ITR (Trib) Volume 10 : Part 1 Issue dated : 04-07-2011

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

Volume 10 : Part 1 (Issue dated : 04-07-2011)

SUBJECT INDEX TO CASES REPORTED IN THIS PART

Appeal to Commissioner (Appeals) --Condonation of delay--Penalty--Assessee passing through difficulties in managing her affairs after death of her husband--Reasonable cause--Commissioner (Appeals) directed to condone delay and decide appeal on merits--Income-tax Act, 1961, s. 271(1)(c)-- Smt. Seema De Sarkar v. ITO (Kolkata) . . . 78

Block assessment --Notice--Assessment of third person under section 158BD—Satisfaction regarding undisclosed income of third person--Has to be recorded prior to completion of assessment of person searched under section 158BC--Income-tax Act, 1961, s. 158BD-- Jayant S. Jain (HUF) v. Deputy CIT (Mumbai) . . . 68

Cash credits --Condition precedent for treatment as income of assessee--Existence of books of account--Bank pass book, profit and loss account and balance-sheet would not constitute books of account--Amounts claimed to be gifts--Assessee not maintaining books of account--Amounts received by account payee cheques--Copies of income-tax returns of donors furnished--No notice to donors--No evidence that gifts were not genuine--Addition of gifts under section 68--Not valid--Income-tax Act, 1961, s. 68-- Smt. Madhu Raitani v. Asst. CIT (Gauhati) . . . 91

Income --Accrual--Sale of land - - Earnest money received for transfer of land--Transaction not taking place in year--Earnest money received not be treated as income in year under consideration--Income-tax Act, 1961-- CIT Deputy v. Shiv Sai Developers (Mumbai) . . . 80

Interest on borrowed capital --Whether assessee holding shares only for controlling shares--Matter remanded--No case for disallowance under section 14A considered in earlier round of proceedings--Provisions of section 14A cannot be invoked in remand--Income-tax Act, 1961, s. 36(1)(iii)-- Questar Investments Ltd. v. Asst. CIT (Mumbai) . . . 73

Reassessment --Validity--Double taxation avoidance--No rule that assessee should pay tax in at least one jurisdiction to be eligible for relief--Assessee having permanent establishment in Malaysia--Income earned in Malaysia taxable there under provisions of Double Taxation Avoidance Agreement between India and Malaysia--No tax actually levied because amount had not been brought into Malaysia--Amount not taxable in India--Reassessment proceedings to tax amount in India--Not valid--Income-tax Act, 1961, s. 147--Double Taxation Avoidance Agreement between India and Malaysia, art. 5 -- Sivagami Holdings P. Ltd. v. Asst. CIT (Chennai) . . . 48

Search and seizure --Block assessment--Undisclosed income--General principles—Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income --Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible--Income-tax Act, 1961, ss. 68, 69, 69A, 69B, 69C, 158B(b), 158BB-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

SECTIONWISE INDEX TO CASES REPORTED IN THIS PART

Double Taxation Avoidance Agreement between India and Malaysia :

Art. 5 --Reassessment--Validity--Double taxation avoidance--No rule that assessee should pay tax in at least one jurisdiction to be eligible for relief--Assessee having permanent establishment in Malaysia--Income earned in Malaysia taxable there under provisions of Double Taxation Avoidance Agreement between India and Malaysia--No tax actually levied because amount had not been brought into Malaysia--Amount not taxable in India--Reassessment proceedings to tax amount in India--Not valid-- Sivagami Holdings P. Ltd. v. Asst. CIT (Chennai) . . . 48

Income-tax Act, 1961 :

S. 36(1)(iii) --Interest on borrowed capital--Whether assessee holding shares only for controlling shares--Matter remanded--No case for disallowance under section 14A considered in earlier round of proceedings--Provisions of section 14A cannot be invoked in remand-- Questar Investments Ltd. v. Asst. CIT (Mumbai) . . . 73

S. 68 --Cash credits--Condition precedent for treatment as income of assessee--Existence of books of account--Bank pass book, profit and loss account and balance-sheet would not constitute books of account--Amounts claimed to be gifts--Assessee not maintaining books of account--Amounts received by account payee cheques--Copies of income-tax returns of donors furnished--No notice to donors--No evidence that gifts were not genuine--Addition of gifts under section 68--Not valid-- Smt. Madhu Raitani v. Asst. CI T (Gauhati) . . . 91

Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income --Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 69 --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 69A --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mis-match in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 69B --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 69C --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 147 --Reassessment--Validity--Double taxation avoidance--No rule that assessee should pay tax in at least one jurisdiction to be eligible for relief--Assessee having permanent establishment in Malaysia--Income earned in Malaysia taxable there under provisions of Double Taxation Avoidance Agreement between India and Malaysia--No tax actually levied because amount had not been brought into Malaysia--Amount not taxable in India--Reassessment proceedings to tax amount in India--Not valid-- Sivagami Holdings P. Ltd. v. Asst. CIT (Chennai) . . . 48

S. 158B(b) --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 158BB --Search and seizure--Block assessment--Undisclosed income--General principles--Transactions recorded in account books can be subject-matter of additions in block assessment--Post-search enquiries can be conducted to determine undisclosed income--Provisions of sections 68, 69, 69A, 69B and 69C applicable--Assessee stock broker--Client mismatch in transactions recorded in books--No evidence that transactions were genuine--Income embedded in transactions includible in block assessment--Brokerage deductible-- Triumph Securities Ltd. v. Deputy CIT [SB] (Mumbai) . . . 1

S. 158BD --Block assessment--Notice--Assessment of third person under section 158BD--Satisfaction regarding undisclosed income of third person--Has to be recorded prior to completion of assessment of person searched under section 158BC-- Jayant S. Jain (HUF) v. Deputy CIT (Mumbai) . . . 68

S. 271(1)(c) --Appeal to Commissioner (Appeals)--Condonation of delay--Penalty--Assessee passing through difficulties in managing her affairs after death of her husband--Reasonable cause--Commissioner (Appeals) directed to condone delay and decide appeal on merits--Smt. Seema De Sarkar v. ITO (Kolkata) . . . 78

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Shares PMS transaction gains are STCG and not business profits

ARA Trading ; Investments Pvt Ltd vs. DCIT (ITAT Pune)

Shares PMS transaction gains are STCG and not business profits

The assessee, engaged in investment in financial instruments, offered short-term capital gains (“STCG”) of Rs. 1.04 crores and LTCG of Rs. 12.57 lakhs. The bulk of the gains arose from a Portfolio Management Scheme (PMS) with ENAM AMC. The AO & CIT (A) assessed the entire gain as business income on the ground that (a) there were a large number of transactions, (b) the assessee had dealt with 5 brokers with 95% of the transactions being with ENAM AMC, (c) there was large volume of purchase and sales in 96 scrips, (d) the only receipts were from share transactions and expenses on bank charges, etc were charged there from. On appeal to the Tribunal, HELD allowing the appeal:

(i) Given the definitions of the term “business” and “capital asset” in s. 2(13) & 2(14), shares, if held for more than 12 months, will be a long-term capital asset, inspite of continued and systematic dealings;

(ii) On facts, as the assessee had engaged a portfolio manager to look after its’ investments and all decisions to buy and sell were taken by the portfolio manager and not by the asessee, the assessee cannot be called a “dealer”;

(iii) The object of the PMS was to maximize the value of the portfolio. It was “wealth maximization” and not “profit maximization”;

(iv) In the balance sheet, the shares were valued at cost and not at lower of cost or market value;

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HC Del: S 147, infavor of assessee

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HC dismissed the appeal and protect the order of Tribunal on reassessment under section 147

Court : Delhi High Court

Brief : : HC dismissed the appeal and protect the order of Tribunal on reassessment under section 147

Citation : COMMISSIONER OF INCOME TAX Versus NARAYAN SECURITIES PVT. LTD.

Judgment :

IN THE HIGH COURT OF DELHI AT NEW DELHI

ITA No. 40/2009

Judgment reserved on : 2nd MAY, 2011

Judgment delivered on : 3rd JUNE, 2011

COMMISSIONER OF INCOME TAX … APPELLANT

Through: Mr. M.P.Sharma, Advocate.

Versus

NARAYAN SECURITIES PVT. LTD. ... RESPONDENT

Through: Mr. Salil Aggarwal, Advocate

CORAM:

HON’BLE MR. JUSTICE A.K.SIKRI

HON’BLE MR. JUSTICE M.L.MEHTA

1. Whether the Reporters of local papers be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

M.L. MEHTA, J.

