Where assessee submits details for loan taken

Dear Friend, while forwarding this mail , please keep the blog address link with it,(available at the bottom of this mail) so the receiver of the mail can see rest of the 140 home remedies. When ever he requires any information.

IT : Where assessee had taken loan from certain concern and had submitted confirmation of said concern along with their PAN, copy of bank statement as well as cash book, it could be said that assessee had proved genuineness of said loan and no addition could be made under section 68 - [2011] 12 taxmann.com 5 (Agra - ITAT)(TM)

Explanation 1 to section 271(1)(c) would be attracted in case assessee make

Explanation 1 to section 271(1)(c) would be attracted in case assessee makes a bogus claim - [2011] 10 taxmann.com 97 (Ahd. - ITAT)

ISSUES CONCERNING TAX TREATY WITH MAURITIUS

ISSUES CONCERNING TAX TREATY WITH MAURITIUS

T.N. PANDEY

EX-CHAIRMAN CBDT

In the span of merely few months, many irons have been put by the Government in the fire because of various pressures to check black money, tax avoidance and evasion. These, inter-alia, relate to Direct Tax Avoidance Agreements (DTAA for short), where the exercises relate to revision of existing DTAAs, entering into new ones and negotiations for new series of exchange of information agreements. Such exercises are part of broader strategy of checking corruption, black money and tax evasion. Almost every day there is mention about these in media either from the Government's side or from other forums.

** ** **

DTAA with Mauritius [`M' for short]

2. This agreement based on UN Model Convention, with certain departures, was notified on 6th December, 1983 and has been the most controversial agreement concerning Direct Taxes, benefiting `M' substantially as a consequence of which, Foreign Direct Investment (FDI) and portfolio investments in companies (nearly 40 & 50 percent of total inflow) are being routed through this island country. `M' has become a big centre for treaty shopping, leading to tax escapement/evasion/avoidance. The agreement is on usual lines based on UN Model, but deviating from it in some vital respects.

Tax on capital gains

3. In the DTAA with `M', the main irritant for India is tax on capital gains. The DTAA spares investors, resident in `M' from capital gain tax on the sale of shares of Indian companies. This is because the tax treaty provides that capital gains arising from sale of such shares by `M' residents would be taxed only in that country and since it does not tax capital gains, the tax becomes zero. Because of this, persons from third countries do treaty shopping, routing their investments through `M' to escape tax. `M' has no large companies and persons of its own origin, who can invest in big way in India and get the treaty benefit. A study needs to be done to support the view that `M' has become merely a centre (conduit) for saving tax to other countries at India's cost.

** ** **

Besides the capital gains, negotiations are necessary in regard to furnishing of information concerning tax matters of interest to India, assistance in investigation of tax delinquency/frauds, bank details, assistance in recovery and other allied matters.

Actually, it would be appropriate to have a consolidated approach – not single out `M' only for treaty reforms and have negotiations with other countries also like Cyprus, Singapore, Netherlands, etc. To have uniform approach, instead of having separate JWGs, it would be more useful to have a single body for negotiations from India's side – a commission or a committee, specially constituted for this purpose. Further, provisions in the DTC, like GAAR, need to be incorporated/strengthened in such a way that India can be in a bargaining position – not under pressure of losing foreign investments routed through countries like `M'. India now is in a position to attract FDI/FII on its own strength. The uncertainty need to be set at rest expeditiously.
--

http://finance.groups.yahoo.com/group/aaykarbhavan/
http://groups.google.com/group/aaykarbhavan
http://finance.groups.yahoo.com/group/It_law_reported/
http://groups-beta.google.com/group/fun-finder
http://finance.groups.yahoo.com/group/le-vech/
http://tech.groups.yahoo.com/group/groups_master/
--
Receive free SMS of finance updates and alert at mobile
Cost free
-----
aaykarbhavan:News about the aykarbhavan
http://labs.google.co.in/smschannels/subscribe/aaykarbhavan
-----
Good and Clean funny, informative motivational SMSes
http://labs.google.co.in/smschannels/subscribe/rajkumarsms
-----
******
Or Join it by sending SMS

go to write messge in your mobile
type

"on aaykarbhavan" /
"on rajkumarsms"

and sen it to 9870807070

Recent case laws

Dear Friend, while forwarding this mail , please keep the blog address link with it,(available at the bottom of this mail) so the receiver of the mail can see rest of the 140 home remedies. When ever he requires any information.

