Kerala v. Deputy CIT (Ker) . . . 404

S. 28 --Export--Special deduction under section 80HHC--Computation of special deduction--Meaning of profits of business--Entire sale consideration on transfer of DEPB credit assessable under section 28(iiid)-- CIT v. King Metal Works (Bom) . . . 426

S. 37 --Business expenditure--Capital or revenue expenditure--Lease rent paid to State Industrial Development Corporation for use of land for ninety nine years--Registration of lease deed not relevant--Land not acquired by assessee--Payment made to carry on business--Lease rent deductible-- Deputy CIT v. Sun Pharmaceuticals Ind. Ltd. (Guj) . . . 479

S. 43(3) --Depreciation--Plant--Poultry sheds--Building specifically designed with a view to protecting birds from disease--Building designed proper and scientific feeding arrangement, proper water system, proper arrangement for collection of manure and droppings, proper arrangement for medication and vaccination--Building specifically designed to further the cause of manufacture or production--Is plant--Entitled to depreciation and investment allowance-- CIT v. Shivalik Hatcheries P. Ltd. (HP) . . . 432

S. 45 --Capital gains--Computation of capital gains--Gains on transfer of intellectual property rights--Tribunal not justified in blindly applying B. C. Srinivasa Setty's case and concluding capital gains could not be computed--Matter remanded-- CIT v. P. R. Seshadri (Karn) . . . 377

S. 48 --Capital gains--Computation of capital gains--Gains on transfer of intellectual property rights--Tribunal not justified in blindly applying B. C. Srinivasa Setty's case and concluding capital gains could not be computed--Matter remanded-- CIT v. P. R. Seshadri (Karn) . . . 377

S. 54F --Capital gains--Exemption--Investment of net consideration in residential house--Fact that land was owned by assessee's spouse and she had used construction for mortgage purposes--Not relevant--Finding that house had been constructed--Assessee entitled to benefit of section 54F-- CIT v. P. R. Seshadri (Karn) . . . 377

S. 69 --Unexplained investment--Assessee purchasing demand drafts and remitting to a party--No proof that sum represented bad debt or business loss--Addition as unexplained investment--Justified-- Satish Kumar v. CIT (P&H) . . . 396

S. 80HH --Industrial undertaking in backward area--Special deduction--Finding that industrial undertaking was situated in district notified as a backward area--Assessee entitled to special deduction under section 80HH--Notification No. S.O. 165(E), dated December 19, 1986-- CIT v. Guffic Chem P. Ltd . (Karn) . . . 470

S. 80HHC --Export--Special deduction under section 80HHC--Computation of export turnover--Freight and insurance not includible in export turnover-- CIT v. King Metal Works (Bom) . . . 426

----Export--Special deduction under section 80HHC--Computation of special deduction--Meaning of profits of business--Entire sale consideration on transfer of DEPB credit assessable under section 28(iiid)-- CIT v. King Metal Works (Bom) . . . 426

S. 80-IA --Industrial undertaking--Special deduction under section 80-IA--Condition precedent--Manufacture of article--Meaning of "manufacture"--Conversion of limestone into limestone powder constitutes manufacture--Assessee entitled to special deduction under section 80-IA-- CIT v. Janak Raj Bansal (HP) . . . 417

S. 80-IB --Industrial undertaking--Special deduction under section 80-IB--Condition precedent--Manufacture of article--Meaning of manufacture--Process of making transformer core from cold rolled coils amounts to "manufacture"--Assessee entitled to special deduction under section 80-IB-- CIT v. Alfa Lamination (Guj) . . . 348

S. 115J --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 115JA --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 132 --Rectification of mistake--Mistake apparent from record--Search and seizure--Refund--Interest on refund--Assessee entitled to interest--Assessee to seek rectification-- CIT v. Sri Krishna Saraf (Mad) . . . 342

----Search and seizure--Search at premises of third person--Seizure and recovery from safe deposits belonging to assessee--Issue of notice under section 142(1) after search revealing search having nexus with assessee--Assessment under section 143(3)--Assessee entitled to seek necessary relief under section 132B(4)-- CIT v. Sri Krishna Saraf (Mad) . . . 342

S. 132B(4) --Search and seizure--Search at premises of third person--Seizure and recovery from safe deposits belonging to assessee--Issue of notice under section 142(1) after search revealing search having nexus with assessee--Assessment under section 143(3)--Assessee entitled to seek necessary relief under section 132B(4)-- CIT v. Sri Krishna Saraf (Mad) . . . 342