1. The present appeal filed under Section 260A of the Income tax Act, 1981 (for short ‘the Act’) is directed against the order of the Income Tax Appellate Tribunal (for short ‘Tribunal’) dated 25.07.2008 whereby the Tribunal held the reassessment proceedings under Section 147 to be invalid and quashed the assessment framed by the Assessing Officer under Section 143(3)/147.

2. The Revenue being aggrieved by the said order, is in appealbefore us. The appeal is admitted on the following substantial question of law.

a) Whether ITAT was correct in law and in the facts and circumstances of the case in quashing the re-assessment order passed u/s 143(3)/147 of the Income Tax Act, 1961?

b) Whether ITAT was correct in law in holding that no addition could be made in re-assessment if no additions in respect of the grounds on which the proceedings u/s 147 were initiated had been made by the A.O.?

3. The assessee is a Member of National Stock Exchange and had filed its return of income on 30^thNovember, 1998 for the assessment year 1998-99 declaring income of Rs.84,837/-. Assessing Officer received information from the Additional Director of Income Tax (Inv) (Unit-I, New Delhi) that during the course of search and seizure operation under Section 132 of the Act subsequent investigation was carried out in the case of M/s Rakesh Nagar & Co. it was found that M/s Rakesh Nagar & Co. had deposited huge amount of cash in bank account and issued cheques of various amounts in favour of the assessee. It was found that the bank account was used to launder funds and no real transaction had taken place. It was noted that the assessee had taken money through cheques, which had actually been handed over to the promoters of M/s Rakesh Nagar & Co. for an amount totaling to Rs.8294615/-. It is on this information, after recording reasons, that a notice under Section 148 was issued requiring the assessee to file its true and correct statement of income. The assessee filed reply stating that its return, originally filed, be treated in response to notice under Section 148. In response to notice under Section 143(2) books of accounts, vouchers and bills were called and verified from the return filed by the assessee. The statement of Director of the company was recorded. On perusal of the statement of the Director, the AO had come to the conclusion that there was real trading of shares by the assessee on behalf of M/s Rakesh Nagar & Co. and, therefore,no addition was made on account of the reasons recorded for reopening the case. However, during the re-assessment proceedings Assessing Officer found that the assessee company had incurred losses on account of purchase and sale of shares of Rs.17,98,761/- and also earned profit of Rs.20,89,360/- from other allied activities. The Assessing Officer treated this amount of Rs.17,98,761/- being loss on trading of shares to tax by holding the same to be covered by the explanation to Section 73 of the Act. In appeal, CIT(A) confirmed the addition made by the Assessing Officer. The assessee carried appeal before the Tribunal.

4. The Tribunal relied upon the case of ITO v. Smt. Darshan Kaur of the Amritsar Bench of the Tribuanl and also the case titled CIT v. Atlas Cycle Industries, 180 ITR 319 and CIT v. M.P. Iron Traders 189 CTR 154, holding that the assumption of jurisdiction to frame the assessment by invoking Section 147 of the Income Tax Act was not justifiable in this case and consequently quashed the assessment framed under Section 143(3)/147. It is against this impugned order that the appeal has been preferred by Revenue.

5. The present case is squarely covered by the judgment of this Court in ITA No. 148/2008 titled as Ranbaxy Laboratories Limited v. Commissioner of Income Tax, pronounced today, i.e., 3^rd June, 2011 by this Court.

6. In view of the same, we answer the questions in affirmative in favour of the assessee and against the Revenue and consequently dismiss the appeal.

M.L.MEHTA

(JUDGE)

A.K.SIKRI

(JUDGE)

JUNE 03, 2011

(ITR (Trib) HIGHLIGHTS ISSUE DATED 20-06-2011 Volume 9 Part 8

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

ISSUE DATED 20-06-2011 Volume 9 Part 8

APPELLATE TRIBUNAL ORDERS

--> Where no proof of gifts received on surrender of tenancy rights penalty imposable u/s. 271(1)(c) : Harish P. Mashruwala v. Asst. CIT (Mumbai) [SB] p. 752

--> Assessee entitled to depreciation in accordance with Appendix I as he had satisfied requirement of second proviso to rule 5(1A) : K. K. S. K. Leather Processors P. Ltd. v. ITO (Chennai) p. 758

--> Appeal to Appellate Tribunal : Person alleging mistaken identity cannot appeal against order of penalty : Hirachand Ebha Wadhel v. ITO (Mumbai) p. 773

