INCOME TAX REPORTS (ITR)
Volume 348 Part 5 (Issue dated 29-10-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Deduction of tax at source --Payment to non-resident--Deduction at lower rate--Certificate must be obtained from Board--Interest on short-fall--Automatic--Fact that recipient had incurred losses--Not relevant--Income-tax Act, 1961, ss. 195, 201-- CIT v. Chennai Metropolitan Water Supply and Sewerage Board (Mad) . . . 530
Income --Disallowance of expenditure in earning tax-free income--Investments in shares and bonds--Assessing Officer intending to segregate and compute disallowance--Failure by assessee to produce relevant details and particulars--Matter remanded--Income-tax Act, 1961, s. 14A-- CIT v . Machino Plastic Ltd . (Delhi) . . . 523
Reassessment --Notice after four years--Conditions precedent--Failure to disclose material facts necessary for assessment--Interest received and the charge specifically examined by Assessing Officer before passing original assessment order--No allegation of failure by assessee to disclose true and full facts--Reassessment on ground of audit objection--Not valid--Income-tax Act, 1961, ss. 147, 148-- Rose Serviced Apartments Pvt. Ltd . v. Deputy CIT (Delhi) . . . 452
----Reassessment after four years--Validity--Unexplained credits in original assessment--Audit note that only part of amount referable to such credits assessed--Matter investigated--Reassessment proceedings to assess balance of credits--Valid--Income-tax Act, 1961 ss. 147, 148-- Dalmia P. Ltd . v . CIT (Delhi) . . . 469
----Validity--Change of opinion--Meaning of--Applicability of section 114(e) of Evidence Act--Income-tax Act, 1961, s. 147--Evidence Act, 1872, s. 114-- CIT v . Usha International Ltd . [FB] (Delhi) . . . 485
Authority for Advance Rulings --Precedent--Authority not barred from expressing opinion different from view expressed in another earlier ruling-- Castleton Investment Ltd. , In re . . . 537
International transactions --Transfer pricing--Provisions applicable although capital gains not chargeable in terms of DTAA--Income-tax Act, 1961, ss. 92 to 92F-- Castleton Investment Ltd ., In re . . . 537
Minimum alternate tax --Foreign company--Provisions applicable--Income-tax Act, 1961, s. 115JB--Castleton Investment Ltd ., In re . . . 537
Non-resident --Investments in shares in 1993 and 1996 and shares held since then--Shares held as capital assets--Sale to another group company at market rate for consideration--No compulsion to sell shares through stock exchange--No avoidance of tax--Capital gains not chargeable to tax in India in terms of DTAA between India and Mauritius--Section 112(1) attracted--No obligation to withhold tax--But non-resident bound to file return--Income-tax Act, 1961, ss. 2(14), 112(1), 139, 195--Double Taxation Avoidance Agreement between India and Mauritius, arts. 5, 13(4)-- Castleton Investment Ltd ., In re . . . 537
ITR'S TRIBUNAL TAX REPORTS (ITR (TRIB))
Volume 19 : Part 4 (Issue dated : 22-10-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Actual cost --Definition--No third party paying any part of purchase price--Windmills new and not earlier put to use before they were installed at site of assessee--Assessing Officer not entitled to alter cost of windmill--Income-tax Act, 1961, s. 43(1), Expln. 3 -- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
Agricultural income --Income from production of seeds--Spot verification by income-tax authorities showing agricultural operations being carried on--Books of account not rejected--High profit margin not a ground to deny exemption under section 10(1)--Income-tax Act, 1961, s. 10(1)-- Saffa Seeds Producing Farm v.Assistant CIT (Cuttack) . . . 443
Appeals --Monetary limits for appeals by Department--Instruction of CBDT that appeals not to be filed where tax effect less than Rs. 2 lakhs--Real tax effect and not notional tax effect to be taken into account for appeals filed prior to Instruction dated May 15, 2008--Assessee filing return of loss and assessed income negative figure--Appeals of Department to be dismissed in limine.--Income-tax Act, 1961-- Assistant CIT v.Karma Energy Ltd. (Mumbai) . . . 552
Business expenditure --Deduction only on actual payment--Service tax--Liability arising only on receipt by assessee--Finding that liability to pay service tax not existing and not payable during year--Section 43B not applicable--Income-tax Act, 1961, s. 43B-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
----Disallowance--Excessive and unreasonable payments--Lease rent for wind farm--Project financed by IREDA and lease rents payable by assessee structured taking into consideration instalment of principal and interest payable to IREDA by lessor--Payment of lease rent by account payee cheque and lessor accounting for it in its books--Finding that cost price of windmill inflated by Rs. 1 crore--Not sustainable--Income-tax Act, 1961, s. 40A(2)(b)-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