2011-TIOL-363-ITAT-DEL + ca story

M/s Siel Ltd Vs DCIT, New Delhi (Dated: May 20, 2011)

Income Tax - Sections 37, 43B, CBDT Circular 601 of 1990 - Whether when assessee makes a claim u/s 43B, a CA's certificate in place of original tax challan is sufficient to prove that payment was deposited - Whether payment of excise duty on behalf of a going concern of which the assessee has undertaken the liabilities is revenue expense. - Assessee's appeal disallowed : DELHI ITAT;

2011-TIOL-362-ITAT-MUM

LIC Housing Finance Ltd Vs DCIT, Mumbai (Dated: April 29, 2011)

Income tax – Sections 10(33), 10(15), 14A, 143(1), 147, 148, Rule 8D – Whether where all the facts regarding the amount written off for non-convertible debentures are considered by the AO in the original assessment, reassessment proceedings cannot be initiated by issuing notice u/s 148 merely on change of opinion – Whether disallowance cannot be made u/s 14A by applying rule 8D for the period prior to A.Y. 2008-09. - Assessee's appeal allowed : MUMBAI ITAT;

2011-TIOL-361-ITAT-MAD

The Lakshmi Vilas Bank Ltd Vs Addl.CIT, Tiruchirapalli (Dated: May 6, 2011)

Income tax – Sections 36(1)(vii), 263 – Whether where the AO has considered all the points, on the basis of which the CIT initiated proceedings u/s 263, following the decision of the ITAT and High Court in the case of the assessee itself, proceedings initiated u/s 263 are not valid as it is not prejudicial to the interests of the Revenue. - Assessee's appeal allowed : CHENNAI ITAT;

2011-TIOL-360-ITAT-AHM

ACIT, Gandhinagar Vs Gujarat State Energy Generation Ltd (Dated: April 15, 2011)

Income tax – Sections 32, 80IA, 115JB – Whether the assessee which once opted for SLM method of depreciation, can change it to WDV by filing a valid revised return before the assessment is made – Whether the expenses for which the liability has crystallized during the year cannot be treated as prior period expenses – Whether the adjustment can be made in the book profit u/s 115JB for the items which are not mentioned specifically in the explanation to section 115JB – Whether the assessee is entitled to deduction u/s 80IA even when there is no positive income - Assessee's appeal partly allowed: AHMEDABAD ITAT;

2011-TIOL-359-ITAT-AHM

Shantaben Karshanbhai Patel Vs DCIT, Ahmedabad (Dated: December 31, 2010)

Income Tax - Sections 154, 244A(2), 246A - Whether the claim of interest simpliciter is appeallable order before the CIT(A) as per section 246A. - Assessee's appeal dismissed : AHMEDABAD ITAT;

Monetary limit applies in group cases also.

Monetary limit — In group cases also, each single case must be taken up individually to decide the monetary limits for filing appeal before High Court — as held by HPHC in CIT v Steinle Machine Fabric India — In favour of: Others ; ITA No. 36 of 2005

CIT v Steinle Machine Fabric India

High Court of Himachal Pradesh

I.T.A No. 36 of 2005

Deepak Gupta and Sanjay Karol, JJ.

Decided on: 6 May 2011

Counsel appeared:

Ms Vinay and Vandana Kuthiala, Advs. for the appellant .

Mr. Vishal Mohan, Adv. for the respondent

Deepak Gupta, J.(Oral)

This appeal was admitted on the following substantial question of law:-

“Whether the Ld. Tribunal was right in law in not considering the CIT’s main ground for order u/s 263 regarding the Assessing Officer’s failure to invoke the mandatory provisions of sub-sections (8) and (10) of section 801A (sic) and not giving its finding on this issue and yet set aside the order u/s 263 of the CIT. Assessee’s all sales had been made to the sister concern, M/s.Kandhari Beverages Pvt. Ltd. and many of the essential expenses were either very little or totally absent in the P&L account. It is matter of record that the Assessing Officer neither considered nor raised a query about this aspect and, therefore, the question of forming a view, much less a substantial one, by the A.O. did not arise.”

