Section 80HHC: Supreme Court Lays Down Important Law On Meaning Of Turnover

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The following important judgement is available for download at itatonline.org.

CIT vs. Punjab Stainless Steel Industries (Supreme Court)

Meaning of the word "turnover" in s. 80HHC explained. Sale proceeds of scrap is not "turnover" for s. 80HHC. Revenue should encourage assessees to bring in foreign exchange

(i) The word "turnover" means only the amount of sale proceeds received in respect of the goods in which an assessee is dealing in. So far as the scrap is concerned, the sale proceeds from the scrap may either be shown separately in the Profit and Loss Account or may be deducted from the amount spent by the manufacturing unit on the raw material. When such scrap is sold the sale proceeds of the scrap cannot be included in the term 'turnover' for the reason that the unit is engaged primarily in the manufacturing and selling of steel utensils and not scrap of steel. Therefore, the proceeds of such scrap would not be included in 'sales' in the Profit and Loss Account of the assessee (The situation would be different in the case of a person who is primarily dealing in scrap);

(ii) The intention behind enactment of s. 80HHC was to encourage export so as to earn more foreign exchange. For the said purpose the Government wanted to encourage businessmen, traders and manufacturers to increase the export so as to bring more foreign exchange in our country. If the purpose is to bring more foreign exchange and to encourage export, we are of the view that the legislature would surely like to give more benefit to persons who are making an effort to help our nation in the process of bringing more foreign exchange. If a trader or a manufacturer is trying his best to increase his exports, even at the cost of his business in a local market, we are sure that the Government would like to encourage such a person. In our opinion, once the Government decides to give some benefit to someone who is helping the nation in bringing foreign exchange, the Revenue should also make all possible efforts to encourage such traders or manufacturers by giving such business units more benefits as contemplated under the provisions of law.

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Latest:

Radials International vs. ACIT (Delhi High Court)

Gains arising from PMS transactions are capital gains & not business profits

Change In Constitution Of Tax Bench Of Bombay High Court w.e.f 09.06.2014

 

Dear Subscriber,

Change In Constitution Of Tax Bench Of Bombay High Court w.e.f 09.06.2014

There will be a change in the constitution of the Tax Bench of the Bombay High Court w.e.f. 09.06.2014

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Adobe Systems Software Ireland Ltd vs. ADIT (Delhi High Court)

Assessee is bound to furnish a return in response to a s. 148 notice. The reasons for reopening can be given only thereafter. A writ involving disputed factual issues cannot be entertained

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Two Important Judgements On International Taxation Of Employee Secondment Contracts + Agencies

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The following important judgements are available for download at itatonline.org.

Centrica India Offshore Pvt. Ltd vs. CIT (Delhi High Court)

Tax implications of employee secondment contracts explained

(i) The overseas entities required the Indian subsidiary, CIOP, to ensure quality control and management of their vendors of outsourced activity. For this activity to be carried out, CIOP required personnel with the necessary technical knowledge and expertise in the field, and thus, the secondment agreement was signed since CIOP did not have the necessary human resource. The secondees are not only providing services to CIOP, but rather tiding CIOP through the initial period, and ensuring that going forward, the skill set of CIOP's other employees is built and these services may be continued by them without assistance. In essence, the secondees are imparting their technical expertise and know-how onto the other regular employees of CIOP. Indeed, it is admitted by CIOP that the reason for the secondment agreement was to provide support for the initial years of operation, till the necessary skill-set is acquired by the resident employee group. The activity of the secondees is thus to transfer their technical ability to ensure quality control vis-à-vis the Indian vendors, or in other words, "make available‟ their know-how of the field to CIOP for future consumption. The secondment, if viewed from this angle, actually leads to a benefit that transmits the knowledge possessed by the secondees to the regular employees. Indeed, any other reading would unduly restrict the Article 12 of the DTAA, which contemplates not only a formal transfer of intellectual property, but also other techniques and skills ("soft" intellectual property) required for the operation of a business. The skills and knowledge required to ensure that the task entrusted to CIOP – quality control – is carried on diligently certainly falls within the broad ambit of Article 12;

DIT vs. Wizcraft International Entertainment Pvt.Ltd (Bombay High Court)

Commission paid to an agent for services rendered abroad and payment by way of reimbursement of expenses are not taxable in India

