Sunday, July 24, 2011

Bundle of cases

[2011] 12 taxman112 (BOM.)
FT : Where foreign trade policy has not used expression 'net foreign exchange earning' either while defining conditions of eligibility or conditions of entitlement for Served From India Scheme (SFIS), benefits of SFIS could not be restricted by policy circular with reference to concept of net foreign exchange earning and any action to that effect would involve an amendment of policy and, hence, ultra vires ***********************

[2011] 12 taxman111 (PUNJ. & HAR.)
IT : Where assessee had filed return in response to notice under section 148, it would be presumed that there was valid service of notice
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[2011] 12 taxman110 (DELHI)
CL : A mere money decree passed by a Court of law does not entitle an unsecured creditor to be treated as a secured creditor

[2011] 12 taxman109 (CHENNAI - ITAT)
IT : Carrying on of singular activity of business against other charitable objectives stated in trust deed is not sufficient to claim status of a charitable institution
***********************

[2011] 12 taxman108 (DELHI)
IT : Merely because assessee has not claimed refund in return form itself, it cannot be said that assessee is not entitled to refund ***********************

[2011] 12 taxman107 (SC)
FERA : Finding in an adjudication proceeding is not binding in proceeding for criminal prosecution; in case it is found on merit that there is no contravention of provisions of Act in adjudication proceeding, trial of person concerned shall be in abuse of process of Court ***********************

[2011] 12 taxman106 (SC)
CL : Benefit of section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act not available to private employers, whether individuals, partnerships, proprietary concerns or companies (other than Government companies) ***********************

[2011] 12 taxman112 (BOM.)
FT : Where foreign trade policy has not used expression 'net foreign exchange earning' either while defining conditions of eligibility or conditions of entitlement for Served From India Scheme (SFIS), benefits of SFIS could not be restricted by policy circular with reference to concept of net foreign exchange earning and any action to that effect would involve an amendment of policy and, hence, ultra vires

[2011] 12 taxman111 (PUNJ. & HAR.)
IT : Where assessee had filed return in response to notice under section 148, it would be presumed that there was valid service of notice

[2011] 12 taxman110 (DELHI)
CL : A mere money decree passed by a Court of law does not entitle an unsecured creditor to be treated as a secured creditor

[2011] 12 taxman109 (CHENNAI - ITAT)
IT : Carrying on of singular activity of business against other charitable objectives stated in trust deed is not sufficient to claim status of a charitable institution

[2011] 12 taxman108 (DELHI)
IT : Merely because assessee has not claimed refund in return form itself, it cannot be said that assessee is not entitled to refund

[2011] 12 taxman107 (SC)
FERA : Finding in an adjudication proceeding is not binding in proceeding for criminal prosecution; in case it is found on merit that there is no contravention of provisions of Act in adjudication proceeding, trial of person concerned shall be in abuse of process of Court

[2011] 12 taxman106 (SC)
CL : Benefit of section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act not available to private employers, whether individuals, partnerships, proprietary concerns or companies (other than Government companies)

2011-TIOL-408-HC-DEL-IT

CIT, New Delhi Vs Shri Prem Gandhi (Dated: May 5, 2011)

Income tax - Sections 132(1), 143(2) - Whether, in view of retrospective amendment in Sec 132(1), the Tribunal order stating that Addl Director has no powers to issue warrant for authorisation of search, does not survive - Whether assessee can be allowed to raise a fresh ground of no-service of notice u/s 143(2) before the Tribunal as this issue was argued before the CIT(A). - Revenue's appeal disposed of : DELHI HIGH COURT

2011-TIOL-409-ITAT-MUM + it story

Chiranjeev Lal Khanna Vs ITO, Mumbai (Dated: April 23, 2011)

Income tax - Sections 2(47), 50C, 54, 54EC - Whether grant of redevelopment rights on a property amounts to transfer of property, and thus, gives rise to capital gains, liable to tax - Whether provisions of Sec 50C are invokable in such a case. - Assessee's appeal partly allowed : MUMBAI ITAT;

2011-TIOL-408-ITAT-VIZAG

M/s Susi Sea Foods Pvt Ltd Vs ACIT, Visakhapatnam (Dated: May 9, 2011)

Income tax – Sections 70, 79, 115JA, 220(2) – Whether AO cannot apply sections 70 to 79 of the Income tax Act while computing the amount deductible under clause (iii) for the purpose of book profit as it nowhere prescribes the manner of set off or modalities of carry forward and set off of loss to be followed for book purposes, even though there is no method of computation of brought forward losses and unabsorbed depreciation and its set off is given under the Companies Act. - Assessee's appeal allowed: VISAKHAPATNAM ITAT;

2011-TIOL-407-ITAT-MUM

HCC-L&T Purulia Joint Venture Vs JCIT, Mumbai (Dated: June 24, 2011)

Income tax – Sections 40(a)(ia), 194C – Whether the assessee, a sub contractor, is required to deduct tax at source for the payment made by it to its sub contractor though as per Explanation 1 for the purpose of sub-section (2) of Sec 194C the expression `contractor' shall include a contractor who is carrying out any work in pursuance of a contract between the contractor and the Government of a foreign state or foreign enterprise or any association or body established outside India but does not include within its fold a sub-contractor carrying out any work in pursuance of a sub-contract with a sub subcontractor and the amendment made by the Finance Act 2 of 2009 to cover such payment made by the resident sub-contractor to its sub contractor is applicable w.e.f. 1/10/2009 and cannot be applied to the A.Ys. prior to the said amendment.- Assessee's appeal partly allowed : MUMBAI ITAT;