----Disallowance--Payments subject to deduction of tax at source--Reimbursement to holding company by assessee for shared common personnel and utilities--No tax deductible on reimbursement--Payment not to be disallowed--Income-tax Act, 1961, ss. 40(a)(ia), 194C-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
----Disallowance--Sales promotion expenses--Finding that expenses genuine--To be allowed--Income-tax Act, 1961, s. 37-- Assistant CIT v. Sankalp Consumer Products (Mumbai) . . . 455
----Disallowance--SEBI fees--Payment for three years--Not to be amortised--To be allowed in full--Income-tax Act, 1961, s. 37-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
----Foreign exchange deposits given by assessee kept by head office in dollar account to be drawn as and when required--Interest earned from head office lower than interest paid for deposit--Interest paid not to be disallowed to that extent--Income-tax Act, 1961, s. 36(1)(iii)-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
----Foreign travel expenses--Only expenses incurred for purpose of business to be allowed--Income-tax Act, 1961, s. 37-- Assistant CIT v. Sankalp Consumer Products (Mumbai) . . . 455
----Purchase of securities as stock-in-trade--No question of amortising premium paid for purchase of securities over life of securities--Income to be computed with reference to cost of purchase not only when securities sold but also when they mature-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Business income --Business expenditure--Interest and commission received from head office and overseas branches--Interest and commission paid to head office and overseas branches--Interest or commission received not taxable--Interest or commission expenditure incurred towards head office and overseas branches not deductible--No question of disallowance under section 40(a)(i)--Income-tax Act, 1961, ss. 4, 37, 40(a)(i)-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
----Remission or cessation of trading liability--Amount outstanding in name of sister concern for more than three years--Expiry of period of limitation prescribed under Limitation Act cannot extinguish debt but only prevent creditor from enforcing debt--Section 41(1) not applicable--Income-tax Act, 1961, s. 41(1)-- Poabs Rocks Products P. Ltd. v. Deputy CIT (Cochin) . . . 546
Business loss --Loss on revaluation of unmatured forward foreign exchange contracts at rate of exchange prevailing at end of year--Allowable--Assessing Officer to ensure that loss not once again allowed in following year-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Capital or revenue expenditure --Non-compete fee--Is capital expenditure--Income-tax Act, 1961-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
Charitable purpose --Charitable institution--Withdrawal of registration--Amendment of section 2(15) barring exemption where receipts exceed Rs. 10 lakhs--Not to affect on grant of registration under section 12AA--Income-tax Act, 1961, ss. 2(15), 11, 12AA-- Rajasthan Housing Board v. CIT (Jaipur) . . . 524
----Registration of trusts--Cancellation--Law applicable--Power to cancel registration--Cancellation on ground that assessee engaged in transaction of commercial nature--Not permissible--Issue can be examined in assessment proceedings--Order cancelling registration set aside--Income-tax Act, 1961, ss. 2(15), 12A, 12AA(3)-- Gujarat Cricket Association v. Director of Income-tax (Exemption) (Ahmedabad) . . . 520
----Registration--Assessee changing objects--Commissioner to take cognisance of changes and decide continuation of registration--Matter remanded--Income-tax Act, 1961, s. 12A-- Rajasthan Cricket Associationv. CIT (Jaipur) . . . 529
Company --Book profit--Adjustment of depreciation by disallowance on ground of inflated cost--Not permissible--Income-tax Act, 1961, s. 115JB-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
Deemed dividend --Property let to group concerns in preceding year against deposit--No additional letting in year in question--No deposit taken--Sum received from group concerns for setting up new project--Is not deposit but loan--No material to show money-lending was business of creditor company--Loan not given in course of its business--Sum received is deemed dividend--Taxable only to extent of accumulated profits on last day of preceding year--Income-tax Act, 1961, s. 2(22)(e)-- ITL Fabrics P. Ltd. v. Assistant CIT (Mumbai) . . . 499
