Sunday, March 13, 2011

ITR(Trib) Volume 7 Part 4 dt 24-01-2011

ITR'S TRIBUNAL TAX REPORTS (ITR (TRIB))

Volume 7 : Part 4 (Issue dated : 24-1-2011)

SUBJECT INDEX TO CASES REPORTED IN THIS PART

Appeal to Appellate Tribunal --Additional ground regarding block assessment barred by limitation not raised before Assessing Officer or Commissioner (Appeals)--No specific plea in appeal filed before Tribunal also--Ground raised after conclusion of hearing on issue cannot be entertained--Income-tax Act, 1961-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

Assessment --Best judgment assessment--Income-tax Officer (HQ) calling for return of income under section 142(1)--Assessee having already filed return with its Assessing Officer--Completion of assessment by Income-tax Officer (HQ) without serving notice under section 143(2)--Income-tax Officer (HQ) has no jurisdiction to issue notice--Assessment null and void--Income-tax Act, 1961, ss. 142(1), 143(2), 144-- Pravin Balubhai Zala v. ITO (Mumbai) . . . 375

Business expenditure --Accounting--Return of loss--Opening work-in-progress--Percentage completion method--Closing work-in-progress offered to tax--Expenditure incurred in preceding year relating to project--Accumulation of income on year to year basis till completion of project--No requirement of return for benefit of carry forward of loss--Completion of small percentage of total work in preceding year--Income need not be offered to tax--Opening work-in-progress allowable--Income-tax Act, 1961, ss. 37, 139(3)-- Deputy Director of Income-tax v. Stork Engineers and Contractors B. V. (Mumbai) . . . 365

----Disallowance--Expenses on film production by way of advertisement--Allowable on basis of outcome of assessee's earlier case--Income-tax Act, 1961, s. 37-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

----Expenditure on repair of plant and machinery--No new asset brought into existence--Replacement of parts of machinery for maintenance--Allowable--Income-tax Act, 1961, s. 37-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

----Non-resident company engaged in business of engineering, procurement and construction activities--Expenditure incurred during period intervening between grant of approval to set up project office in India and commencement of actual work--Not prior period expenditure--Deduction allowable--Man-hour cost allowed in subsequent year --Allowable--Income-tax Act, 1961, s. 37-- Deputy Director of Income-tax v. Stork Engineers and Contractors B. V. (Mumbai) . . . 365

----Provision for leave encashment of employees--Change in method of accounting from cash to mercantile--Liability for earlier year cannot be allowed in current year--Incremental liability pertaining to assessment year alone allowable--Income-tax Act, 1961, ss. 37, 145-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

Capital or revenue receipt --Consideration received for transfer of marketing network of pharmaceutical products to subsidiary of proprietor/licensor of trade marks subsequent to termination of trade mark licence agreement--Profit making structure of assessee not impaired by termination--Assessee deemed to carry on manufacture of pharma products and related activities--Amount received incidental to assessee's business--Revenue receipt--Income-tax Act, 1961, s. 28-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

Export --Exemption--Income received in foreign exchange--Assessee engaged in software development and having branch outside India--Export proceeds retained outside India in accordance with Reserve Bank guidelines and utilised on computer software development on-site at client's place outside India and on expenses of branch--Not to be excluded from export turnover--Income-tax Act, 1961, ss. 9(1)(vii), Expln. 2, 10B--Circular No. 621 dated December 19, 1991--Circular No. 694 dated November 23, 1994-- Zylog Systems Limited v. ITO [SB] (Chennai) . . . 348

----Special deduction under section 80HHC--Manufacture of viscose staple fibre from wood pulp--Amount received on export--Assessee complying with all conditions prescribed under section 80HHC--Assessee entitled to deduction--Income-tax Act, 1961, s. 80HHC-- Grasim Industries Ltd. v. Asst. CIT (Mumbai) . . . 407

Reassessment --Return processed under section 143(1)--Assessee showing long-term capital gain instead of short-term capital gain--Reopening not a result of change of opinion--Initiation and dropping of proceedings under section 154 cannot be equated with passing of an assessment order--Reassessment valid--Income-tax Act, 1961, ss. 143, 147-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

Search and seizure --Block assessment--Undisclosed income--Jurisdiction--All cases under control of Assessing Officer after search--Assessing Officer has jurisdiction --Income-tax Act, 1961, ss. 132, 158BD-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

Short-term capital gains --Sale of depreciable assets--Assessee showing land and building figure in a composite manner and claiming depreciation for previous years--Amount realised to be adjusted against written down value of concerned block of assets --Income-tax Act, 1961, ss. 50, 54EC-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

Unexplained investment --Assessee failing to prove source of investment in flat--Addition of amount as unexplained investment--Proper--Income-tax Act, 1961, ss. 69, 158BD-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Income-tax Act, 1961 :

S. 9(1)(vii), Expln. 2 --Export--Exemption--Income received in foreign exchange--Assessee engaged in software development and having branch outside India--Export proceeds retained outside India in accordance with Reserve Bank guidelines and utilised on computer software development on-site at client's place outside India and on expenses of branch--Not to be excluded from export turnover--Circular No. 621 dated December 19, 1991--Circular No. 694 dated November 23, 1994-- Zylog Systems Limited v. ITO [SB] (Chennai) . . . 348

S. 10B --Export--Exemption--Income received in foreign exchange--Assessee engaged in software development and having branch outside India--Export proceeds retained outside India in accordance with Reserve Bank guidelines and utilised on computer software development on-site at client's place outside India and on expenses of branch--Not to be excluded from export turnover--Circular No. 621 dated December 19, 1991--Circular No. 694 dated November 23, 1994-- Zylog Systems Limited v. ITO [SB] (Chennai) . . . 348

