INCOME TAX REPORTS (ITR)
Volume 334 : Part 3 (Issue dated 13-6-2011)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Appeal to Appellate Tribunal --Rectification of mistake--Business loss--Foreign exchange--Loss owing to fluctuation of exchange rates--Disallowance for failure to produce books--Loss allowed for earlier and subsequent years--Appellate Tribunal--Refusal to rectify order--Appeal--Supreme Court--Matter remanded to Tribunal for consideration afresh in light of Woodward Governor--Income-tax Act, 1961, ss. 28, 254(2)-- Perfetti Van Melle India (P) Ltd . v. CIT . . . 259
Appeal to High Court --Appeal by Department--Huge stakes involved--Delay of Department in appealing--High Court to decide the case on merits and not to dismiss appeal on ground of delay--Income-tax Act, 1961, s. 260A-- CIT v. West Bengal Infrastructure Development Finance Corporation Ltd. . . . 269
Assessment --Order passed without granting opportunity to cross-examine--High Court--Writ petition--High Court ought not to set aside entire assessment order--Ought only to direct Assessing Officer to grant opportunity to cross-examine-- ITO v. M. Pirai Choodi . . . 262
Appeal to Commissioner (Appeals) --Powers of Commissioner (Appeals)--Power to admit additional evidence--Question regarding valuation of construction--Commissioner (Appeals) justified in obtaining revised report of DVO and deleting additions--Income-tax Act, 1961--Income-tax Rules, 1962, r. 46A-- CIT v. Om Overseas
Assessment --Best judgment assessment--Investments in property--Unexplained investment--Admission by assessee in survey--Reassessment on basis of observation by Tribunal--No evidence that admission was untrue--Assessment based on admission--Valid--Income-tax Act, 1961, ss. 144, 148-- Hukum Chand Jain v. ITO
----Method of accounting--Construction business--Assessee following mercantile system of accounting and for on-going projects following completed contract method--Assessee regularly following completed contract method and not giving scope for any complaint in any earlier year--Unnecessary for Assessing Officer to invoke section 145(3)--Income-tax Act, 1961, s. 145(3)-- CIT v. SAS Hotels and Enterprises Ltd.
Bad debt --Condition precedent for deduction--Law applicable--Effect of amendment of section 36 w.e.f. 1-4-1989--Writing off debt as irrecoverable sufficient--Income-tax Act, 1961, s. 36(1)(vii)-- CIT v. Sirpur Paper Mills Ltd. (AP) . . . 256
----Provision for non-performing assets--Assessee not entitled to deduction--Not allowable as business loss--Income-tax Act, 1961, s. 36(1)(vii)-- Indbank Merchant Banking Services Ltd. v. Asst. CIT (Mad) . . . 271
Business expenditure --Accounting--Mercantile system of accounting--Gas supplied to assessee by ONGC--Dispute regarding price settled subsequently--Liability to pay accrued during the years in which gas was received--Income-tax Act, 1961-- CIT v. Mahendra Mills Ltd . (Guj) . . . 254
----Amortisation of preliminary expenses--Share capital increased subsequent to establishment of business--No new industrial unit established nor existing industrial undertaking expanded--Disallowance of preliminary expenses justified--Income-tax Act, 1961, s. 35D-- Indbank Merchant Banking Services Ltd. v. Asst. CIT
----Deduction--Expenses on foreign travel--Tribunal disallowing expenses on ground no evidence that visit was for business purpose--No question of law arose--Income-tax Act, 1961, s. 37-- Vithal Overseas v. CIT (P&H) . . . 229
Business income or income from other sources --Interest--Finding that interest was earned on unutilised portion of amount borrowed for business purposes--Interest constituted business income--Income-tax Act, 1961, ss. 28, 56-- CIT v. Varun Shipping Co. Ltd . (Bom) . . . 263
Capital gains --Business income--Capital gains or business income--Income from sale of shares held as investment--Assessable as capital gains--Income-tax Act, 1961, ss. 28, 45-- CIT v. Amit Modi (P&H) . . . 192
Income --Principle of mutuality--Club--Interest earned from fixed deposits with bank out of surplus funds--Principle of mutuality not applicable--Interest earned from fixed deposits taxable--Income-tax Act, 1961, s. 4-- Madras Cricket Club v. ITO
Income from property --Assessment--Co-owners--Assessment to be made on co-owners as individuals and not in the status of an association of person--Income-tax Act, 1961, s. 26-- CIT v. Smt. Sunita Rani Aggarwal (All) . . . 252
Offences and prosecution --Compounding of offences--Conviction and sentence of detention--Subsequent application for compounding of offence--Not maintainable--Income-tax Act, 1961, ss. 276C(2), 278B, 279(2)-- Anil Tools and Forgings v. Chief CIT (P&H) . . . 265
Precedent --Effect of decision of Supreme Court in T. R. F. Ltd. v. CIT [2010] 323 ITR 397 (SC)-- CIT v. Sirpur Paper Mills Ltd. (AP) . . . 256
