Friday, April 1, 2011

ITR Vol 332 Part 3 dt 04.04.2011

INCOME TAX REPORTS (ITR)
Volume 332 : Part 3 (Issue dated 4-4-2011)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
HIGH COURTS
Appeal to Commissioner (Appeals) --Loss on sale of shares--Additional evidence--No objection in remand report to admission of additional evidence--Evidence having direct bearing on quantum of claim--Addition deleted by Commissioner (Appeals) and confirmed by Tribunal--Justified--Work outsourced to sister concern and expenses for undertaking that work allocated on proportionate basis to assessee--Explanation furnished by assessee found to be satisfactory--Income-tax Act, 1961--Income-tax Rules, 1962, r. 46A-- CIT v. Virgin Securities and Credits P. Ltd. (Delhi) . . . 396
Appeal to High Court --Powers of court--Power to consider question of law though not formulated at time of admission of appeal--Income-tax Act, 1961, s. 260A(4)-- Helios and Metheson Information Technology Ltd . v. Asst. CIT (Mad) . . . 403
Business expenditure --Deduction only on actual payment--Law applicable--No disallowance if amount paid before due date for furnishing of return--First proviso to section 43B retrospective in operation--ESI contribution for accounting year relevant to assessment year 1998-99 paid before submission of return--Matter remanded for consideration of applicability of Allied Motors' case and CBDT Circular No. 7 of 2003--Income-tax Act, 1961, s. 43B-- Sudhir Kumar Agarwala v. CIT (Orissa) . . . 452
Business income --Estimation--Gross profit rate--No discrepancies in trading operations and stock--Non-maintenance of day-to-day stock register--Not a reason to reject books--No adverse comment regarding books produced before Assessing Officer--Lower gross profit rate in period subsequent to survey due to huge discounts on merchandise--Gross profit rate disclosed by assessee reasonable--Income-tax Act, 1961-- CIT v. Bindals Apparels (Delhi) . . . 410
Business loss --Depreciation--Carry forward and set off--Hotel business carried on by assessee--Agreement with another company for running hotel--Disputes and suit against other company--Hotel business run by court receiver who was a director of assessee-company--Assessee resuming business--No cessation of business--Losses and depreciation carried forward could be set off against profits--Income-tax Act, 1961, ss. 32, 72-- CIT v. Bencomar Hotels (Goa) P. Ltd. (Bom) . . . 441
Capital gains --Short-term capital gains--Finding that gains were short-term capital gains--Finding of fact--Income-tax Act, 1961-- Sudhir Kumar Agarwala v. CIT (Orissa) . . . 452
Cash credits --Company--Share capital--Deposits in company--Assessee providing identity and creditworthiness of shareholders and depositors--Amounts could not be added under section 68--Income-tax Act, 1961, s. 68-- CIT v. Ambuja Ginning, Pressing and Oil Co. P. Ltd . (Guj) . . . 434
Income from undisclosed sources --Assessing Officer making estimated additions on basis of loose papers found during survey--Commissioner (Appeals) as well as Tribunal partly setting aside addition holding that loose papers not to be accepted, in absence of any other material--No question of law--Income-tax Act, 1961-- CIT v. Atam Valves (P) Ltd . (P&H) . . . 468
Industrial undertaking --Manufacture--Converting raw fish into tinned fish--Processing but not manufacturing--Assessee not entitled to deduction--Income-tax Act, 1961, s. 80-IB-- CIT v. Gitwako Farma (I) P. Ltd. (Delhi) . . . 471
----Special deduction under section 80-IA --Assessee undertaking manufacturing jobs on behalf of others --Entitled to special deduction--Income-tax Act, 1961, s. 80-IA -- CIT v. Ambuja Ginning, Pressing and Oil Co. P. Ltd. (Guj) . . . 434
Interest-tax --Interest--Definition--Bank giving loan at lower rate of interest under Export Credit Subsidy Scheme of RBI--Compensation paid to bank by RBI for loss of interest--Amount received from RBI not "interest" under Interest-tax Act--Interest-tax Act, 1974, s. 2(7)-- Punjab National Bank v. CIT (Delhi) . . . 337