2. At the time of hearing of the appeal, Sh.Vishal Mohan, learned counsel for the respondent raised a preliminary objection that the appeal is not maintainable since the tax effect is less than 4 lacs.

3. In the present case, the entire declared income for the relevant year was Rs.3,94,839/- and, therefore, the tax effect is definitely much less than Rs.4 lacs. Reliance has been placed by Sh.Vishal Mohan, Advocate on Circular No.279/126/98-IT dated March 27, 2000 issued by the Central Board of Direct Taxes.

4. On the other hand, Sh.Vinay Kuthiala, learned counsel for the appellant- revenue submits that clause-3 of the instructions states that where a case involves a substantial question of law of importance or where the same question of law is involved in a number of cases then the appeal may be filed on merits without being hindered by the monetary limits.

5. Sh.Kuthiala in support of his contention has relied upon two judgments of Bombay High Court in Commissioner of Income Tax v Shivaji Works Ltd. 2007 (295) ITR 542 and Commissioner of Income Tax v Chhajer Packaging and Plastics P.Ltd. 2008 (300) LTR 180.

6. In our view, these judgments are not applicable. The Circular is specific that in group cases also, each single case must be taken up individually to decide the monetary limits. It appears that these instructions were issued to avoid unnecessary litigation and also litigation where the tax effect was much less and it waste time and money recovering small amounts but we hasten to add that dismissal of such appeals on the ground that the tax effect is low does not mean that we have given any decision on merits nor have we decided such questions of law. These questions can be decided in appropriate proceedings where the tax effect is more than the limit prescribed in the circular.

7. The argument of Sh. Kuthiala cannot be accepted since the instructions itself clearly state that the monetary limits would apply with reference to each case take singly. The Circular itself envisages that where group cases are involved, each case shall individually satisfy the monetary limits. No doubt, clause-3 of the instructions states that where a case involves a substantial question of law of importance or where the same question of law is involved in a number of cases then the appeal may be filed on merits without being hindered by the monetary limits. This clause envisages despite the effect being not within the monetary limits due to compelling reasons spelt out in this clause the revenue feels that it is necessary to have a judgment of the High Court. No doubt, if such important question is identified and the revenue makes out a case that it had taken a conscious decision to file an appeal, the appeal can be entertained.

8. In the present case, there was no such averment in the ground of appeal that any such conscious decision had been taken. However, we may clarify that we have disposed of the appeal on the ground of maintainability and have not touched the merits of the contentions and our decision shall not be treated as res judicate in any other proceedings. The appeal is disposed of in the aforesaid terms. No costs. .

=============================================================================

Dear Friends : The emails are schedule to be posted in the blog (itronline.blogspot.com)and will sent to the group on various dates and time fixed. Instead of sending it on one day.

=========================================================================

Flats which are acquired on 22-11-2001 and sold on 28-1-2003 are not long-t

Flats which are acquired on 22-11-2001 and sold on 28-1-2003 are not long-term capital asset, not liable for indexation - [2011] 10 taxmann.com 96 (Mum. - ITAT)

Interest attributable to borrowed funds diverted by assessee to its sister

Interest attributable to borrowed funds diverted by assessee to its sister concern, which was a finance company, without charging interest, were to be disallowed - [2011] 10 taxmann.com 108 (Ker.)