Rectification of mistakes --Company--Book profits--Return showing losses--Assessment under section 143(1)--Assessing Officer rectifying mistake in unabsorbed depreciation available for set off against profits--Finding that no error in unabsorbed depreciation allowed to be set off in present assessment year while passing original assessment order--Section 154 cannot be invoked--Income-tax Act, 1961, ss. 115JA, 143(1), 154-- CIT v. Eli Lilly and Co. India P. Ltd. (Delhi) . . . 186
Search and seizure --Power to issue warrant of authorisation--Additional Director (Investigation) does not have power to issue warrant--Income-tax Act, 1961, ss. 2(21), (28D), 132-- CIT v. Pawan Kumar Garg (Delhi) . . . 240
Settlement of case --Order passed by Settlement Commission--Order specifically mentioning that it would be void if it were proved to have been obtained fraudulently--Notice under section 245D alleging fraud--Notice could not be quashed--Income-tax Act, 1961, s. 245D-- Chandragiri Construction Co. v. Income-tax Settlement Commission (Mad) . . . 211
Transfer of cases --Condition precedent--Reasons should be disclosed in order communicated to assessee--Reasons recorded in a separate sheet and not communicated to assessee--Does not satisfy requirement under section 127--Commissioner to pass a fresh order--Income-tax Act, 1961, s. 127-- Deep Malhotra v. Chief CIT
Writ --Notice--Writ will not normally issue to show-cause notice--Constitution of India, art. 226-- Chandragiri Construction Co. v. Income-tax Settlement Commission (Mad) . . . 211
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Art. 226 --Writ--Notice--Writ will not normally issue to show-cause notice-- Chandragiri Construction Co. v. Income-tax Settlement Commission
S. 2(21) --Search and seizure--Power to issue warrant of authorisation--Additional Director (Investigation) does not have power to issue warrant-- CIT v. Pawan Kumar Garg (Delhi) . . . 240
S. 2(28D) --Search and seizure--Power to issue warrant of authorisation--Additional Director (Investigation) does not have power to issue warrant-- CIT v. Pawan Kumar Garg (Delhi) . . . 240
S. 4 --Income--Principle of mutuality--Club--Interest earned from fixed deposits with bank out of surplus funds--Principle of mutuality not applicable--Interest earned from fixed deposits taxable-- Madras Cricket Club v. ITO (Mad) . . . 238
S. 26 --Income from property--Assessment--Co-owners--Assessment to be made on co-owners as individuals and not in the status of an association of person-- CIT v. Smt. Sunita Rani Aggarwal (All) . . . 252
S. 28 --Appeal to Appellate Tribunal--Rectification of mistake--Business loss--Foreign exchange--Loss owing to fluctuation of exchange rates--Disallowance for failure to produce books--Loss allowed for earlier and subsequent years--Appellate Tribunal--Refusal to rectify order--Appeal--Supreme Court--Matter remanded to Tribunal for consideration afresh in light of Woodward Governor-- Perfetti Van Melle India (P) Ltd . v. CIT (SC) . . . 259
----Business income or income from other sources--Interest--Finding that interest was earned on unutilised portion of amount borrowed for business purposes--Interest constituted business income-- CIT v. Varun Shipping Co. Ltd . (Bom) . . . 263
----Capital gains--Business income--Capital gains or business income--Income from sale of shares held as investment--Assessable as capital gains-- CIT v. Amit Modi
S. 35D --Business expenditure--Amortisation of preliminary expenses--Share capital increased subsequent to establishment of business--No new industrial unit established nor existing industrial undertaking expanded--Disallowance of preliminary expenses justified-- Indbank Merchant Banking Services Ltd. v. Asst. CIT
S. 36(1)(vii) --Bad debt--Condition precedent for deduction--Law applicable--Effect of amendment of section 36 w.e.f. 1-4-1989--Writing off debt as irrecoverable sufficient-- CIT v. Sirpur Paper Mills Ltd. (AP) . . . 256
----Bad debt--Provision for non-performing assets--Assessee not entitled to deduction--Not allowable as business loss-- Indbank Merchant Banking Services Ltd. v. Asst. CIT (Mad) . . . 271
S. 37 --Business expenditure--Deduction--Expenses on foreign travel --Tribunal disallowing expenses on ground no evidence that visit was for business purpose--No question of law arose-- Vithal Overseas v. CIT (P&H) . . . 229
S. 45 --Capital gains--Business income--Capital gains or business income--Income from sale of shares held as investment--Assessable as capital gains-- CIT v. Amit Modi
S. 56 --Business income or income from other sources--Interest--Finding that interest was earned on unutilised portion of amount borrowed for business purposes--Interest constituted business income-- CIT v. Varun Shipping Co. Ltd .