Non-resident --Income deemed to accrue or arise in India--Condition precedent--Business connection--Carrying out operations in India, wholly or partly, essential--Royalty--Meaning of--Transfer of rights in respect of property--Different from transfer of rights in property--Assessee, a non-resident, engaged in satellite communications and having control of satellites--Providing use of transponder facility on satellite to television companies outside India--Signals from customers' facilities received by transponder on assessee's satellite, amplified and relayed--Cable operators in India receiving and passing them on to customers--Assessee having no business operations in India--No lease of equipment but only use of broadband facility--That transponder had footprint on various continents did not imply process took place in India--Payment not royalty--Income-tax Act, 1961, ss. 5(2), 9(1)(i), (vi), Expln. 2, (vii), 90-- Asia Satellite Telecommunications Co. Ltd . v. DIT (Delhi) . . . 340
Reassessment --Notice after four years--Assessee showing receipt of substantial sum in profit and loss account in relation to transfer of division but not making reference thereto in return--Transferor and transferee companies having common directors and operating at same address--Division commenced barely two years before transfer--Copies of agreement not produced--Failure to make full disclosure of material facts--Reassessment valid--Claim that sum received as non-compete fee under restrictive covenant upon transfer of business not established--Income-tax Act, 1961, s. 147-- Helios and Metheson Information Technology Ltd. v. Asst. CIT (Mad) . . . 403
----Notice--Assessee disclosing fully and truly all material facts necessary for assessment--Notice issued beyond period of four years cannot be sustained--Income-tax Act, 1961, ss. 147, 148-- Yash Raj Films P. Ltd. v. Asst. CIT (Bom) . . . 428
----Validity--Rectification proceedings dropped--Subsequent reassessment proceedings within limitation--Valid--Income-tax Act, 1961, ss. 147, 154-- CIT v. India Sea Foods (Ker) . . . 424
Rectification of mistakes --Mistake must be obvious--Assessee carrying on hotel business setting off unabsorbed depreciation and loss carried forward--Finding that there had been no cessation of business--No mistake apparent from record--Rectification proceedings to withdraw benefit of set-off--Not valid--Income-tax Act, 1961, s. 154 -- CIT v. Bencomar Hotels (Goa) P. Ltd. (Bom) . . . 441
Tour operator --Special deduction--Advances received in foreign exchange placed in short-term deposits in banks--Interest earned in Indian currency--Interest not profits derived from services provided to foreign tourists--Not entitled to benefit under section 80HHD--Income-tax Act, 1961, s. 80HHD--Lotus Trans Travels P. Ltd. v. CIT(Delhi) . . . 463
Unexplained investment --Finding by Commissioner (Appeals) and Tribunal that explanation regarding investment was reasonable--Amount not assessable as unexplained investment--Income-tax Act, 1961, s. 69-- CIT v. Byyanna (HUF) (Karn) . . . 448
AUTHORITY FOR ADVANCE RULINGS
Business profits --Special provision--Foreign company--Turnkey power project--Contract for erection of steam turbines etc.--Applicant to deploy expats and work force--Presumptive rate of tax applicable--Income-tax Act, 1961, s. 44BBB-- Toshiba Plant Systems Services Corporation , In re . . . 456
Non-resident --Exploration of mineral oils--Special provision for computing profits--Applicable to seismic data acquisition and processing for exploration companies--Income-tax Act, 1961, s. 44BB-- Global Geophysical Services Ltd. , In re . . . 418
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Income-tax Act, 1961 :
S. 5(2) --Non-resident--Income deemed to accrue or arise in India--Condition precedent--Business connection--Carrying out operations in India, wholly or partly, essential--Royalty--Meaning of--Transfer of rights in respect of property--Different from transfer of rights in property--Assessee, a non-resident, engaged in satellite communications and having control of satellites--Providing use of transponder facility on satellite to television companies outside India--Signals from customers' facilities received by transponder on assessee's satellite, amplified and relayed--Cable operators in India receiving and passing them on to customers--Assessee having no business operations in India--No lease of equipment but only use of broadband facility--That transponder had footprint on various continents did not imply process took place in India--Payment not royalty-- Asia Satellite Telecommunications Co. Ltd . v. DIT (Delhi) . . . 340