Foreign training expenses incurred on son of director, who is not even an e

Foreign training expenses incurred on son of director, who is not even an employee of company, is not an allowable expenditure - [2011] 10 taxmann.com 91 (Mum. - ITAT)

THE PROVISIONS OF SECTION 206AA(1) OF I. T. ACT, 1961 ARE ULTRA VIRES THE CONSTITUTION

THE PROVISIONS OF SECTION 206AA(1) OF I. T. ACT, 1961 ARE ULTRA VIRES THE CONSTITUTION-BEING DISCRIMINATORY

In order to strengthen permanent account number (PAN) mechanism, the Finance (No.2) Act, 2009 inserted section 206AA in the Income-tax Act, 1961 which came into effect from 01-04-2010. This section makes certain provisions relating to collection and recovery of tax to enforce certain requirements in relation to PAN. Sub-section (1) of the newly inserted section prescribes certain punitive rates to be imposed in case a deductee (i.e., a person from whose income tax is deducted at source) who fails to furnish his PAN to the deductor (i.e., to the person deducting such TDS). In this article, the author illustrates by giving examples that the quantum of penalty and/or the penal consequence is not equal in case of the various defaulting deductee and so, on the grounds of discrimination, the provisions of section 206AA(1) are ultra vires the Constitution.

Introduction

Section 206AA of the Income-tax Act, 1961 was introduced by the Finance (No. 2) Act, 2009 and it came into effect from 1-4-2010. This section makes certain provisions relating to collection and recovery of tax to enforce certain requirements in relation to permanent account number (PAN). This section has come into force with effect from 1-4-2010 and it is reproduced below for ready reference:

"206AA. [Requirement to furnish Permanent Account Number. (1) Notwithstanding anything contained in any other provisions of this Act, any person entitled to receive any sum or income or amount, on which tax is deductible under Chapter XVIIB (hereafter referred to as deductee) shall furnish his Permanent Account Number to the person responsible for deducting such tax (hereafter referred to as deductor), failing which tax shall be deducted at the higher of the following rates, namely:—

(i) at the rate specified in the relevant provision of this Act; or

(ii) at the rate or rates in force; or

(iii) at the rate of twenty per cent.

(2) No declaration under sub-section (1) or sub-section (1A) or sub-section (1C) of section 197A shall be valid unless the person furnishes his Permanent Account Number in such declaration.

(3) In case any declaration becomes invalid under sub-section (2), the deductor shall deduct the tax at source in accordance with the provisions of sub-section (1).

(4) No certificate under section 197 shall be granted unless the application made under that section contains the Permanent Account Number of the applicant.

(5) The deductee shall furnish his Permanent Account Number to the deductor and both shall indicate the same in all the correspondence, bills, vouchers and other documents which are sent to each other.

(6) Where the Permanent Account Number provided to the deductor is invalid or does not belong to the deductee, it shall be deemed that the deductee has not furnished his Permanent Account Number to the deductor and the provisions of sub-section (1) shall apply accordingly.]"

The Legislative Intent behind introducing the section

The purpose behind introducing section 206AA(1) has been stated in the Memorandum explaining the provision of the Finance (No. 2) Bill, 2009 as under :

"d. Improving compliance with provisions of quoting PAN through the TDS regime. - Statutory provisions mandating quoting of Permanent Account Number (PAN) of deductees in Tax Deduction at Source (TDS) statements exist since 2001 duly backed by penal provisions. The process of allotment of PAN has been streamlined so that over 75 lakh PANs are being allotted every year. Publicity campaigns for quoting PAN are being run since the last three years. The average time of allotment of PAN has come down to 10 calendar days. Therefore, non-availability of PAN has ceased to be an impediment. In a number of cases, the non-quoting of PAN's by deductees is creating problems in the processing of return of income and in granting credit for tax deducted at source, leading to delays in issue of refunds."

In order to strengthen the PAN mechanism, it is proposed to make amendments in the Income-tax Act to provide that any person whose receipts are subject to deduction of tax at source i.e., the deductee, shall mandatorily furnish his PAN to the deductor, failing which the deductor shall deduct tax at source at higher of the following rates

(i) the rate prescribed in the Act;

(ii) at the rate in force, i.e., the rate mentioned in the Finance Act; or at the rate of 20%.

Provisions Explained

From above, it is clear that the object of section 206AA(1) is to (a) ensure compliance with the PAN mechanism; (b) address problems associated with non-quoting (and not non-obtaining) of PAN, like processing of returns, claiming credit for TDS and granting of refund; and (c) ensure that the assessees do not give reasons like non-issuance of PAN as a reason for not furnishing it, keeping in mind that the PAN allotment machinery has been fully strengthened and streamlined.