Depreciation --Asset--Definition--Payment for transfer of business and contracts including clients and client relationship--Not intangible assets--Depreciation cannot be granted--Income-tax Act, 1961, s. 32-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
----Disallowance of depreciation on ground cost of windmills inflated--Onus on Assessing Officer to show that price shown by assessee not actual price--Windmills of parties whose cost considered by Assessing Officer installed in a plain area whereas assessee’s windmills installed in hilly earthquake prone area involving greater work--No documentary evidence to expenses paid as commission and project management fees by seller received back by assessee from those concerns--Disallowance not justified--Income-tax Act, 1961, s. 32-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
----Non-compete fee expenditure--Depreciation to be allowed--Income-tax Act, 1961, s. 32-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
Exemption --Interest on securities--Investment in tax-free securities made out of interest-free funds--To be allowed on gross interest not on net interest--No expenditure to be disallowed in connection with earning of such tax free interest income--Income-tax Act, 1961, s. 14A-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Income --Bank--Interest on a nostro account--Chargeable to tax--No disallowance under section 14A called for--Income-tax Act, 1961, s. 14A-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Industrial undertaking --Special deduction under section 80-IB--Manufacture--Extracting granite from granite hills and crushing granite boulders--Condition under section 80-IB fulfilled--Assessee entitled to deduction--Income-tax Act, 1961, s. 80-IB-- Poabs Rocks Products P. Ltd. v. Deputy CIT (Cochin) . . . 546
Interest on borrowed funds --Funds utilised to group concern--Assessee failing to explain commercial expediency--Interest to be disallowed--Income-tax Act, 1961-- Poabs Rocks Products P. Ltd. v. Deputy CIT(Cochin) . . . 546
Method of accounting --Purchase of securities--Broken period interest paid on purchase included in cost of security--Accounting policy in relation to valuation of public sector bonds changed by directly charging broken period interest to profit and loss account--Changed method consistently followed in later years--Broken period interest paid on public sector undertaking bonds to be allowed as deduction against interest received in respect of broken period-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Non-resident --Deduction for head office expenses--Ceiling--Not to apply where head office incurs expenses exclusively for Indian establishment--Where expenses allocated or apportioned to assessee ceiling to apply--Income-tax Act, 1961, s. 44C-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Reassessment --Reassessment after four years--Failure by assessee to disclose shareholding in company from which loan received--Failure to disclose material facts--Notice after four years permissible--Income-tax Act, 1961, ss. 2(22)(e), 147-- ITL Fabrics P. Ltd. v. Assistant CIT (Mumbai) . . . 499
Refund --Interest on excess refund--Advance tax--Interest--Not to be charged with reference to refund issued under section 143(1)(a) prior to coming into force of provision--Income-tax Act, 1961, ss. 234B, 234D--Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
Revision --Condition precedent--Order of Assessing Officer must be erroneous and prejudicial to Revenue--No error discovered by Commissioner--Commissioner not applying his mind--Order of revision--Not valid--Income-tax Act, 1961, s. 263-- Jayanta Kumar Jena v. ITO (Cuttack) . . . 514
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
S. 2(15) --Charitable purpose--Charitable institution--Withdrawal of registration--Amendment of section 2(15) barring exemption where receipts exceed Rs. 10 lakhs--Not to affect on grant of registration under section 12AA-- Rajasthan Housing Board v. CIT (Jaipur) . . . 524
----Charitable purpose--Registration of trusts--Cancellation--Law applicable--Power to cancel registration--Cancellation on ground that assessee engaged in transaction of commercial nature--Not permissible--Issue can be examined in assessment proceedings--Order cancelling registration set aside-- Gujarat Cricket Association v. Director of Income-tax (Exemption) (Ahmedabad) . . . 520
S. 2(22)(e) --Deemed dividend--Property let to group concerns in preceding year against deposit--No additional letting in year in question--No deposit taken--Sum received from group concerns for setting up new project--Is not deposit but loan--No material to show money-lending was business of creditor company--Loan not given in course of its business--Sum received is deemed dividend--Taxable only to extent of accumulated profits on last day of preceding year-- ITL Fabrics P. Ltd. v. Assistant CIT (Mumbai) . . . 499