2011-TIOL-406-ITAT-MUM

JCIT, Mumbai Vs M/s Videocon Industries Ltd (Dated: May 20, 2011)

Income Tax - Section 36(1)(vii) - Whether loss of investment is allowable as business loss - Whether for claiming an amount as bad debt conditions specified in section 36(2)(i) are required to be fulfilled - Whether a capital loss emerging out of previous years can be treated as bad debt - Whether capital loss which accrues as a result of long term investment can be treated as bad debt merely because the benefit of indexation was not taken at the time of computing capital loss. - Revenue's appeal allowed with cost of 5000/-: MUMBAI ITAT;

2011-TIOL-405-ITAT-MUM

Addl.CIT, Mumbai Vs Tribhovandas Bhimji Zaveri (Dated: June 24, 2011)

Income tax – Sections 22, 37, 80IB – Whether, merely because Mumbai office is also involved in the business, the Hyderabad Unit cannot claim Sec 80IB benefits for manufacture of jewellery through various karigars spread across various locations - Whether the assessee is entitled to foreign travelling expenses incurred on the managing partners and their family members – Whether while determining the annual value u/s 22, the municipal valuation should be taken as yardstick for determining the annual value where the actual rent received is less than the municipal valuation. - Assessee's appeal partly allowed : MUMBAI ITAT;

2011-TIOL-404-ITAT-MUM

DCIT, Mumbai Vs M/s Kaizen Commercial Pvt Ltd (Dated: June 10, 2011)

Income Tax - Section 28(iv) - Whether merely because a telecom Company has got licence and has bright future, it can be presumed that contemporaneous value of share, irrespective of it's negative net worth on the day when it got licence, is on higher side and hence any addition in the hands of share holder on presumptive basis is tenable - Whether in the absence of any business relations, any addition can be made in the hands of assessee u/s 28(iv). - Appeal of the revenue is dismissed. : MUMBAI ITAT;

2011-TIOL-403-ITAT-DEL

ACIT, New Delhi Vs Parablic Drugs Ltd (Dated: June 17, 2011)

Income tax – Sections 35(2AB), 35(1)(i), 37(1), 115JB – Whether when assessee gives wrong treatment to R & D expenditure in its books as capital expenditure and competent authorities also deny it benefits of Sec 35(2AB) on this basis, even then assessee's claim of deduction by treating it as revenue expenditure in P&L Accounts is allowable - Whether the amount is deductible u/s 37(1) or 35(1)(i) as the nature of expenditure does not change due to the treatment of the same in the books of account.- Revenue's appeal partly allowed : DELHI ITAT;

2011-TIOL-402-ITAT-DEL

ITO, New Delhi Vs M/s Vijay Bharat Roadlines Pvt Ltd (Dated: June 23, 2011)

Income tax – Sections 40(a)(ia), 194C, Rule 46A – Whether the payments made to lorry/truck owners who merely placed the vehicles at the disposal of the assessee and never involved themselves in the work to be carried out by the assessee, would not attract provisions of section 194C and hence no disallowance can be made u/s 40(a)(ia). - Revenue's appeal dismissed : DELHI ITAT;

2011-TIOL-401-ITAT-INDORE

ACIT, Sagar Vs M/s Vijay Traders (Dated: May 31, 2011)

Income tax – Section 153A, 153C, 143(2) – Whether when the assessment is made u/s 153C without recording proper satisfaction, such assessment is bad in law – Whether where no notice is issued u/s 143(2) after filing of return, assessment made is bad in law.- Revenue's appeal dismissed : INDORE ITAT;

[2011] 12 taxman35 (MUM. - ITAT)
IT : Notional profit arising on account of revaluation of forward foreign exchange contracts on last day of accounting period has to be treated as income of assessee
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[2011] 12 taxman34 (CHENNAI - ITAT)
IT : Technical proprietary information and pre-qualification rights obtained by assessee cannot be treated as goodwill and assessee is entitled to depreciation on these two items of intangible assets

[2011] 12 taxman33 (MUM. - ITAT)
IT : In absence of any evidence showing that expenditure incurred by assessee-company on training of its director, who was son of major shareholder of company, abroad was for purpose of its business, said expenditure could not be allowed as business expenditure under section 37(1)
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[2011] 12 taxman32 (AHD. - ITAT)
IT : Once the depreciation allowable under section 32(1) cannot be allowed or partly allowed, the unabsorbed portion of such depreciation automatically becomes the depreciation of the subsequent year
*****************

[2011] 12 taxman31 (DELHI - ITAT)
IT/ILT : Expression 'shall' has been employed in this rule 10B(4), which make it abundantly clear that current year data of an uncontrolled transaction is to be used for purpose of comparability, while examining international transactions with associate enterprises
*****************

[2011] 12 taxman30 (CAL.)
IT : By Explanation (i) of section 194H commission, which is receivable in future, is within sweep of that section
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[2011] 12 taxman29 (MUM. - ITAT)
IT : Assessee-company having become public company by virtue of section 3(iv)(c) of Companies Act, provisions of section 79 would not apply to it
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[2011] 12 taxman28 (AHD. - ITAT)
IT : While making adjustments in arm's length price, if other income of assessee is excluded from net profit declared by it, other income of comparable companies should also be excluded from their net profit

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