** **
**

The sub-section (1) of section 206AA requires any person (hereinafter referred to as the 'deductee'), receiving any sum, income or amount which is liable to tax deduction at source (TDS in short), to furnish his PAN to the person responsible to deduct tax at source (hereinafter referred to as the 'deductor'). In case the deductee fails to furnish his PAN, the deductor is liable to deduct tax on the sum, income or amount ('income' in short) payable to the deductee, at a rate which is higher of:

(i) the rate specified in the Act;

(ii) the rate or rates in force; or

(iii) 20%.

The Provisions are discriminatory

It is clear from the aforesaid sub-section that it prescribes a rate of TDS by way of a punitive measure in case of default by a deductee in furnishing his PAN to the deductor. In cases where the rate specified in the Act and/or the rate/rates in force is less than 20%, the rate of TDS otherwise applicable would be enhanced up to 20% as a punitive measure. But where the rate specified in the Act and/or the rate or rates in force is more than 20%, this sub-section will be of no consequence and as such higher rates would not be further enhanced. In this way, all the defaulting deductees do not bear the same consequences. Given below are some examples in respect of same:

l Example 1

The sub-section discriminates between (a) the defaulting deductees in whose cases the rates of TDS are more than 20%; and (b) those in whose cases the rates of TDS are less. The defaulting deductees in whose case the rates of TDS are more than 20% there is no penal consequence and they are subjected to same rate of TDS in spite of section 206AA. There is no rationale for such a discriminatory treatment and, for this reason, the provisions of this sub-section are ultra vires the Constitution.

l Example 2

In following cases, rates of TDS in case of non-residents are lower than 20% :

Sl. No. Nature of payment Rate of TDS (exc: surcharge, cess, etc.)
1 Section 194LB – Payment by way of interest by infrastructure debt fund 5%
2 Section 195 – Income by way of long-term gains referred to in section 115E 10%
3 Section 195 – Income by way of short-term gains under section 111A 15%
4 Section 195 – Royalty where the agreement is made on or after June 1, 2005 10%
5 Section 195 – Fee for technical services where the agreement is made on or after June 1, 2005 10%
6 Section 196B – Income from Units 10%
7 Section 196C – Income from foreign currency bonds or GDR 10%

Apart from above, it is also observed that wherever the rates are lower than 20%, the same are sought to be enhanced to 20%. In this way, among various defaulting deductees, for the same nature of offence, someone is subject to higher penalty than the other. For example, in cases where rate of TDS is 5%, it is increased by four times and where it is 10%, it is twice the normal rate of TDS. Thus, for similar offences, the quantum of penalty in the shape of punitive rate is not equal in case of all the defaulting deductees and for this reason also, the provision of sub-section (1) is discriminatory and ultra vires the Constitution.

** **
**

It may be observed that wherever the rates are lower than 20%, the same are sought to be enhanced to 20%. In this way, among various defaulting deductees, for the same nature of offence, someone is subject to higher penalty than the other. For example, in cases where rate of TDS is 1%, it is increased by twenty times and where it is 10%, it is twice the normal rate of TDS. Thus, for similar offences, the quantum of penalty in the shape of punitive rate is not equal in case of all the defaulting deductees and, for this reason also, the provisions of sub-section (1) are discriminatory and ultra vires the Constitution.

recent - Case Laws

Income Tax - 2009 - TMI - 34176 - HC

Concept of Mutuality – Taxability of Income received from its members – Co-operative Housing Society - High Court held that concept of mutuality can be tested considering the followings (1) Is there any commerciality involved. (2) From the moneys received are the services offered in the nature of profit sharing or privileges, advantages and conveniences. (3) Are the participants and contributors identifiable and belong to the same class in the case of cooperative housing society. (4) Do the members have the right to share in the surplus and do they have a right to deal with its surpluses. - Once these tests are satisfied, there can be no doubt that the principle of mutuality will apply to a cooperative Housing Society which has its predominant activity, the maintenance of the property of the society which includes its building or buildings and as long as there is no taint of commerciality, trade or business – Transfer fee received from its members it not taxable.