S. 28 --Capital or revenue receipt--Consideration received for transfer of marketing network of pharmaceutical products to subsidiary of proprietor/licensor of trade marks subsequent to termination of trade mark licence agreement--Profit making structure of assessee not impaired by termination--Assessee deemed to carry on manufacture of pharma products and related activities--Amount received incidental to assessee's business--Revenue receipt-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

S. 37 --Business expenditure--Accounting--Return of loss--Opening work-in-progress--Percentage completion method--Closing work-in-progress offered to tax--Expenditure incurred in preceding year relating to project--Accumulation of income on year to year basis till completion of project--No requirement of return for benefit of carry forward of loss--Completion of small percentage of total work in preceding year--Income need not be offered to tax--Opening work-in-progress allowable-- Deputy Director of Income-tax v. Stork Engineers and Contractors B. V. (Mumbai) . . . 365

----Business expenditure--Disallowance--Expenses on film production by way of advertisement--Allowable on basis of outcome of assessee's earlier case-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

----Business expenditure--Expenditure on repair of plant and machinery--No new asset brought into existence--Replacement of parts of machinery for maintenance--Allowable-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

----Business expenditure--Non-resident company engaged in business of engineering, procurement and construction activities--Expenditure incurred during period intervening between grant of approval to set up project office in India and commencement of actual work--Not prior period expenditure--Deduction allowable--Man-hour cost allowed in subsequent year--Allowable-- Deputy Director of Income-tax v. Stork Engineers and Contractors B. V. (Mumbai) . . . 365

----Business expenditure--Provision for leave encashment of employees--Change in method of accounting from cash to mercantile--Liability for earlier year cannot be allowed in current year--Incremental liability pertaining to assessment year alone allowable-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

S. 50 --Short-term capital gains--Sale of depreciable assets--Assessee showing land and building figure in a composite manner and claiming depreciation for previous years--Amount realised to be adjusted against written down value of concerned block of assets-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

S. 54EC --Short-term capital gains--Sale of depreciable assets--Assessee showing land and building figure in a composite manner and claiming depreciation for previous years--Amount realised to be adjusted against written down value of concerned block of assets-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

S. 69 --Unexplained investment--Assessee failing to prove source of investment in flat--Addition of amount as unexplained investment--Proper-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

S. 80HHC --Export--Special deduction under section 80HHC--Manufacture of viscose staple fibre from wood pulp--Amount received on export--Assessee complying with all conditions prescribed under section 80HHC--Assessee entitled to deduction-- Grasim Industries Ltd. v. Asst. CIT (Mumbai) . . . 407

S. 132 --Search and seizure--Block assessment--Undisclosed income--Jurisdiction--All cases under control of Assessing Officer after search--Assessing Officer has jurisdiction-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

S. 139(3) --Business expenditure--Accounting--Return of loss--Opening work-in-progress--Percentage completion method--Closing work-in-progress offered to tax--Expenditure incurred in preceding year relating to project--Accumulation of income on year to year basis till completion of project--No requirement of return for benefit of carry forward of loss--Completion of small percentage of total work in preceding year--Income need not be offered to tax--Opening work-in-progress allowable-- Deputy Director of Income-tax v. Stork Engineers and Contractors B. V. (Mumbai) . . . 365

S. 142(1) --Assessment--Best judgment assessment--Income-tax Officer (HQ) calling for return of income under section 142(1)--Assessee having already filed return with its Assessing Officer--Completion of assessment by Income-tax Officer (HQ) without serving notice under section 143(2)--Income-tax Officer (HQ) has no jurisdiction to issue notice--Assessment null and void-- Pravin Balubhai Zala v. ITO (Mumbai) . . . 375

S. 143 --Reassessment--Return processed under section 143(1)--Assessee showing long-term capital gain instead of short-term capital gain--Reopening not a result of change of opinion--Initiation and dropping of proceedings under section 154 cannot be equated with passing of an assessment order--Reassessment valid-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

S. 143(2) --Assessment--Best judgment assessment--Income-tax Officer (HQ) calling for return of income under section 142(1)--Assessee having already filed return with its Assessing Officer--Completion of assessment by Income-tax Officer (HQ) without serving notice under section 143(2)--Income-tax Officer (HQ) has no jurisdiction to issue notice--Assessment null and void-- Pravin Balubhai Zala v. ITO (Mumbai) . . . 375

S. 144 --Assessment--Best judgment assessment--Income-tax Officer (HQ) calling for return of income under section 142(1)--Assessee having already filed return with its Assessing Officer--Completion of assessment by Income-tax Officer (HQ) without serving notice under section 143(2)--Income-tax Officer (HQ) has no jurisdiction to issue notice--Assessment null and void-- Pravin Balubhai Zala v. ITO (Mumbai) . . . 375

S. 145 --Business expenditure--Provision for leave encashment of employees--Change in method of accounting from cash to mercantile--Liability for earlier year cannot be allowed in current year--Incremental liability pertaining to assessment year alone allowable-- Deputy CIT v. Bayer (India) Ltd. (Mumbai) . . . 381

S. 147 --Reassessment--Return processed under section 143(1)--Assessee showing long-term capital gain instead of short-term capital gain--Reopening not a result of change of opinion--Initiation and dropping of proceedings under section 154 cannot be equated with passing of an assessment order--Reassessment valid-- Raj Woolen Industries v. Asst. CIT (Delhi) . . . 339

S. 158BD --Search and seizure--Block assessment--Undisclosed income--Jurisdiction--All cases under control of Assessing Officer after search--Assessing Officer has jurisdiction-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331

----Unexplained investment--Assessee failing to prove source of investment in flat--Addition of amount as unexplained investment--Proper-- Kanjibhai Naranbhai Waghela v. Asst. CIT (Ahmedabad) . . . 331
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