S. 115JA --Rectification of mistakes--Company--Book profits--Return showing losses--Assessment under section 143(1)--Assessing Officer rectifying mistake in unabsorbed depreciation available for set off against profits--Finding that no error in unabsorbed depreciation allowed to be set off in present assessment year while passing original assessment order--Section 154 cannot be invoked-- CIT v. Eli Lilly and Co. India P. Ltd. (Delhi) . . . 186
S. 127 --Transfer of cases--Condition precedent--Reasons should be disclosed in order communicated to assessee--Reasons recorded in a separate sheet and not communicated to assessee--Does not satisfy requirement under section 127--Commissioner to pass a fresh order-- Deep Malhotra v. Chief CIT (P&H) . . . 232
S. 132 --Search and seizure--Power to issue warrant of authorisation--Additional Director (Investigation) does not have power to issue warrant-- CIT v. Pawan Kumar Garg (Delhi) . . . 240
S. 143(1) --Rectification of mistakes--Company--Book profits--Return showing losses--Assessment under section 143(1)--Assessing Officer rectifying mistake in unabsorbed depreciation available for set off against profits--Finding that no error in unabsorbed depreciation allowed to be set off in present assessment year while passing original assessment order--Section 154 cannot be invoked-- CIT v. Eli Lilly and Co. India P. Ltd. (Delhi) . . . 186
S. 144 --Assessment--Best judgment assessment--Investments in property--Unexplained investment--Admission by assessee in survey--Reassessment on basis of observation by Tribunal--No evidence that admission was untrue--Assessment based on admission--Valid-- Hukum Chand Jain v. ITO (Raj) . . . 197
S. 145(3) --Assessment--Method of accounting--Construction business--Assessee following mercantile system of accounting and for on-going projects following completed contract method--Assessee regularly following completed contract method and not giving scope for any complaint in any earlier year--Unnecessary for Assessing Officer to invoke section 145(3)-- CIT v. SAS Hotels and Enterprises Ltd.
S. 148 --Assessment--Best judgment assessment--Investments in property--Unexplained investment--Admission by assessee in survey--Reassessment on basis of observation by Tribunal--No evidence that admission was untrue--Assessment based on admission--Valid-- Hukum Chand Jain v. ITO (Raj) . . . 197
S. 154 --Rectification of mistakes--Company--Book profits--Return showing losses--Assessment under section 143(1)--Assessing Officer rectifying mistake in unabsorbed depreciation available for set off against profits--Finding that no error in unabsorbed depreciation allowed to be set off in present assessment year while passing original assessment order--Section 154 cannot be invoked-- CIT v. Eli Lilly and Co. India P. Ltd. (Delhi) . . . 186
S. 245D --Settlement of case--Order passed by Settlement Commission--Order specifically mentioning that it would be void if it were proved to have been obtained fraudulently--Notice under section 245D alleging fraud--Notice could not be quashed-- Chandragiri Construction Co. v. Income-tax Settlement Commission
S. 254(2) --Appeal to Appellate Tribunal--Rectification of mistake--Business loss--Foreign exchange--Loss owing to fluctuation of exchange rates--Disallowance for failure to produce books--Loss allowed for earlier and subsequent years--Appellate Tribunal--Refusal to rectify order--Appeal--Supreme Court--Matter remanded to Tribunal for consideration afresh in light of Woodward Governor-- Perfetti Van Melle India (P) Ltd . v. CIT (SC) . . . 259
S. 260A --Appeal to High Court--Appeal by Department--Huge stakes involved--Delay of Department in appealing--High Court to decide the case on merits and not to dismiss appeal on ground of delay-- CIT v. West Bengal Infrastructure Development Finance Corporation Ltd. (SC) . . . 269
S. 276C(2) --Offences and prosecution--Compounding of offences--Conviction and sentence of detention--Subsequent application for compounding of offence--Not maintainable-- Anil Tools and Forgings v. Chief CIT (P&H) . . . 265
S. 278B --Offences and prosecution--Compounding of offences--Conviction and sentence of detention--Subsequent application for compounding of offence--Not maintainable-- Anil Tools and Forgings v. Chief CIT (P&H) . . . 265
S. 279(2) --Offences and prosecution--Compounding of offences--Conviction and sentence of detention--Subsequent application for compounding of offence--Not maintainable-- Anil Tools and Forgings v. Chief CIT (P&H) . . . 265
R. 46A --Appeal to Commissioner (Appeals)--Powers of Commissioner (Appeals)--Power to admit additional evidence--Question regarding valuation of construction--Commissioner (Appeals) justified in obtaining revised report of DVO and deleting additions-- CIT v. Om Overseas (P&H) . . . 202
ITR'S TRIBUNAL TAX REPORTS (ITR (TRIB))
Volume 9 : Part 7 (Issue dated : 13-06-2011)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Assessment --Assessment order assessing loss for relevant year--No requirement to mention assessed losses of earlier years in assessment order--Question of absorption of losses of earlier years would arise only in year of assessment at positive income--Income-tax Act, 1961, s. 147-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