S. 143 --Reassessment--Limitation--Law applicable--Effect of amendment of section 143 w.e.f. 1-4-1989--Return filed on 24-1-2003 in response to notice under section 148--No notice issued under section 143(2) but assessee having opportunity to be heard--Order of reassessment passed on 26-3-2004--Barred by limitation--Circular No. 549 dated 31-10-1989-- CIT v. Deep Baruah (Gauhati) . . . 362

----Reassessment--Limitation--Law applicable--Effect of amendment of section 143 w.e.f. 1-4-1989--Return filed on 24-1-2003 in response to notice under section 148--No notice issued under section 143(2) but assessee having opportunity to be heard--Order of reassessment passed on 26-3-2004--Barred by limitation--Circular No. 549 dated 31-10-1989-- CIT v. Deep Baruah (Gauhati) . . . 362

----Search and seizure--Search at premises of third person--Seizure and recovery from safe deposits belonging to assessee--Issue of notice under section 142(1) after search revealing search having nexus with assessee--Assessment under section 143(3)--Assessee entitled to seek necessary relief under section 132B(4)-- CIT v. Sri Krishna Saraf (Mad) . . . 342

S. 147 --Constitution of India, art. 226--Reassessment--Writ--Writ court cannot consider facts--Return submitted by assessee--Survey showing undisclosed income--Notice of reassessment was valid-- Dr. Lata Chouhan v. ITO (MP) . . . 400

----Reassessment--Notice--Notice beyond four years--Condition precedent--Failure to disclose material facts necessary for assessment--Facts relating to sale of shares disclosed and assessment after enquiry--Notice after four years on ground that transaction not genuine--Notice not valid-- Smt. Raj Rani Gulati v. Union of India (All) . . . 370

----Reassessment--Notice--Oral direction not to proceed with enquiry--Enquiry without affording an opportunity to assessee--Assessment order set aside--Matter remanded-- Vira Properties (Madras) Pvt. Ltd. v. Asst. CIT (Mad) . . . 389

S. 148 --Constitution of India, art. 226--Reassessment--Writ--Writ court cannot consider facts--Return submitted by assessee--Survey showing undisclosed income--Notice of reassessment was valid-- Dr. Lata Chouhan v. ITO (MP) . . . 400

----Reassessment--Notice--Notice beyond four years--Condition precedent--Failure to disclose material facts necessary for assessment--Facts relating to sale of shares disclosed and assessment after enquiry--Notice after four years on ground that transaction not genuine--Notice not valid-- Smt. Raj Rani Gulati v. Union of India (All) . . . 370

----Reassessment--Notice--Oral direction not to proceed with enquiry--Enquiry without affording an opportunity to assessee--Assessment order set aside--Matter remanded-- Vira Properties (Madras) Pvt. Ltd. v. Asst. CIT (Mad) . . . 389

S. 154 --Rectification of mistake--Mistake apparent from record--Search and seizure--Refund--Interest on refund--Assessee entitled to interest--Assessee to seek rectification-- CIT v. Sri Krishna Saraf (Mad) . . . 342

S. 158BFA(1) --Search and seizure--Addition on account of documents found at premises of a relative of assessee--Investment in purchase of car and interest--Tribunal remanding the matter to Assessing Officer--Findings of fact-- CIT v. Harjit Singh (P&H) . . . 422

S. 197 --Deduction of tax at source--Certificate for non-deduction--Assesssee claiming income was exempt under section 11--Amendment of section 2(15) w.e.f. 1-4-2009 not challenged--Union of India not impleaded as a party--Effect of amendment of section 2(15) could not be considered--Refusal to issue certificate for non-deduction of tax at source--Justified-- Infoparks Kerala v. Deputy CIT (Ker) . . . 404

S. 207 --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 208 --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 234B --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 234C --Advance tax--Interest--Company--Assessment on book profits basis--No liability to pay advance tax--No interest leviable for default in payment of advance tax-- Binani Industries Ltd. v. CIT (Cal) . . . 323

S. 260A --Appeal to High Court--Powers of High Court--Finding of fact cannot normally be set aside-- CIT v. Forech India Ltd. (Delhi) . . . 336