The assessee paid remuneration to the artists, to the agent and reimbursed the expenses in connection with the visit and performance of the artists in India. The assessee deducted tax at source on fees paid to the international artists in India. Tax was deducted at source on the payment made to artists for performance in India but it was not deducted at source on the commission paid to Mr. Colin Davie who acted as an agent between the assessee and the artists performed in India. Under Article 18 of the India-UK DTAA, the payment made to the artists and by way of reimbursement has been completely misconstrued inasmuch as the agreements with the artists and the understanding with Mr. Colin Davie would indicate that the payment of commission to him is not covered by Article 18. Mr. Colin Davie never took part in the event organised. He did not exercise any personal activities in India. Mr. Colin Davie did not act as a performing artist or entertainer, all that he was concerned are the services which were rendered outside India. He contacted the artists and negotiated with them for performance in India in terms of the authority given by the assessee. The CIT(A) and Tribunal rightly arrived at the conclusion that Mr.Colin Davie did not perform any services in India, but they were rendered outside India. Therefore, commission income to the agent is not liable to tax in India and there was no obligation on the part of the assessee to deduct the tax at source at the time of making of payment. In so far as payment or reimbursement of expenses in connection with the visit and performance of the artists in India, the amount reimbursed to them was towards air travel and was supported by documents. On that tax need not be deducted.

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Latest:

Monthly (Feb 2014) + Consolidated (Jan to Feb 2014) Digest Of Imp Case Laws

High Court Levies Rs. 50K Fine On Dept For Filing Frivolous Appeal + Dept Beefs Up Strength

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CIT vs. Sairang Developers and Promoters Pvt.Ltd (Bombay High Court)

High Court imposes costs of Rs. 50,000 on AO for filing frivolous appeal & wasting public money & judicial time

Though the Bench clearly indicated to the department's counsel that the appeal had no merit and gave the department an opportunity to withdraw, the department did not do so. HELD by the High Court, passing strictures and imposing costs:

"We do not find how Officers lower down in the hierarchy can take decisions to file Appeals and that too against the decision of the Tribunal. The tendency not to accept any adverse verdict on facts results in frivolous Appeals being filed in this Court. That causes huge loss to the public exchequer and results in wastage of precious judicial time of this Court. All this ought to have been discouraged long time back. The High Court has not adopted a strict approach and that has possibly encouraged the Revenue in filing Appeals to challenge essentially findings of fact and with regard to matters which should stand concluded at the level of the authorities. The officials should realize that the authorities like CIT(A) and the ITAT are envisaged as appellate and possibly final fact finding authorities and at least the Tribunal is last in that hierarchy. The fact finding therefore if demonstrably perverse or palpably erroneous and as would amount to unsettling the settled position in law alone should be questioned by filing Appeals to this Court. However, a routine exercise and by people who do not wish to take any responsibility, results in number of Appeals being filed and pending. This benefits no one and rather defeats larger public interest. The Revenue collection and equally the participation of the assessee in the exercise undertaken by the authorities to assess their income, therefore is affected adversely. None takes a position or decision because of pendency of matters and for a long time. In these circumstances, while dismissing this Appeal, we impose costs quantified at Rs.50,000/. The costs be paid to the assessee within four weeks from today. We at least now expect the authorities to take cognizance and initiate proceedings for recovery of this amount personally from such of the Officers who do not take decisions or postpone them endlessly. A copy of this order be forwarded to the CIT Pune. It should also be forwarded to the Chief CIT, Pune who may decide as to who should pay the costs personally as between them or anybody else who has brought about this situation."

Income Tax Dept Beefs Up Counsel Strength In Bombay High Court

The Income-tax department has, probably in response to the repeated strictures passed by the Courts, appointed 23 advocates to its panel in the Bombay High Court so as to enable better representation of its matters. There are 14 advocates designated as "Senior Standing Counsel" and 9 advocates designated as "Junior Standing Counsel".

It can be seen from the names of the appointees, that a number of them are persons who have retired from senior positions in the department. Probably, the department expects that these personnel will be able to use their experience and in-depth knowledge of tax laws to assist the Court in an effective manner.

The Department must also take note of the fact that the High Court has come down heavily on the practice of the department of filing frivolous appeals. Heavy costs have been imposed. The Tribunal has also recommended the setting of an accountability mechanism to ensure that the AOs do not make blatantly frivolous additions.

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Editor,

 

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Latest:

CBDT Announces Ambitious National Judicial Reference System Project

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CBDT Announces Ambitious National Judicial Reference System Project

Dear Subscriber,

CBDT Announces Ambitious National Judicial Reference System Project

The CBDT has announced the setting up of a "National Judicial Reference System" (NJRS).

