INCOME TAX REPORTS (ITR)
Volume 345 Part 1 (Issue dated 18-6-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
HIGH COURTS
Appeal to Appellate Tribunal --Appeal by Revenue--Summons should be sent to assessee--Income-tax Act, 1961-- Smt. Santosh Singla v . ITO (Delhi) . . . 8
Assessment --Notice--Mandatory--Income-tax Act, 1961, s. 143(2)-- CIT v . Mukesh Kumar Agrawal (All) . . . 29
Block assessment --Tribunal has power to entertain additional evidence--Tribunal ought to have remitted the matter to Assessing Officer for consideration--Income-tax Act, 1961, s. 132--Income-tax (Appellate Tribunal) Rules, 1963, rr. 18(4), 29-- CIT v . Ku. Pa. Krishnan (Mad) . . . 38
Business loss --Real estate business--Amount advanced for purchase of property--Property not transferred and amount not repaid--Loss deductible--Income-tax Act, 1961-- CIT v . New Delhi Hotels Ltd . (Delhi) . . . 1
Search and seizure --Settlement Commission--Jewellery seized to be released under bank guarantee--Proceedings before Settlement Commission abating by change of law--Assessing Officer failing to pass assessment order within time specified--Assessment proceedings in pursuance of search and seizure to be set aside--Income-tax Act, 1961, ss. 132B(3), 153(4), 245D, 245HA-- Rajendra Kumar Verma v . Director General (Investigation) of Income-tax (All) . . . 32
AUTHORITY FOR ADVANCE RULINGS
Non-resident --Investment in Indian company in form of equity and convertible debentures--Sale of investment to holding company of Indian company before conversion of debentures into equity--Debentures remain debt till discharged--Conversion rate determined on basis of period of holding--Gains arising on sale of debentures to be taxed as interest--Income-tax Act, 1961, s. 2(28A)--Double Taxation Avoidance Agreement between India and Mauritius, art. 11(4)-- Z , In re. . . 11
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Double Taxation Avoidance Agreement between India and Mauritius :
Art. 11(4) --Non-resident--Investment in Indian company in form of equity and convertible debentures--Sale of investment to holding company of Indian company before conversion of debentures into equity--Debentures remain debt till discharged--Conversion rate determined on basis of period of holding--Gains arising on sale of debentures to be taxed as interest-- Z ,In re ‘(AAR) . . . 11
Income-tax Act, 1961 :
S. 2(28A) --Non-resident--Investment in Indian company in form of equity and convertible debentures--Sale of investment to holding company of Indian company before conversion of debentures into equity--Debentures remain debt till discharged--Conversion rate determined on basis of period of holding--Gains arising on sale of debentures to be taxed as interest-- Z ,In re (AAR) . . . 11
S. 132 --Block assessment--Tribunal has power to entertain additional evidence--Tribunal ought to have remitted the matter to Assessing Officer for consideration-- CIT v . Ku. Pa. Krishnan (Mad) . . . 38
S. 132B(3) --Search and seizure--Settlement Commission--Jewellery seized to be released under bank guarantee--Proceedings before Settlement Commission abating by change of law--Assessing Officer failing to pass assessment order within time specified--Assessment proceedings in pursuance of search and seizure to be set aside-- Rajendra Kumar Vermav . Director General (Investigation) of Income-tax (All) . . . 32
S. 143(2) --Assessment--Notice--Mandatory-- CIT v . Mukesh Kumar Agrawal(All) . . . 29
S. 153(4) --Search and seizure--Settlement Commission--Jewellery seized to be released under bank guarantee--Proceedings before Settlement Commission abating by change of law--Assessing Officer failing to pass assessment order within time specified--Assessment proceedings in pursuance of search and seizure to be set aside-- Rajendra Kumar Vermav . Director General (Investigation) of Income-tax
(All) . . . 32
S. 245D --Search and seizure--Settlement Commission--Jewellery seized to be released under bank guarantee--Proceedings before Settlement Commission abating by change of law--Assessing Officer failing to pass assessment order within time specified--Assessment proceedings in pursuance of search and seizure to be set aside-- Rajendra Kumar Verma v . Director General (Investigation) of Income-tax (All) . . . 32
S. 245HA --Search and seizure--Settlement Commission--Jewellery seized to be released under bank guarantee--Proceedings before Settlement Commission abating by change of law--Assessing Officer failing to pass assessment order within time specified--Assessment proceedings in pursuance of search and seizure to be set aside-- Rajendra Kumar Vermav . Director General (Investigation) of Income-tax (All) . . . 32
Income-tax (Appellate Tribunal) Rules, 1963 :
Rr. 18(4), 29 --Block assessment--Tribunal has power to entertain additional evidence--Tribunal ought to have remitted the matter to Assessing Officer for consideration-- CIT v . Ku. Pa. Krishnan (Mad) . . . 38
ITR'S TRIBUNAL TAX REPORTS (ITR (TRIB)) Volume 16 : Part 3 (Issue dated : 11-6-2012)