----Appeal to High Court--Powers of High Court--Point not raised before lower authorities cannot be considered by High Court-- CIT v. Chand Ratan Bagri (Delhi) . . . 356

S. 271(1)(c) --Penalty--Concealment of income--Search and seizure--Additional income offered by assessee and assessed on estimate--Levy of penalty not permissible without detailed discussion of documents and explanation for offer of additional income-- CIT v. Suresh Chand Bansal (Cal) . . . 330

----Search and seizure--Penalty--No concealment of income--No failure to furnish inaccurate particulars of income--Assessing authority not justified in levying penalty-- CIT v. Sri Krishna Saraf (Mad) . . . 342

Tuesday, November 30, 2010

Recent judgements [1 Attachment]

Dear Friend,
Have a llook on the recent judgements

RECENT JUDGEMENTS ON INCOME TAX

 

 

 

I. MANUFACTURING OR PRODUCTION

 

(i) Texturising and Twisting of yarn are manufacturing activities.

 

-- I.T.O. Vs. EMPTEE POLY-YARNS PVT. LTD.

(2010) 320 ITR 665 (SC)

 

(ii) Process of transferring Blank C.D. into software loaded disc does

constitute manufacture.

-- C.I.T. VS. ORACLE SOFTWARE INDIA LTD.

(2010) 320 ITR 546 (SC)

 

(iii) Activity of doing embroidery on fabrics is manufacturing or production of goods eligible for additional depreciation.

-- ASWANI INDUSTRIES ITA NO. 2103/AHD/2010

-- HARI PRIYA PROCESSORS P. LTD.

ITA NO. 1569/AHD/2010

 

II. ADMISSIONS/DECLARATIONS DURING  SEARCH /SURVEY

Addition cannot be made solely on the basis of statements recorded during survey without any corroborative findings.

-- C.I.T. Vs. M/S. DHINGRA METALWORKS

ITA NO. 1111 OF 2010 (DELHI HIGH COURT)

Also Refer

-- PAUL MATHEWS & SONS Vs. C.I.T.

(2003) 263 ITR 101 (KERALA)

-- C.I.T. Vs. S. KHEDAR KHAN

(2008) 300 ITR 157 (MAD)

 

III. BAD-DEBTS

(i) After 1st April, 1989 it is not necessary for the assesses to establish that the debt, in fact, has become bad and irrevocable. It is enough if the bad debts are written off as irrevocable in the accounts of assesses.

-- T.R.F. LTD. Vs. C.I.T.

(2010) 323 ITR 397 (SC)

 

(ii) It is not necessary to write off and eliminate debtor in the accounts of the assessee. Writing off the Provision for bad debts in P & L A/C and reducing such provision from the figure of debtors in the assets side of Balance Sheet is enough.

-- VIJAYA BANK Vs. CIT & ANR

(2010) 323 ITR 166 (SC)

 

(iii) NPA provisions (i.e. provision for doubtful debts) debited by the NBFCs and reflected under the head 'Current Liabilities & Provisions in the Balance Sheet are not deductible u/s. 36(1)(vii) of the Act as bed-debts written off.

-- SOUTHERN TECHNOLOGOES LTD. Vs. DCIT

(2010) 320 ITR 577 (SC)

 

(iv) If brokerage was offered to tax, the share broker is entitled for deduction of bad debts u/s 36 (1)(vii) r.w.s. 36(2) in respect of entire amountbecoming irrecoverable from the client, apart from brokerage.

-- DCIT Vs. SHREYAS S. MORAKHIA

(2010) TIOL 390 (MUM – SB)

 

IV. DISALLOWANCE U/S. 40(a)(ia)

(i) No disallowance can be made in respect of sums on which TDS was deducted in the month of March (though deductible in earlier months) and paid before the due date of filing of the Return.

-- BAPUSAHEB NANASAHEB DHUMAL Vs. ACIT ITA NO. 6628/MUM/2009

 

(ii) Amendments to S. 40(a)(ia) by the Finance Act, 2010 are of curative nature and would therefore apply to earlier assessment years also and accordingly no disallowance can be made even in earlier years if TDS is deposited before due date for filing of ROI.

-- GOLDEN STABLE LIFESTYALE CENTRE P. LTD.

ITA. NO. 5145/MUM/2009

 

(iii) When there is no element of income and payments are only as reimbursement of expenses incurred by the payee, then no disallowance can be made u/s 40(a)(ia) of the Act.