S. 9(1)(i), (vi), Expln. 2, (vii) --Non-resident--Income deemed to accrue or arise in India--Condition precedent--Business connection--Carrying out operations in India, wholly or partly, essential--Royalty--Meaning of--Transfer of rights in respect of property--Different from transfer of rights in property--Assessee, a non-resident, engaged in satellite communications and having control of satellites--Providing use of transponder facility on satellite to television companies outside India--Signals from customers' facilities received by transponder on assessee's satellite, amplified and relayed--Cable operators in India receiving and passing them on to customers--Assessee having no business operations in India--No lease of equipment but only use of broadband facility--That transponder had footprint on various continents did not imply process took place in India--Payment not royalty-- Asia Satellite Telecommunications Co. Ltd . v. DIT (Delhi) . . . 340
S. 32 --Business loss--Depreciation--Carry forward and set off--Hotel business carried on by assessee--Agreement with another company for running hotel--Disputes and suit against other company--Hotel business run by court receiver who was a director of assessee-company--Assessee resuming business--No cessation of business--Losses and depreciation carried forward could be set off against profits-- CIT v. Bencomar Hotels (Goa) P. Ltd. (Bom) . . . 441
S. 43B --Business expenditure--Deduction only on actual payment--Law applicable--No disallowance if amount paid before due date for furnishing of return--First proviso to section 43B retrospective in operation--ESI contribution for accounting year relevant to assessment year 1998-99 paid before submission of return--Matter remanded for consideration of applicability of Allied Motors' case and CBDT Circular No. 7 of 2003-- Sudhir Kumar Agarwala v. CIT (Orissa) . . . 452
S. 44BB --Non-resident--Exploration of mineral oils--Special provision for computing profits--Applicable to seismic data acquisition and processing for exploration companies-- Global Geophysical Services Ltd. , In re (AAR) . . . 418
S. 44BBB --Business profits--Special provision--Foreign company--Turnkey power project--Contract for erection of steam turbines etc.--Applicant to deploy expats and work force--Presumptive rate of tax applicable-- Toshiba Plant Systems Services Corporation , In re (AAR) . . . 456
S. 68 --Cash credits--Company--Share capital--Deposits in company--Assessee providing identity and creditworthiness of shareholders and depositors--Amounts could not be added under section 68-- CIT v. Ambuja Ginning, Pressing and Oil Co. P. Ltd . (Guj) . . . 434
S. 69 --Unexplained investment--Finding by Commissioner (Appeals) and Tribunal that explanation regarding investment was reasonable--Amount not assessable as unexplained investment-- CIT v. Byyanna (HUF) (Karn) . . . 448
S. 72 --Business loss--Depreciation--Carry forward and set off--Hotel business carried on by assessee--Agreement with another company for running hotel--Disputes and suit against other company--Hotel business run by court receiver who was a director of assessee-company--Assessee resuming business--No cessation of business--Losses and depreciation carried forward could be set off against profits-- CIT v. Bencomar Hotels (Goa) P. Ltd. (Bom) . . . 441
S. 80HHD --Tour operator--Special deduction--Advances received in foreign exchange placed in short-term deposits in banks--Interest earned in Indian currency--Interest not profits derived from services provided to foreign tourists--Not entitled to benefit under section 80HHD-- Lotus Trans Travels P. Ltd. v. CIT (Delhi) . . . 463
S. 80-IA --Industrial undertaking--Special deduction under section 80-IA --Assessee undertaking manufacturing jobs on behalf of others --Entitled to special deduction-- CIT v. Ambuja Ginning, Pressing and Oil Co. P. Ltd. (Guj) . . . 434