SUBJECT INDEX TO CASES REPORTED IN THIS PART
Appeal to Appellate Tribunal --Grounds of appeal--Question not raised before Assessing Officer or Commissioner (Appeals)--Not a question on which assessee can be aggrieved for appeal to Tribunal--Regular assessment made prior to search allowing special deduction--Disallowance in assessment pursuant to search--Question of jurisdiction to make assessment under section 153A not in issue before Assessing Officer or Commissioner (Appeals)--Does not arise out of order of lower authorities--Pure question of law not requiring fresh facts--Can be raised--Income-tax Act, 1961, ss. 80-IA(4), 253-- All Cargo Global Logistics Ltd. v. Deputy CIT [SB] (Mumbai) . . . 380
Capital asset --Personal effects--Purchase and sale of paintings--Number of paintings too large to be held personal effects--Paintings preserved in packed condition and not displayed in assessee's home--Not personal effects--Income-tax Act, 1961, s. 2(14)(ii)-- V. Sanjay Kumar v. Deputy CIT (Mumbai) . . . 262
Capital gains --Transfer--Meaning of--Business sold as going concern in July 1997--Transfer of land as part of business--50 per cent. of sale consideration received and 50 per cent. placed in escrow account--All rights in land transferred and possession given--Land was transferred in 1997--Gains assessable in assessment year 1998-99--Income-tax Act, 1961, ss. 2(47), 45-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
Capital or revenue expenditure --Expenditure on voluntary retirement scheme of employees--Revenue expenditure--Income-tax Act, 1961, s. 37-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
Deduction of tax at source --Failure to deduct tax--Payment towards purchase of software--Right of use of software limited--Payment towards royalty--Tax to be deducted--Income-tax Act, 1961, ss. 195, 201(1)--Double Taxation Avoidance Agreement between India and Switzerland, art. 12(3)-- ING Vysya Bank Ltd. v. Deputy Director of Income-tax (International Taxation) (Bangalore) . . . 296
Depreciation --Law applicable--Effect of insertion of Explanation 5 to section 32(1) w. e. f. 1-4-2002--Explanation 5 providing for compulsory allowance of depreciation--Not retrospective--Details not furnished--Depreciation not allowable for assessment year 1998-99--Income-tax Act, 1961, s. 32-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
Income --Diversion of income by overriding title--Development authority constituted by State Government--Authorised to collect fees and charges--Major portion of fees and charges credited to separate account and utilized for purposes of development--No distinction among receipts--Fees and charges forming part of balance-sheet of assessee--No diversion of funds by overriding title to State Government--Income was of assessee--Income-tax Act, 1961-- Mussoorie Dehradun Development Authority v. Addl. CIT (Delhi) . . . 358
Loss --Carry forward and set off--Bank--Ready forward transactions--Order of Commissioner (Appeals) allowing loss to be set off against speculation profits--Failure by Assessing Officer to set off--Not a case of furnishing of inaccurate particulars or concealment of income--Disallowance not a ground to initiate penalty proceedings--Income-tax Act, 1961, s. 271(1)(c)--Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
Penalty --Concealment of income--Limitation for passing order--Appeal against penalty--Limitation runs from date of appellate order--Not from date of disposal of miscellaneous application by assessee on other matters--Income-tax Act, 1961, ss. 253, 254, 275(1)(a)-- Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
----Concealment of income--Surrender of income to avoid litigation and buy peace--No concealment of income--Penalty cannot be imposed--Income-tax Act, 1961, s. 271(1)(c)-- ITO v. Rakesh Kumar Gupta (Delhi) . . . 303
Search and seizure --Assessment--Unexplained investment--Payment for painting purchased prior to search made by cheque after search--Not to be treated as unexplained investment--Income-tax Act, 1961, s. 69-- V. Sanjay Kumar v. Deputy CIT (Mumbai) . . . 262
Trading or investment --Purchase and sale of paintings--Details of number of paintings purchased and sold year-wise and amount for which purchase and sale not available on record--Whether activity trading or investment to be decided on basis of such details--Matter remanded-- V. Sanjay Kumar v. Deputy CIT (Mumbai) . . . 262
SECTIONWISE INDEX TO CASES REPORTED IN THIS PART
Double Taxation Avoidance Agreement between India and Switzerland :
Art. 12(3) --Deduction of tax at source--Failure to deduct tax--Payment towards purchase of software--Right of use of software limited--Payment towards royalty--Tax to be deducted-- ING Vysya Bank Ltd. v. Deputy Director of Income-tax (International Taxation) (Bangalore) . . . 296
Income-tax Act, 1961 :