The NJRS comprises of two components, the "Appeals repository and Management System" and the "Judicial Research and Reference System".

The Appeals repository is a database of all appeals pending in the ITAT, High Court and Supreme Court. The system will enable the status of the appeals to be tracked with an alert system. The big advantage of this database is that the entire litigation history of a tax payer will be available at the press of a button.

The Judicial Research and Reference System is a database of all decisions of the ITAT, High Courts & the Supreme Court. The cases will be indexed, searchable and cross-linked. The database will also have the relevant statutory enactments, circulars etc.

There are several other interesting aspects of the NJRS which you can read in the CBDT's letter dated 29.04.2014. From the detailed description of the NJRS, it is clear that it will be a mammoth exercise, requiring the active co-operation of a number of agencies, including the judicial bodies.

It is expected that the NJRS will go-live by November/ December 2014. We wish the CBDT good luck for timely and proper implementation of the NJRS.

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Editor,

 

itatonline.org

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Latest:

JM Financial Limited vs. ACIT (ITAT Mumbai)

No s. 14A/ Rule 8D disallowance for investment in shares of subsidiaries & Joint Ventures

Important Verdict On Section 14A/ Rule 8D + Full Bench Verdict On CBDT Low Tax Effect Circular

Dear Subscriber,

 

The following important judgements are available for download at itatonline.org.

JM Financial Limited vs. ACIT (ITAT Mumbai)

No s. 14A/ Rule 8D disallowance for investment in shares of subsidiaries & Joint Ventures

In AY 2009-10, the assessee has specifically raised a point before the AO that 97.82% of the investment is in subsidiary companies and joint venture companies and, therefore, no expenditure was incurred for maintaining the portfolio on these investments or for holding the same. The assessee has also pointed out that these investments are long term investment and no decision is required in making the investment or disinvestment on regular basis because these investments are strategic in nature in the subsidiary companies on long term basis and, therefore, no direct or indirect expenditure is incurred. The department has not disputed this fact that out of the total investment about 98% of the investments are in subsidiary companies of the assessee and, therefore, the purpose of investment is not for earning the dividend income but having control and business purpose and consideration. Therefore, prima facie the assessee has made out a case to show that no expenditure has been incurred for maintaining these long term investment in subsidiary companies. The AO has not brought out any contrary fact or material to show that the assessee has incurred any expenditure for maintaining these investments or portfolio of these investments. In Godrej & Boyce Mfg. Co it was held that s. 14A(2) does not ifso facto empower the AO to apply the method prescribed by Rule 8D straightaway without considering whether the claim made by the assessee is correct. Also, in Garware Wall Ropes it was held that a disallowance u/s 14A cannot be made if the primary object of investment is holding controlling stake in the group concern and not earning any income out of investment. Similarly, in Oriental Structural Engineers (approved by the Delhi High Court) it has been held that s. 14A disallowance cannot be made for investment in subsidiaries and SPVs out of commercial expediency

CIT vs. Shambhubhai Mahadev Ahir (Gujarat High Court – Full Bench)

CBDT's low tax effect circulars have prospective effect

Clause 11 of Instruction No. 3/2011 dated 9.2.2011 specifically states that "this instruction will apply to appeals filed on or after 9.02.2011. However, the cases where appeals have been filed before 9.02.2011 will be governed by the instructions on this subject, operative at the time when such appeal was filed." Similarly, clause 11 of instruction No. 5/2008 dated 15.5.2008 specifically provides that "this instruction will apply to appeals filed on or after 15.05.2008. However, the cases where appeals have been filed before 15.05.2008 will be governed by the instructions on this subject, operative at the time when such appeal was filed". There is, thus, no ambiguity in the instructions of either 2011 or 2008 as regards the applicability of those instructions in respect of the appeals, and, at the same time, it has also been made clear that if those appeals are not filed after the given dates mentioned in those instructions, the fate of the appeals will be governed in accordance with the instructions prevailing on the date of presentation of such appeals. In view of such clear legislative intention, we are unable to hold that even if an appeal is filed prior to 9.02.2011, the same would be barred notwithstanding the fact that at the time of filing such appeal, the same was not barred by the then instructions of the CBDT (Sureshchandra Durgaprasad Khatod reversed, Vijaya V. Kavekar (Bom), Madhukar K. Inamdar (Bom) & other judgements dissented from)

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Editor,

 

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Latest:

Rashmikant Kundalia vs. UOI (Bombay High Court)

S. 234E: High Court grants ad-interim stay against operation of notices levying fee for failure to file TDS statement

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