-- UTILITY POWER TECH LTD. Vs. ACIT

(2010) TIOL 545 (MUM)

 

V. PENALTY U/S. 271 (1)(c)

(i) Merely because the assessee claimed deduction which has not been accepted by Revenue, Penalty u/s. 271(1)(c ) is not attracted. DILIP N.SHROFF 210 CTR (SC) 228, UOI VS. Dharmendra Textile

Processors 212 CTR (SC) 432 and Rajasthan Spg. & Wvg. Mills 224

CTR (SC) 1 explained .

-- C.I.T. VS. RELIANCE PETROPRODUCTS (P) LTD.

(2010) 322 ITR 158 (SC)

 

(ii) Penalty cannot be levied on disallowance made u/s 40A(2) of the Act. Such disallowance does not fall into category of concealment of income or furnishing inaccurate particulars of income.

-- JHAVAR PROPERTIES PVT. LTD.

123 ITD 429 (MUM)

 

VI. RE-ASSESSMENT U/S. 147/148

(i) Re-assessment proceedings cannot be initiated on the basis of change of opinion. Re-assessment proceedings can be initiated only when AO has tangible material to come to the conclusion that there is escapement of income.

-- C.I.T. VS. KELVINATOR OF INDIA LTD.

(2010) 320 ITR 561 (SC)

 

(ii) If AO does not assess the income for which reasons were recorded u/s.147, he can not assess any other income u/s. 147 of the Act. Reassessment order in such a case will be invalid.

-- C.I.T. VS. JET AIRWAYS

ITA NO. 1714 of 2009 (BOMBAY HIGH COURT)

 

VII. SEC. 14A & RULE 8D

(i) Disallowance u/s 14A can be made if shares are held as investments andonly income derived is Dividend Income. But if shares are held as stock in trade and assessee deals in shares, then disallowance u/s 14A cannot be made.

-- CIT Vs. SMT. LEENA RAMCHANDRAN

ITA NO. 1784 OF 2009 (KERALA HIGH COURT)

 

(ii) Provisions of sub-sections (2) and (3) of Section 14A are prospective and are applicable from A.Y. 2007-08 only. Rule 8D is also prospective and is applicable from A.Y. 2008-09.

 

(iii) The AO cannot ipso facto apply Rule 8D but can do so only where he records satisfaction that assessee is unable to establish the correctness of his claim.

 

(iv) Only the expenses which are incurred in relation to exempt income can be disallowed. Interest expenditure which is directly relatable to the assessee's other income (say interest on loan taken for plant & machinery) shall be excluded while working our disallowance u/s 14A read with Rule 8D.

 

(v) Provisions of Section 14A (2) & (3) and Rule 8D are constitutionally valid. Argument that dividend on shares/units is not tax free in view of Section 115-O is not acceptable. These are exempt income in the hands of shareholder/unitholder and provisions of Section 14A are applicable.

-- GODREJ & BOYCE Vs. DCIT

W.P. NO. 758 of 2010.

 

VIII. S. 94(7) – DIVIDEND STRIPPING

 

(i) Provisions of Section 94(7) shall apply prospectively from A.Y. 2002-03.

Loss incurred in Dividend Stripping transactions before that is allowable.

Provisions of Section 14A are applicable to expenditure and not losses.

 

-- CIT Vs. WALFORT SHARE STOCK BROKERS PVT. LTD.

326 ITR 1 (SC)

 

(ii) Conditions spelt out in clauses (a), (b) and (c) of S. 94(7) are cumulative and not alternative. Purchases of units within 3 months but sale beyondthe prescribed period – Loss cannot be ignored.

-- CIT Vs. ALKA BHOSLE

ITA NO. 2656 OF 2009 (BOMBAY HIGH COURT)

 

IX. BLOCK ASSESSMENT

 

(i) In an assessment u/s 153A of the Act, additions can be made only on the basis of material found as a result of search.

-- ANIL KHIMANI Vs. DCIT

2010 TIOL 177 ITAT (MUM)

 

(ii) Block Assessment order passed u/s 158BC without issuing notice u/s 143(2) within stipulated time is bad in law.

-- ACIT Vs. HOTEL BLUE MOON

(2010) 321 ITR 362 (SC)

 

 

X. CAPITAL GAIN VIS-À-VIS BUSINESS INCOME

 

If shares are held for more than a month, they should be treated as investment and profit on said should be charged to Capital Gains. When shares are held for less than a month, gain on them should be treated as profits of business.