S. 2(14)(ii) --Capital asset--Personal effects--Purchase and sale of paintings--Number of paintings too large to be held personal effects--Paintings preserved in packed condition and not displayed in assessee's home--Not personal effects-- V. Sanjay Kumar v. Deputy CIT (Mumbai) . . . 262
S. 2(47) --Capital gains--Transfer--Meaning of--Business sold as going concern in July 1997--Transfer of land as part of business--50 per cent. of sale consideration received and 50 per cent. placed in escrow account--All rights in land transferred and possession given--Land was transferred in 1997--Gains assessable in assessment year 1998-99-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
S. 32 --Depreciation--Law applicable--Effect of insertion of Explanation 5 to section 32(1) w. e. f. 1-4-2002--Explanation 5 providing for compulsory allowance of depreciation--Not retrospective--Details not furnished--Depreciation not allowable for assessment year 1998-99-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
S. 37 --Capital or revenue expenditure--Expenditure on voluntary retirement scheme of employees--Revenue expenditure--Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
S. 45 --Capital gains--Transfer--Meaning of--Business sold as going concern in July 1997--Transfer of land as part of business--50 per cent. of sale consideration received and 50 per cent. placed in escrow account--All rights in land transferred and possession given--Land was transferred in 1997--Gains assessable in assessment year 1998-99-- Deputy CIT v. Whirlpool of India Ltd. (Delhi) . . . 309
S. 69 --Search and seizure--Assessment--Unexplained inve
stment--Payment for painting purchased prior to search made by cheque after search--Not to be treated as unexplained investment-- V. Sanjay Kumar v. Deputy CIT (Mumbai) . . . 262
S. 80-IA(4) --Appeal to Appellate Tribunal--Grounds of appeal--Question not raised before Assessing Officer or Commissioner (Appeals)--Not a question on which assessee can be aggrieved for appeal to Tribunal--Regular assessment made prior to search allowing special deduction--Disallowance in assessment pursuant to search--Question of jurisdiction to make assessment under section 153A not in issue before Assessing Officer or Commissioner (Appeals)--Does not arise out of order of lower authorities--Pure question of law not requiring fresh facts--Can be raised-- All Cargo Global Logistics Ltd. v. Deputy CIT [SB] (Mumbai) . . . 380
S. 195 --Deduction of tax at source--Failure to deduct tax--Payment towards purchase of software--Right of use of software limited--Payment towards royalty--Tax to be deducted-- ING Vysya Bank Ltd. v. Deputy Director of Income-tax (International Taxation) (Bangalore) . . . 296
S. 201(1) --Deduction of tax at source--Failure to deduct tax--Payment towards purchase of software--Right of use of software limited--Payment towards royalty--Tax to be deducted-- ING Vysya Bank Ltd. v. Deputy Director of Income-tax (International Taxation) (Bangalore) . . . 296
S. 253 --Appeal to Appellate Tribunal--Grounds of appeal--Question not raised before Assessing Officer or Commissioner (Appeals)--Not a question on which assessee can be aggrieved for appeal to Tribunal--Regular assessment made prior to search allowing special deduction--Disallowance in assessment pursuant to search--Question of jurisdiction to make assessment under section 153A not in issue before Assessing Officer or Commissioner (Appeals)--Does not arise out of order of lower authorities--Pure question of law not requiring fresh facts--Can be raised-- All Cargo Global Logistics Ltd. v. Deputy CIT [SB] (Mumbai) . . . 380
----Penalty--Concealment of income--Limitation for passing order--Appeal against penalty--Limitation runs from date of appellate order--Not from date of disposal of miscellaneous application by assessee on other matters-- Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
S. 254 --Penalty--Concealment of income--Limitation for passing order--Appeal against penalty--Limitation runs from date of appellate order--Not from date of disposal of miscellaneous application by assessee on other matters-- Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
S. 271(1)(c) --Loss--Carry forward and set off--Bank--Ready forward transactions--Order of Commissioner (Appeals) allowing loss to be set off against speculation profits--Failure by Assessing Officer to set off--Not a case of furnishing of inaccurate particulars or concealment of income--Disallowance not a ground to initiate penalty proceedings-- Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
----Penalty--Concealment of income--Surrender of income to avoid litigation and buy peace--No concealment of income--Penalty cannot be imposed-- ITO v. Rakesh Kumar Gupta (Delhi) . . . 303
S. 275(1)(a)--Penalty--Concealment of income--Limitation for passing order--Appeal against penalty--Limitation runs from date of appellate order--Not from date of disposal of miscellaneous application by assessee on other matters-- Hongkong and Shanghai Banking Corporation Ltd. v. Deputy Director of Income-tax (International Taxation) (Mumbai) . . . 275
RAJU SHAH