Business expenditure --Disallowance of expenditure relating to non-taxable income--Export--Assessee not claiming exemption--Expenditure allowable--Income-tax Act, 1961, ss. 10A, 14A-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
Business income or income from other sources --Assessee engaged in business of development of software--Premises and equipment including computers of temporarily let--Lease income to be treated as business income--Assessee entitled to depreciation on leased assets--Income-tax Act, 1961, ss. 22, 32, 56-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
Depreciation --Rate of depreciation--Higher rate--Computer--Routers and switches--Meaning of computer and router--Same meaning as in common parlance--Routers and switches integrated with computers to be treated as computers--Entitled to higher rate of depreciation--Income-tax Act, 1961, s. 32-- Deputy CIT v. Datacraft India Ltd. [SB] (Mumbai) . . . 712
Exemption --Export--Development of computer software--Remission or cessation of trading liability--Assessee writing back sums to its profit and loss account--Sum earlier allowed as deduction--Sum written back to be treated as relating to export activity--Income-tax Act, 1961, ss. 10A, 10B, 41(1)-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
Export --Exemption--Carry forward and set off of unabsorbed losses--Prohibition only after end of holiday period--Income-tax Act, 1961, s. 10A(6)(ii)-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
Industrial undertaking --Special deductions under sections 80HH and 80-I--Condition precedent--Industrial undertaking must be new and distinct from existing unit--New plant and machinery installed in existing building on same process line up--Assessee not able to ascertain profits from new plant and machinery--Assessee not entitled to special deductions under sections 80HH and 80-I in respect of new plant and machinery--Income-tax Act, 1961, ss. 80HH and 80-I-- Joint CIT v. Thirani Chemicals Ltd . [SB] (Delhi) . . . 696
Interest on borrowed capital --Interest-free advances--Deduction allowed by Tribunal for earlier years--Interest cannot be disallowed--Income-tax Act, 1961, s. 36(1)(iii) -- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
Penalty --Compulsory audit of accounts--Object of assessee to promote and develop game of hockey in country and not involving any business activity--Source of income is grant of income from Government--Provision requiring compulsory audit of account not applicable to assessee--Commissioner (Appeals) justified in cancelling penalty--Income-tax Act, 1961, ss. 44AB, 271B-- ITO v. Indian Hockey Federation (Delhi) . . . 692
Reassessment --Differences between balance of creditors and debtor--Details of nature of differences in accounts not provided--No explanation how sum total of differences amounted to income of assessee--Cannot be brought to tax in reassessment proceedings--Income-tax Act, 1961, s. 147-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
-- --Discrepancies in stock register and undervaluation of stock--Explanation of assessee regarding discrepancies to be examined--Matter remanded--Income-tax Act, 1961, s. 147, Expln. 2-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
-- --Expenditure incurred on commission paid to selling agents--No evidence of services rendered by agents nor payments made in past to agents--No inference that expenditure incurred for purpose of business--Case of underassessment of income--Can be brought to tax in reassessment proceedings--Income-tax Act, 1961, s. 147-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
----Expenditure incurred on telephone, maintenance and vehicles--Disallowance on basis of orders of earlier years--Cannot amount to other income brought to notice of Assessing Officer in reassessment proceedings--Income-tax Act, 1961, s. 147-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
----General principles-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
Words and phrases --"Income chargeable to tax has escaped assessment" meaning of-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
S. 10A-- Business expenditure--Disallowance of expenditure relating to non-taxable income--Export--Assessee not claiming exemption--Expenditure allowable-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
---- Exemption--Export--Development of computer software--Remission or cessation of trading liability--Assessee writing back sums to its profit and loss account--Sum earlier allowed as deduction--Sum written back to be treated as relating to export activity -- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 10A(6)(ii)-- Export--Exemption--Carry forward and set off of unabsorbed losses --Prohibition only after end of holiday period-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 10B-- Exemption--Export--Development of computer software--Remission or cessation of trading liability--Assessee writing back sums to its profit and loss account--Sum earlier allowed as deduction--Sum written back to be treated as relating to export activity-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 14A-- Business expenditure--Disallowance of expenditure relating to non-taxable income--Export--Assessee not claiming exemption--Expenditure allowable-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 22-- Business income or income from other sources--Assessee engaged in business of development of software--Premises and equipment including computers of temporarily let--Lease income to be treated as business income--Assessee entitled to depreciation on leased assets-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 32-- Business income or income from other sources--Assessee engaged in business of development of software--Premises and equipment including computers of temporarily let--Lease income to be treated as business income--Assessee entitled to depreciation on leased assets-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