----Reassessment--Reassessment after four years--Failure by assessee to disclose shareholding in company from which loan received--Failure to disclose material facts--Notice after four years permissible-- ITL Fabrics P. Ltd. v. Assistant CIT (Mumbai) . . . 499
S. 4 --Business income--Business expenditure--Interest and commission received from head office and overseas branches--Interest and commission paid to head office and overseas branches--Interest or commission received not taxable--Interest or commission expenditure incurred towards head office and overseas branches not deductible--No question of disallowance under section 40(a)(i)-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 10(1) --Agricultural income--Income from production of seeds--Spot verification by income-tax authorities showing agricultural operations being carried on--Books of account not rejected--High profit margin not a ground to deny exemption under section 10(1)-- Saffa Seeds Producing Farm v. Assistant CIT (Cuttack) . . . 443
S. 11 --Charitable purpose--Charitable institution--Withdrawal of registration--Amendment of section 2(15) barring exemption where receipts exceed Rs. 10 lakhs--Not to affect on grant of registration under section 12AA-- Rajasthan Housing Board v. CIT (Jaipur) . . . 524
S. 12A --Charitable purpose--Registration--Assessee changing objects--Commissioner to take cognisance of changes and decide continuation of registration--Matter remanded-- Rajasthan Cricket Association v. CIT(Jaipur) . . . 529
----Charitable purpose--Registration of trusts--Cancellation--Law applicable--Power to cancel registration--Cancellation on ground that assessee engaged in transaction of commercial nature--Not permissible--Issue can be examined in assessment proceedings--Order cancelling registration set aside-- Gujarat Cricket Association v. Director of Income-tax (Exemption) (Ahmedabad) . . . 520
S. 12AA --Charitable purpose--Charitable institution--Withdrawal of registration--Amendment of section 2(15) barring exemption where receipts exceed Rs. 10 lakhs--Not to affect on grant of registration under section 12AA-- Rajasthan Housing Board v. CIT (Jaipur) . . . 524
S. 12AA(3) --Charitable purpose--Registration of trusts--Cancellation--Law applicable--Power to cancel registration--Cancellation on ground that assessee engaged in transaction of commercial nature--Not permissible--Issue can be examined in assessment proceedings--Order cancelling registration set aside--Gujarat Cricket Association v. Director of Income-tax (Exemption) (Ahmedabad) . . . 520
S. 14A --Exemption--Interest on securities--Investment in tax-free securities made out of interest-free funds--To be allowed on gross interest not on net interest--No expenditure to be disallowed in connection with earning of such tax free interest income-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
----Income--Bank--Interest on a nostro account--Chargeable to tax--No disallowance under section 14A called for-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 32 --Depreciation--Asset--Definition--Payment for transfer of business and contracts including clients and client relationship--Not intangible assets--Depreciation cannot be granted-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
----Depreciation--Disallowance of depreciation on ground cost of windmills inflated--Onus on Assessing Officer to show that price shown by assessee not actual price--Windmills of parties whose cost considered by Assessing Officer installed in a plain area whereas assessee’s windmills installed in hilly earthquake prone area involving greater work--No documentary evidence to expenses paid as commission and project management fees by seller received back by assessee from those concerns--Disallowance not justified--Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
----Depreciation--Non-compete fee expenditure--Depreciation to be allowed-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
S. 36(1)(iii) --Business expenditure--Foreign exchange deposits given by assessee kept by head office in dollar account to be drawn as and when required--Interest earned from head office lower than interest paid for deposit--Interest paid not to be disallowed to that extent-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 37 --Business expenditure--Disallowance--SEBI fees--Payment for three years--Not to be amortised--To be allowed in full-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
----Business expenditure--Disallowance--Sales promotion expenses--Finding that expenses genuine--To be allowed-- Assistant CIT v. Sankalp Consumer Products (Mumbai) . . . 455