S. 80-IB --Industrial undertaking--Manufacture--Converting raw fish into tinned fish--Processing but not manufacturing--Assessee not entitled to deduction-- CIT v. Gitwako Farma (I) P. Ltd. (Delhi) . . . 471
S. 90 --Non-resident--Income deemed to accrue or arise in India--Condition precedent--Business connection--Carrying out operations in India, wholly or partly, essential--Royalty--Meaning of--Transfer of rights in respect of property--Different from transfer of rights in property--Assessee, a non-resident, engaged in satellite communications and having control of satellites--Providing use of transponder facility on satellite to television companies outside India--Signals from customers' facilities received by transponder on assessee's satellite, amplified and relayed--Cable operators in India receiving and passing them on to customers--Assessee having no business operations in India--No lease of equipment but only use of broadband facility--That transponder had footprint on various continents did not imply process took place in India--Payment not royalty-- Asia Satellite Telecommunications Co. Ltd . v. DIT (Delhi) . . . 340
S. 147 --Reassessment--Notice after four years--Assessee showing receipt of substantial sum in profit and loss account in relation to transfer of division but not making reference thereto in return--Transferor and transferee companies having common directors and operating at same address--Division commenced barely two years before transfer--Copies of agreement not produced--Failure to make full disclosure of material facts--Reassessment valid--Claim that sum received as non-compete fee under restrictive covenant upon transfer of business not established-- Helios and Metheson Information Technology Ltd. v. Asst. CIT (Mad) . . . 403
----Reassessment--Notice--Assessee disclosing fully and truly all material facts necessary for assessment--Notice issued beyond period of four years cannot be sustained-- Yash Raj Films P. Ltd. v. Asst. CIT (Bom) . . . 428
----Reassessment--Validity--Rectification proceedings dropped--Subsequent reassessment proceedings within limitation--Valid-- CIT v. India Sea Foods (Ker) . . . 424
S. 148 --Reassessment--Notice--Assessee disclosing fully and truly all material facts necessary for assessment--Notice issued beyond period of four years cannot be sustained-- Yash Raj Films P. Ltd. v. Asst. CIT (Bom) . . . 428
S. 154 --Reassessment--Validity--Rectification proceedings dropped--Subsequent reassessment proceedings within limitation--Valid-- CIT v. India Sea Foods (Ker) . . . 424
----Rectification of mistakes--Mistake must be obvious--Assessee carrying on hotel business setting off unabsorbed depreciation and loss carried forward--Finding that there had been no cessation of business--No mistake apparent from record--Rectification proceedings to withdraw benefit of set-off--Not valid-- CIT v. Bencomar Hotels (Goa) P. Ltd. (Bom) . . . 441
S. 260A(4) --Appeal to High Court--Powers of court--Power to consider question of law though not formulated at time of admission of appeal-- Helios and Metheson Information Technology Ltd . v. Asst. CIT (Mad) . . . 403
Income-tax Rules, 1962 :
R. 46A --Appeal to Commissioner (Appeals)--Loss on sale of shares--Additional evidence--No objection in remand report to admission of additional evidence--Evidence having direct bearing on quantum of claim--Addition deleted by Commissioner (Appeals) and confirmed by Tribunal--Justified--Work outsourced to sister concern and expenses for undertaking that work allocated on proportionate basis to assessee--Explanation furnished by assessee found to be satisfactory-- CIT v. Virgin Securities and Credits P. Ltd. (Delhi) . . . 396
Interest-tax Act, 1974 :
S. 2(7) --Interest-tax--Interest--Definition--Bank giving loan at lower rate of interest under Export Credit Subsidy Scheme of RBI--Compensation paid to bank by RBI for loss of interest--Amount received from RBI not "interest" under Interest-tax Act-- Punjab National Bank v. CIT (Delhi) . . . 337

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