--> Interest on deposits as well as copies of returns disclosed prior to date of search, addition to be deleted : Yudhvir Ramlal Meni v. Dy. CIT (Ahmedabad) p. 781

--> Search and seizure : Where seized material not disclosing sale proceeds of shops, addition to be deleted : Yudhvir Ramlal Meni v. Dy. CIT (Ahmedabad) p. 781

--> Where no recording of satisfaction by AO of searched persons, assessment of third person not valid : Smt. P. A. Rani v. Asst. CIT (Chennai) p. 798

--> Housing project : Some units in project exceeding 1500 sq.ft. area, deduction u/s. 80-IB allowed pro rata : Sreevatsa Real Estates P. Ltd. v. ITO (Chennai) p. 808

NEWS-BRIEF

--> Double Taxation Avoidance Agreement between India and Mozambique notified

--> The Government of India notified the Double Taxation Avoidance Agreement (DTAA) with the Government of Mozambique for the avoidance of double taxation and for the prevention of fiscal evasion with respect to taxes on income on May 31, 2011.

--> The DTAA provides that business profits will be taxable in the source State if the activities of an enterprise constitute a permanent establishment in the source State. Profits derived by an enterprise from the operation of ships or aircraft in international traffic shall be taxable in the country of residence of the enterprise. Dividends, interest and royalties income will be taxed both in the country of residence and in the country of source. Capital gains from the sale of shares will be taxable in the country of source. The DTAA further incorporates provisions for effective exchange of information and assistance in collection of taxes between tax authorities of the two countries in line with internationally accepted standards including exchange of banking information and incorporates anti-abuse provisions to ensure that the benefits of the Agreement are availed of by the genuine residents of the two countries. The DTAA will provide tax stability to the residents of India and Mozambique and facilitate mutual economic co-operation as well as stimulate the flow of investment, technology and services between India and Mozambique. [Source : www.pib.nic.in dated June 2, 2011]

--> Black money : CBDT plans global information hub

The Central Board of Direct Taxes (CBDT) is coming up with an information hub with a view to fast-tracking money laundering and tax evasion cases and make exchange of tax-related information easier and faster between India and other countries. The exchange of information unit (EoIU) in New Delhi, a part of the Income-tax Department, will provide and exchange information on issues related to direct taxes - suspicious transactions, tax evasion, money laundering, income generated through business activities by companies in India and abroad, and issues covered under the existing Double Taxation Avoidance Agreement (DTAA).

India currently has amended DTAAs with 40 nations for sharing bank and tax-related transactions. "Information will be provided and exchanged between the competent authorities of the two countries, which will be helpful for the newly-created Directorate of Income-tax (Criminal Investigation) in probing cases both in India and abroad", a Finance Ministry official said.

The unit will act as a nodal point, where all information coming to India from other countries including tax havens shall be processed, classified and disseminated to tax authorities across the country. "It is a two-way process and similar information will be provided to tax authorities abroad", the official said. The implementation is in the final stage and the board is looking out for a location outside the North Block to set up the unit. "The software required to operate this unit is ready and once a location is finalised, the unit will be operational," the official said. However, according to a section of tax officials, the shortage of manpower may affect the functioning of the new unit. [Source : www.hindustantimes.com dated June 7, 2011]

Tax evasion may be a criminal offense

In a throwback to the past, the committee on black money is considering making tax evasion a criminal offence. But given the pressure on the Government to crack down on black money, the proposal is back on the table though it might require amendment to the law. The move would create a strong deterrent as evaders simply pay tax and penalty.

In the past, Government had provisions under laws such as FERA to put offenders behind bars even for minor offences. Given the misuse and economic liberalization that led to several controls on foreign capital vanish, the Government repealed it and replaced it with Foreign Exchange Management Act (FEMA). The review is being initiated along with a fresh look at FEMA, Prevention of Money Laundering Act and those dealing with indirect taxes, the official who was present in the committee's meeting said. Members of the committee were also of the opinion that instead of enacting a fresh law to deal with black money, a better option would be to plug the gaps. Given the pressure on the Government to act on black money and corruption, the committee headed by the CBDT chairman has decided that Government agencies would exchange notes in around 10 days and work out the basic structure by the end of June so that the six-month deadline is met.

Over the last few weeks, the Finance Ministry has been moving at full speed and has set up at least three committees related to generation of illicit wealth besides roping in experts to estimate the extent of black money in the economy. [Source : www.economictimes.com dated June 10, 2011]

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