---- Depreciation--Rate of depreciation--Higher rate--Computer--Routers and switches--Meaning of computer and router--Same meaning as in common parlance--Routers and switches integrated with computers to be treated as computers--Entitled to higher rate of depreciation-- Deputy CIT v. Datacraft India Ltd. [SB] (Mumbai) . . . 712
S. 36(1)(iii)-- Interest on borrowed capital--Interest-free advances--Deduction allowed by Tribunal for earlier years--Interest cannot be disallowed-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
S. 41(1)-- Exemption--Export--Development of computer software--Remission or cessation of trading liability--Assessee writing back sums to its profit and loss account--Sum earlier allowed as deduction--Sum written back to be treated as relating to export activity-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 44AB-- Penalty--Compulsory audit of accounts--Object of assessee to promote and develop game of hockey in country and not involving any business activity--Source of income is grant of income from Government--Provision requiring compulsory audit of account not applicable to assessee--Commissioner (Appeals) justified in cancelling penalty-- ITO v. Indian Hockey Federation (Delhi) . . . 692
S. 56-- Business income or income from other sources--Assessee engaged in business of development of software--Premises and equipment including computers of temporarily let--Lease income to be treated as business income--Assessee entitled to depreciation on leased assets-- WNS Global Services P. Ltd. v. Addl. CIT (Mumbai) . . . 662
S. 80HH-- Industrial undertaking--Special deductions under sections 80HH and 80-I --Condition precedent--Industrial undertaking must be new and distinct from existing unit--New plant and machinery installed in existing building on same process line up--Assessee not able to ascertain profits from new plant and machinery--Assessee not entitled to special deductions under sections 80HH and 80-I in respect of new plant and machinery-- Joint CIT v. Thirani Chemicals Ltd . [SB] (Delhi) . . . 696
S. 80-I-- Industrial undertaking--Special deductions under sections 80HH and 80-I--Condition precedent--Industrial undertaking must be new and distinct from existing unit--New plant and machinery installed in existing building on same process line up--Assessee not able to ascertain profits from new plant and machinery--Assessee not entitled to special deductions under sections 80HH and 80-I in respect of new plant and machinery-- Joint CIT v. Thirani Chemicals Ltd . [SB] (Delhi) . . . 696
S. 147-- Assessment--Assessment order assessing loss for relevant year--No requirement to mention assessed losses of earlier years in assessment order--Question of absorption of losses of earlier years would arise only in year of assessment at positive income-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
---- Reassessment--Differences between balance of creditors and debtor--Details of nature of differences in accounts not provided--No explanation how sum total of differences amounted to income of assessee--Cannot be brought to tax in reassessment proceedings-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
----Reassessment--Expenditure incurred on commission paid to selling agents--No evidence of services rendered by agents nor payments made in past to agents--No inference that expenditure incurred for purpose of business--Case of underassessment of income--Can be brought to tax in reassessment proceedings-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
----Reassessment--Expenditure incurred on telephone, maintenance and vehicles--Disallowance on basis of orders of earlier years--Cannot amount to other income brought to notice of Assessing Officer in reassessment proceedings-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
S. 147, Expln. 2 --Reassessment--Discrepancies in stock register and undervaluation of stock--Explanation of assessee regarding discrepancies to be examined--Matter remanded-- Nuware India Ltd. v. Deputy CIT (Delhi) . . . 728
S. 271B-- Penalty--Compulsory audit of accounts--Object of assessee to promote and develop game of hockey in country and not involving any business activity--Source of income is grant of income from Government--Provision requiring compulsory audit of account not applicable to assessee--Commissioner (Appeals) justified in cancelling penalty--ITO v. Indian Hockey Federation (Delhi) . . . 692
CA.RAJU SHAH
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