----Business expenditure--Foreign travel expenses--Only expenses incurred for purpose of business to be allowed-- Assistant CIT v. Sankalp Consumer Products (Mumbai) . . . 455
----Business income--Business expenditure--Interest and commission received from head office and overseas branches--Interest and commission paid to head office and overseas branches--Interest or commission received not taxable--Interest or commission expenditure incurred towards head office and overseas branches not deductible--No question of disallowance under section 40(a)(i)-- Deputy CIT v. Banque Indosuez(Mumbai) . . . 463
S. 40(a)(i) --Business income--Business expenditure--Interest and commission received from head office and overseas branches--Interest and commission paid to head office and overseas branches--Interest or commission received not taxable--Interest or commission expenditure incurred towards head office and overseas branches not deductible--No question of disallowance under section 40(a)(i)-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 40(a)(ia) --Business expenditure--Disallowance--Payments subject to deduction of tax at source--Reimbursement to holding company by assessee for shared common personnel and utilities--No tax deductible on reimbursement--Payment not to be disallowed-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
S. 40A(2)(b) --Business expenditure--Disallowance--Excessive and unreasonable payments--Lease rent for wind farm--Project financed by IREDA and lease rents payable by assessee structured taking into consideration instalment of principal and interest payable to IREDA by lessor--Payment of lease rent by account payee cheque and lessor accounting for it in its books--Finding that cost price of windmill inflated by Rs. 1 crore--Not sustainable-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
S. 41(1) --Business income--Remission or cessation of trading liability--Amount outstanding in name of sister concern for more than three years--Expiry of period of limitation prescribed under Limitation Act cannot extinguish debt but only prevent creditor from enforcing debt--Section 41(1) not applicable-- Poabs Rocks Products P. Ltd. v. Deputy CIT (Cochin) . . . 546
S. 43(1), Expln. 3 --Actual cost--Definition--No third party paying any part of purchase price--Windmills new and not earlier put to use before they were installed at site of assessee--Assessing Officer not entitled to alter cost of windmill-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
S. 43B --Business expenditure--Deduction only on actual payment--Service tax--Liability arising only on receipt by assessee--Finding that liability to pay service tax not existing and not payable during year--Section 43B not applicable-- Ind Global Corporate Finance P. Ltd. v. ITO (Mumbai) . . . 483
S. 44C --Non-resident--Deduction for head office expenses--Ceiling--Not to apply where head office incurs expenses exclusively for Indian establishment--Where expenses allocated or apportioned to assessee ceiling to apply-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 80-IB --Industrial undertaking--Special deduction under section 80-IB--Manufacture--Extracting granite from granite hills and crushing granite boulders--Condition under section 80-IB fulfilled--Assessee entitled to deduction-- Poabs Rocks Products P. Ltd. v. Deputy CIT (Cochin) . . . 546
S. 115JB --Company--Book profit--Adjustment of depreciation by disallowance on ground of inflated cost--Not permissible-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
S. 147 --Reassessment--Reassessment after four years--Failure by assessee to disclose shareholding in company from which loan received--Failure to disclose material facts--Notice after four years permissible--ITL Fabrics P. Ltd. v. Assistant CIT (Mumbai) . . . 499
S. 194C --Business expenditure--Disallowance--Payments subject to deduction of tax at source--Reimbursement to holding company by assessee for shared common personnel and utilities--No tax deductible on reimbursement--Payment not to be disallowed-- Assistant CIT v. Karma Energy Ltd. (Mumbai) . . . 552
S. 234B --Refund--Interest on excess refund--Advance tax--Interest--Not to be charged with reference to refund issued under section 143(1)(a) prior to coming into force of provision-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 234D --Refund--Interest on excess refund--Advance tax--Interest--Not to be charged with reference to refund issued under section 143(1)(a) prior to coming into force of provision-- Deputy CIT v. Banque Indosuez (Mumbai) . . . 463
S. 263 --Revision--Condition precedent--Order of Assessing Officer must be erroneous and prejudicial to Revenue--No error discovered by Commissioner--Commissioner not applying his mind--Order of revision--Not valid-- Jayanta Kumar Jena v. ITO (Cuttack) . . . 514