Income Tax - 2009 - TMI - 34175 - HC

Recognition as Scientific and Industrial Research Organization (SIRO) - The aims and objects of the society inter alia includes research in planetary science, astronomy – astrophysics, solar physics and allied subjects. Apart from that other objects are to popularize science among the general public of our country, to conduct short courses on science, astronomy, geography for students and teachers in schools, colleges and universities, to Publish news letters/magazines etc. - The Ministry of Science and Technology, accorded to the Petitioner, recognition as Scientific and Industrial Research Organization (SIRO) – But CBDT refused to recognize u/s 35(1)(ii) – HC after setting aside the order of CBDT ordered the Board to reconsider the matter afresh.

Central Excise - 2009 - TMI - 34174 - HC

Order of the Settlement Commission – request to pay in installments – Extra ordinary jurisdiction of High Court - it is clear that as the order of settlement commission is final and mode of recovery is also set out therein - can a writ court exercising extra ordinary jurisdiction, when the settlement commission has thought it fit not to grant any installment, grant installments assuming that under section 32F(8) there is an implied power to grant installments. This court ordinarily, ought not to interfere in the exercise of its extra ordinary jurisdiction with the order passed by the Settlement Commission - the language of section 32F(10) as it earlier stood read with section 32(7) provided for installments. That is not the case now. - the legislature has expressly done away with the power to make payment by installments. – HC refused to grant relief to pay in installments.

Income Tax - 2009 - TMI - 34173 - HC

PSU – approval of COD before filing an appeal before tribunal - ITAT refused to admit the appeal as no COD approval was obtained – In the present case, the impugned order reveals that the Tribunal has assumed powers which it does not have, for determining whether the appeal is to be admitted or not. The Tribunal has lost sight of the fact that, both the assessee and the Revenue, are statutorily vested with a right under the Act by virtue of section 253(1), 253(2) and 253(4) of the Act to file an appeal or cross-objections. Such right granted by the statute cannot be divested by the Tribunal on an erroneous assumption of powers arrogated to itself under a mistaken belief of law - The appeals filed by the assessee and the Revenue before the Tribunal stand restored to the file of the Tribunal for being heard and decided afresh on the merits in accordance with law.

Income Tax - 2009 - TMI - 34172 - HC

Rate of Depreciation – 100% depreciation on certain goods - The table includes energy saving device in the context and for the purpose of encouraging industries to adopt energy saving measures - While it was possible, in the context of encouraging industrial activity, to bring within the net of exemption, manufacture of products which may even be remotely considered as "paper" – but the same reasoning can not be adopted here - since the table indicates its intention to afford depreciation at the rates mentioned only to the specifically listed equipments - It is not even proved that a drier of the kind mentioned herein is an energy saving device – tribunal is not correct to allow 100% depreciation on fluid bed drier.

Income Tax - 2009 - TMI - 34171 - HC

How to calculate ten years for claiming exemption u/s 80HH – tribunal allowed deduction u/s 80HH for the 11th year on the ground that for the first year there was no specific previous year – held that tribunal is incorrect in allowing deduction for the 11th year – sales tax does not form part of total turnover for the purpose of calculation of deduction under section 80HHC - interest accrued but had not become due in the present assessment year is not assessable to tax for the assessee following the mercantile system of accounting

Income Tax - 2009 - TMI - 34170 - HC

Industrial Undertaking - The expression "manufacture" or "production" are different expressions and the word "production" has a wider meaning - the word "production" under section 10B considering similar expression in section 80IB will have to be given this wider meaning, considering that the expressions are not defined in the Act but the expressions are used in the same Act. The only difference between section 80-IB and section 10B is that section 10B applicable to a 100 per cent. export oriented unit, whereas section 80-IB can be in respect of any unit – held that the cutting, polishing and sizing granites amounted to either manufacturing or processing and accordingly, the assessee was entitled for deduction under section 10B of the Income-tax Act.