-- SUGAMCHAND C. SHAH Vs. ACIT

(2010) 37 DTR (AHD) (TRIB) 345

 


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Friday, November 26, 2010

ITR(Trib) Vol 6 Part 5 dated 29-11-2010

ITR'S TRIBUNAL TAX REPORTS (ITR (Trib)) HIGHLIGHTS ISSUE DATED 29-11-2010

Volume 6 Part 5

APPELLATE TRIBUNAL ORDERS

 

 

>> Where claim of provision for doubtful debts disclosed in account, discharge of burden by assessee u/s. 271(1)(c), Expln. 1, levy of penalty not justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

>> Claim of set-off of long-term capital loss against business income of current year after applying indexed cost of acquisition, not permissible u/s. 71, penalty justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

>> Disclosure of rental income after enquiry by AO under compulsion, penalty justified u/s. 271(1)(c) : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

>> Adjustment to opening WDV of assets result of WDV finally worked out in earlier years, deletion of penalty justified : Asst. CIT v. Nuchem Ltd. (Delhi) p. 429

>> Management and selling commission paid to non-resident lead managers by Indian company in connection with issue of GDRs, not taxable : Dy. DIT v. Tata Iron and Steel Co. Ltd. (Mumbai) p. 463

>> Where deduction allowed on entire indexed cost of acquisition of land with trees, part of sale proceeds not agricultural income : Abhinav Ajmera v. Asst. CIT (Delhi) p. 482

>> Derivative transactions carried out in previous year relevant to assessment year 2006-07 ; business income : Smt. Seema Jain v. Asst. CIT (Delhi) p. 488

>> Admission of cash payments exceeding specified limit under compulsion during search, retracted by assessee, addition u/s. 40A(3) reduced : Sona Bazaar v. Asst. CIT (Bangalore) p. 492

>> Exclusion of reimbursement of advertisement expenditure for determining profit level indicator not proper : Panasonic India P. Ltd. v. ITO (Delhi) p. 502

>> Data for comparison to be data relating to year in which international transaction entered into : Panasonic India P. Ltd. v. ITO (Delhi) p. 502

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Thursday, November 18, 2010

ITR (Trib) Volume 6 Part 4 ISSUE Dt 22-11-2010

ITR'S TRIBUNAL TAX REPORTS (ITR (Trib)) HIGHLIGHTS
ISSUE DATED 22-11-2010 Volume 6 Part 4

    APPELLATE TRIBUNAL ORDERS

 ->> Where reconciliation of difference in personal accounts not completely administered by dealer during assessment, profit element alone taxable and restriction of quantum addition justified : Dy. CIT v. HVAC Systems P. Ltd. (Bang) p. 346

 ->> Registration granted to assessee engaged in charitable activity u/s.12A not withdrawn, renewal of certificate u/s. 80G to be granted : Gian Educational Society v. CIT (Delhi) p. 350

 ->> Where foreign company deriving income from Indian concern under agreement for provision of licence for technology and intellectual property and condition u/s. 10(6A) fulfilled, foreign company entitled to exemption : ITO v. Shell Gas B.V. (Ahd.) p. 353

 ->> Where original assessments not abated and documents seized during search of any other person not belonging to assessee, assessment u/s. 153A invalid : Meghmani Organics Ltd. v. Dy. CIT (Ahd.) p. 360

 ->> No amount of money, bullion, jewellery or other valuable article or thing or books of account or documents seized belonged to assessee, assessments u/s. 153C cancelled : Asst. CIT v. Gambhir Silk Mills (Ahd.) p. 376

 ->> Non-resident entering into composite contract with Metro Railway for supply of equipment on FOB and provision of services, consideration for offshore supply of equipment received outside India, not liable to pay tax in India : Xelo Pty. Ltd. v. Dy. DIT (International Taxation) (Mumbai) p. 391

 ->> Interest amount waived by GoI to be included in computation of book profit u/s. 115JA : Hindustan Shipyard Ltd. v. Dy. CIT (Visakhapatnam) p. 407

 ->> Book profit : Provision for liquidated damages and leave encashment covered under ascertained liabilities not u/s.115JA : Hindustan Shipyard Ltd. v. Dy. CIT (Visakhapatnam) p. 407



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